Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 99-168         |
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**SECOND REPORT AND ORDER**

**Adopted:** March 8, 2000 **Released:** March 9, 2000

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

TABLE OF CONTENTS

Paragraph

I. INTRODUCTION AND EXECUTIVE SUMMARY 1

II\. BACKGROUND 3

III\. SERVICE RULES 6

A. Band Plan 7

1\. Protecting Public Safety Operations 7

2\. Licenses for the Guard Bands 25

B. Licensing Rules 52

1\. Regulatory Status 53

2\. Eligibility and Use Restrictions 56

3\. Size of Service Areas for Geographic Area Licensing 68

4\. License Term; Renewal Expectancy 72

5\. Performance Requirements 74

6\. Disaggregation and Partitioning of Licenses 81

7\. Public Notice of Initial Applications; Petitions to Deny 86

8\. Foreign Ownership Restrictions 89

C. Operating Rules 91

1\. Applicability of General Common Carrier Obligations; Forbearance 92

2\. Equal Employment Opportunity 95

D. Other Technical Rules 97

E. Competitive Bidding 102

1\. Statutory Requirements 102

2\. Incorporation by Reference of Part 1 Standardized Auction Rules 104

3\. Small Business Definitions 106

IV\. PROTECTION OF TELEVISION SERVICES 111

V. CANADIAN AND MEXICAN BORDER REGIONS 115

VI\. PROCEDURAL MATTERS AND ORDERING CLAUSES 116

Appendix A: LIST OF PARTIES A-1

Appendix B: LIST OF PARTIES B-1

Appendix C: FINAL RULES C-1

# Introduction and EXecutive Summary 

1.  In this Second Report and Order, we adopt service rules for
    licensing Guard Bands that encompass six megahertz of spectrum in
    the 746-764 MHz and 776-794 MHz bands (the "700 MHz band") that have
    been reallocated for commercial use from their previous use for the
    broadcasting service.[^1] In the *700 MHz First Report and Order,*
    we adopted service rules for thirty of the thirty-six megahertz
    reallocated for commercial use,[^2] and established two paired guard
    bands, one of 4 megahertz and one of 2 megahertz,[^3] located
    adjacent to spectrum allocated for public safety use.[^4] This
    Second Report and Order adopts licensing, technical, and operational
    rules for the remaining six megahertz.

2.  Specifically, in this Second Report and Order we make the following
    determinations for licensing and operations in the 700 MHz Guard
    Bands:

    • To minimize the potential for harmful interference to public
    safety operations in the immediately adjacent 700 MHz spectrum, we
    adopt a package of interference protections modeled on the
    interference standards within the 700 MHz public safety spectrum.
    Thus, 700 MHz public safety licensees should experience no greater
    interference risk from Guard Band users than from other public
    safety licensees. Accordingly, we will require entities operating in
    the Guard Bands to comply with specified "out-of-band emission"
    criteria, and with prescribed frequency coordination procedures that
    include advance notification to the Commission-recognized public
    safety frequency coordinators and adjacent area Guard Band users. To
    reduce the potential for such harmful interference to public safety
    operations, we also find that entities operating in the Guard Bands
    should not be permitted to employ a cellular system architecture, an
    architecture not used by public safety licensees. These restrictions
    will give the fullest effect to the Congressional mandate to ensure
    that public safety licensees in the 700 MHz band operate free of
    interference from any new commercial users in that band.

    • We will assign licenses in the Guard Bands to Guard Band Managers
    using competitive bidding. The Guard Band Manager will be a new
    class of commercial licensee who will be engaged in the business of
    leasing spectrum for value to third parties on a for-profit basis.
    Guard Band Managers will be required to adhere to strict frequency
    coordination and interference rules, and control use of the spectrum
    so as to facilitate protection for public safety. The Guard Band
    Manager may subdivide its spectrum in any manner it chooses and make
    it available to any system operator, or directly to any end user for
    fixed or mobile communications, consistent with the frequency
    coordination and interference rules specified for these bands. We
    believe that Guard Band Manager licensing for the Guard Bands is an
    effective and efficient way to manage this spectrum to protect
    public safety operations in adjacent bands.

    • We will allow the Guard Band Manager the flexibility to subdivide
    its spectrum, and lease it to third party users without having to
    secure approval for the transfer or assignment of its license.
    Additionally, although we adopt a performance standard under which
    the Guard Band Manager will be required to provide substantial
    service during the term of its license, the Guard Band Manager will
    be able to meet that standard by leasing spectrum, rather than by
    incurring the substantial capital costs associated with system
    buildout. This licensing represents an innovative spectrum
    management approach that should enable parties to more readily
    acquire spectrum for varied uses, while streamlining the
    Commission's spectrum management responsibilities.

    • We will not impose any restrictions on the type of customers with
    whom Guard Band Managers may seek to do business. We will also give
    Guard Band Manager licensees significant flexibility, within the
    technical constraints necessary to protect public safety, to tailor
    use of their assigned spectrum.

    • We will auction licenses for both the 2 megahertz and the 4
    megahertz Guard Bands on the basis of 52 Major Economic Areas
    (MEAs). MEAs will facilitate greater participation in the auction
    and allow a larger number and more diverse pool of Guard Band
    Managers than nationwide or larger regional licensing areas,
    resulting in increased competition and broader flexibility in
    spectrum offerings by Guard Band Managers. We also will provide an
    opportunity for both aggregation and partitioning of geographic
    areas to suit a wide variety of possible business plans, as long as
    it can be shown that such aggregation or partitioning will not
    adversely affect public safety.

    • To facilitate the Commission's compliance with its statutory
    obligation to deposit the proceeds from the auction of licenses in
    the 700 MHz bands by September 30, 2000, we delegate to the Wireless
    Telecommunications Bureau authority to suspend our payment deadlines
    in Sections 1.2107(b) and 1.2109(a) of the Commission's Rules[^5]
    and require that winning bidders on all licenses in the 30 megahertz
    spectrum block and the Guard Bands pay the full balance of their
    winning bids upon submission of their long-form applications
    pursuant to Section 1.2107(c) of our rules.[^6]

# Background

3.  The 746-806 MHz band has historically been used exclusively by
    television stations (Channels 60 through 69), and incumbent
    television broadcasters are permitted by statute to continue
    operations in this band until their markets are converted to digital
    television.[^7] The Balanced Budget Act of 1997 directed the
    Commission to reallocate 24 megahertz of this spectrum for public
    safety use and 36 megahertz of this spectrum for commercial use.[^8]
    The Balanced Budget Act of 1997 also directed the Commission to
    commence competitive bidding for the commercial use spectrum after
    January 1, 2001.[^9] In November 1999, however, Congress enacted a
    consolidated appropriations statute revising this instruction. The
    1999 legislation accelerates the schedule for auction of the
    commercial spectrum bands, and requires that the proceeds from the
    auction of these bands be deposited in the U.S. Treasury by
    September 30, 2000.[^10]

4.  In the *700 MHz First Report and Order*, we provided for two license
    bands -- one of 20 MHz and one of 10 MHz -- that address the
    increasing demand for broadband wireless access capacity. The 20
    megahertz segment consists of paired 10 megahertz blocks, and the 10
    megahertz segment consists of paired 5 megahertz blocks.[^11] These
    spectrum blocks can potentially be used for advanced wireless
    services, such as high-speed Internet access, and next generation
    broadband wireless services, as well as new broadcasting services
    that meet the applicable technical parameters. To protect public
    safety licensees in bands immediately adjacent to these 700 MHz
    bands, we also provided for two Guard Bands, one of 4 megahertz (two
    paired 2 megahertz bands) and one of 2 megahertz (two paired 1
    megahertz bands).[^12] We determined to license the Guard Bands to
    allow for effective and valued use of the spectrum, and stated that
    we would require users of these Guard Bands to minimize interference
    to public safety licensees through technical and operational
    measures to be determined in a subsequent Report and Order.[^13] .

5.  In the weeks immediately preceding adoption of the *700 MHz First
    Report and Order*, the Commission received a large number of *ex
    parte* filings addressing the technical and operational standards to
    be applied to the Guard Bands. Parties advanced conflicting
    arguments on the specific technical, operational and licensing
    regulations that are necessary to adequately protect adjacent public
    safety operations.[^14] Moreover, a number of the more recent
    filings reflected new representations and analyses of these issues
    by both potential bidders and the public safety community. In order
    to supplement the record and provide all interested parties with an
    opportunity to address issues relating to the technical and
    operational standards the Commission should establish for the Guard
    Bands, the Wireless Telecommunications Bureau issued a *Public
    Notice*[^15] seeking comment on certain specific technical and
    operational issues.[^16] The Report and Order we adopt here
    addresses the technical, operational, and licensing requirements for
    the Guard Bands.

# SERVICE RULES

6.  Many of the service rules we adopted in the *700 MHz First Report
    and Order* for the 30 megahertz spectrum block in the 746-764 and
    776-794 MHz bands are such that we find no basis on which to
    establish a different rule for the remaining 6 megahertz of spectrum
    in those bands. Therefore, except for rules that we expressly
    address in this *Second Report and Order*, we adopt for the Guard
    Bands (746-747/776-777 MHz and 762-764/792-794 MHz), for the reasons
    stated in the *700 MHz First Report and Order*, the same technical,
    operational, and licensing rules that we adopted for the 747-762 MHz
    and 777-792 MHz bands. Accordingly, where applicable, we will amend
    our rules that currently reference the 747-762 MHz and 777-792 MHz
    bands to reference the Guard Bands as well.

## Band Plan

### Protecting Public Safety Operations

7.  **[Background]{.underline}.** Section 337(d)(4) states that the
    Commission "shall establish rules insuring that public safety
    services licensees using spectrum reallocated pursuant to subsection
    (a)(1) shall not be subject to harmful interference from television
    broadcast licensees."[^17] The Conference Report pertaining to that
    section states that the Commission should ensure that public safety
    service licensees in the 746-806 MHz band "continue to operate free
    of interference from any new commercial licensees."[^18]

8.  In the *700 MHz First Report and Order,* we concluded that licensees
    operating in the 747-762 MHz and 777-792 MHz bands would be required
    to provide out-of-band and spurious emission protection to services
    outside each licensee's assigned spectrum by, at a minimum,
    attenuating power below the transmitter power (P) by at least 43 +
    10 log P dB for any emission on all frequencies outside the
    licensee\'s authorized spectrum \-- except for emissions that fall
    within the GPS band.[^19] To provide additional interference
    protection to operations in the public safety bands, we required an
    attenuation below transmitter power for base and fixed stations
    operating in the 747-762 MHz band and fixed stations operating in
    the 777-792 MHz band by at least 76 + 10 log P dB per 6.25 kHz in
    the 764-776 MHz and 794-806 MHz public safety bands, and an
    attenuation below the transmitter power for mobile and portable
    stations operating in the 777-792 MHz band by at least 65 + 10 log P
    dB per 6.25 kHz in the 764-776 MHz and 794-806 MHz public safety
    bands. In arriving at this decision, we were guided by Congress's
    concern that 700 MHz public safety service licensees be able to
    operate free from harmful interference from new commercial
    licensees, and therefore adopted technical rules that we believed
    would provide adequate protection to public safety licensees
    operating in these bands.

9.  In the *700 MHz First Report and Order*, we deferred to this
    proceeding the establishment of the technical criteria for operation
    in the bands of commercial spectrum immediately adjacent to the
    764-776 MHz and 794-806 MHz public safety bands -- *i.e*., the
    746-747 MHz, 762-764 MHz, 776-777 MHz, and 792-794 MHz bands. We
    designated these bands as "Guard Bands,"[^20] and, because of the
    close proximity of the Guard Bands to the public safety spectrum,
    stated our intent "to adopt more stringent interference protection
    standards"[^21] for these bands than we had established for the
    747-762 MHz and 777-792 MHz bands (the "30 megahertz" bands). We
    simultaneously released a *Public Notice* seeking further comment on
    possible technical and operational criteria to achieve our goal of
    providing superior protection to public safety from the Guard Bands,
    including: the OOBE limits that should apply to licensees operating
    in the Guard Bands; whether the Commission should restrict operation
    in the Guard Bands to those entities that would not use an
    architecture that employs an intense, cellular-like frequency re-use
    pattern; and, to the extent no restrictions are placed on the nature
    of the system architecture of the licensee operating in the guard
    bands, what other limitations should be placed on licensees because
    of the important need to protect public safety.[^22] We received
    comments from 22 parties in response to the *Public Notice*.[^23]

10. Wireless equipment manufacturers, such as Com-Net Ericsson, EF
    Johnson, and Dataradio, contend that one way to protect public
    safety is to require that equipment operating in the Guard Bands
    adhere to the OOBE criteria recently adopted for the 700 MHz public
    safety band.[^24] Equipment manufacturers as well as various members
    of the public safety community, such as APCO, AASHTO, and IACP,
    assert that Guard Band licensees should be required to frequency
    coordinate with public safety frequency coordinators as a means of
    ensuring appropriate protection to public safety.[^25] Certain of
    these commenters, as well as others, argue that protection of public
    safety can be achieved by imposing both of these requirements.[^26]

11. Commenters disagree on the issue of whether we should restrict
    operation in the Guard Bands to those entities that would not use an
    architecture that employs an intense, cellular-like frequency re-use
    pattern. Certain service providers argue that we should not prohibit
    any particular type of system architecture in the Guard Bands.[^27]
    For instance, FreeSpace argues that adoption of the particular
    technical and operational rules it proposes for the Guard Bands
    would meet our objective to provide more stringent interference
    protection standards for the Guard Bands and would obviate the need
    to impose restrictions on the type of system architecture used in
    the Guard Bands.[^28]

12. On the other hand, several commenters, including public safety
    groups, believe that we should not allow cellular architectures,
    even if licensees using that architecture employ frequency
    coordination procedures. APCO notes that cellular architecture
    greatly increases the potential for interference to public safety
    operations.[^29] LMCC and IMSA also strongly oppose the use of
    cellular architectures by commercial providers in the Guard
    Bands.[^30] The IACP also opposes the use of cellular and
    cellular-like architectures in the Guard Bands, citing recent
    instances of interference caused to police radio systems from
    cellular-type systems.[^31]

13. Motorola argues that interference situations among systems that are
    of similar architecture to public safety systems \-- *e.g*.,
    high-powered, two-way communications systems \-- can be addressed
    through frequency and operational coordination procedures, but that
    systems with cellular architectures create a high density of
    potential interference sources within public safety service areas,
    which would compromise public safety communications in those areas.
    Motorola contends that such a large number of potential interference
    sources cannot be effectively managed through frequency and
    operational coordination.[^32] Similarly, Com-Net Ericsson concludes
    that no set of OOBE limits and/or frequency coordination procedures
    could address the interference that would be caused by cellular-like
    systems.[^33]

14. **[Discussion]{.underline}.** Based on the record before us, we
    adopt a set of measures that together will provide the strong degree
    of protection to public safety we seek from Guard Band operations.
    These measures constitute a package of interference protections
    modeled on the interference standards within the 700 MHz public
    safety spectrum. We require entities operating in the Guard Bands to
    adhere to the same OOBE criteria that we adopted for 700 MHz public
    safety users and to coordinate their frequency use with public
    safety frequency coordinators. We conclude that the ACCP OOBE
    limits, in combination with the requirement of frequency
    coordination, are necessary to appropriately provide a greater
    degree of protection to public safety from interference than the
    OOBE limits we adopted for the 30 megahertz band. We also restrict
    operation in the Guard Bands to entities that do not use a cellular
    system architecture.[^34] The combination of the similar deployment
    scenarios and the use of the ACCP OOBE and frequency coordination
    will create an operating environment under which public safety and
    neighboring Guard Bands users will be able to co-exist in these
    adjoining bands as well and as effectively as public safety
    licensees will be able to co-exist among themselves within the
    public safety bands.[^35]

15. We reiterate our conclusion from the *First Report and Order* that,
    because of the Guard Bands' proximity to the public safety bands, we
    must adopt more stringent interference protection requirements for
    the Guard Bands than we adopted for the 30 megahertz bands.
    Significant technical reasons require us to treat Guard Band users
    differently and to impose more stringent restrictions on their
    operations. A public safety receiver is susceptible to interference
    not only from out-of-band energy that falls *within* its
    passband,[^36] but also from energy from unwanted emissions located
    *outside* its passband -- energy that can cause interference to the
    operation of the receiver. This result occurs because, as FreeSpace
    correctly notes, no receiver filter can perfectly pass a desired
    signal while also perfectly rejecting unwanted signals.[^37]
    Transmissions from any number of sources, both originating within
    the Guard Bands and within the 30 megahertz bands can place energy
    into a public safety receiver and cause these types of interference.
    Most importantly, however, due to the design of receiver filters,
    which more strongly reject signals the farther they are from the
    passband, the existence and severity of this interference increases
    when the interfering source is spectrally closer to the receiver's
    passband.[^38] For a transmitter operating in a Guard Band, which is
    immediately adjacent to the public safety band, emissions would be
    relatively unattenuated, and would fall squarely within the spectrum
    immediately beyond the public safety receiver's passband. For a
    transmitter operating in the 30 megahertz spectrum, however,
    emissions must be attenuated to the 43 + 10 log P dB level before
    entering the Guard Band spectrum and then attenuated further, to a
    76 or 65 + 10 log P dB level, before entering a public safety band.
    Thus, if similar transmissions (*e.g*., transmissions with similar
    powers and antenna heights) originate in the Guard Band and in the
    30 megahertz spectrum, considerably more interference would be
    caused by transmissions originating in the Guard Bands.[^39] For
    this reason, we conclude that we should impose more stringent
    operational restrictions on systems operating in the Guard Bands
    than on systems operating in the 30 megahertz bands.

16. To address the special interference problems resulting from the
    spectral proximity between Guard Band and public safety systems, we
    implement a package of interference protections modeled on the
    interference standards within the 700 MHz public safety spectrum.
    When public safety communications is at issue, we want to minimize
    the likelihood of interference, and whenever possible, to employ
    "tried and true" methods and procedures that will have the greatest
    likelihood of success. We have thus determined that the best way to
    protect public safety from operations in the Guard Bands is, first,
    to adopt the two-pronged approach of requiring Guard Band equipment
    to meet the ACCP OOBE criteria and requiring Guard Band users to
    comply with frequency coordination procedures.

17. We are therefore requiring that entities operating in the Guard Band
    adhere to the same interference protection regime that governs 700
    MHz public safety users. Thus, equipment operating in the Guard
    Bands will have to adhere to the same ACCP OOBE criteria that we
    adopted for 700 MHz public safety users. In deciding that equipment
    operating in the Guard Bands should meet these OOBE criteria, we
    agree with commenters that adopting the same OOBE limits for
    equipment in both the Guard Bands and the public safety bands will
    enable users of Guard Band equipment to provide the same effective
    technical interference protection to public safety users as users of
    public safety equipment provide to themselves.[^40] As we decided in
    our *700 MHz Public Safety Order*, requiring equipment operating in
    the 700 MHz public safety band to meet the ACCP OOBE criteria
    provides the appropriate method for ensuring adjacent channel
    interference protection to 700 MHz public safety equipment.[^41] By
    adopting this same criteria for Guard Band equipment, we provide the
    same, effective technical interference protection to public safety
    communications from such equipment.

18. To ensure that public safety users attain the same level of
    interference protection from Guard Band users as they attain from
    other public safety users, we also are requiring that Guard Band
    users employ frequency coordination procedures in cooperation with
    the 700 MHz public safety coordinators. Through frequency
    coordination a Guard Band licensee and a public safety licensee can
    select operating frequencies so that such frequencies are as far
    from one another as possible. For example, if a Guard Band user
    seeks to operate on spectrum near the public safety band in a
    particular geographic area, a public safety licensee in that area
    could operate on frequencies somewhat removed from that spectrum,
    and vice-versa.[^42] The frequency coordination process then becomes
    one of advance cooperation between parties in an effort to locate
    base stations and select frequencies so as to minimize the
    likelihood of interference once systems become operational.[^43] We
    believe that it is a procedure that is an essential requirement for
    Guard Band users because of the fact that such users are operating
    on spectrum immediately adjacent to 700 MHz public safety licensees.

19. We also conclude that, in order to provide the interference
    protection to public safety that we require from Guard Band
    operations, we must prohibit cellular system architectures in the
    Guard Bands. The frequency coordination we require of entities
    operating in the Guard Bands can be accomplished without great
    difficulty when the Guard Band users' systems consist, as do public
    safety systems, of base stations operating at a single site that
    provides coverage to a large geographic area. The process would be
    fundamentally different and much more difficult, however, if a Guard
    Band user employed a cellular architecture. As Motorola points out,
    such systems, by design, produce large numbers of base stations
    within a relatively small geographic area -- each with the
    capability of causing interference to the reception of signals to
    public safety mobiles and portables.[^44] Although coordinating
    frequencies for each and every one of these base stations with the
    various public safety systems operating in the area would not be
    impossible as a theoretical matter, as a practical matter it would
    be a complex, uncertain, and resource-intensive task for both
    commercial and public safety users. As discussed below, the public
    safety community is highly skeptical that such coordination would be
    successful, and we share this concern. The potential for
    interference to public safety receivers if such coordination were
    not successful is a risk the public safety community views as a
    significant threat, and is a burden we are unwilling to impose on
    them. Thus, we conclude that we will not permit entities that employ
    a cellular system architecture to operate in the Guard Bands.

20. This risk of interference to public safety from systems using a
    cellular architecture appears particularly great for systems using
    very small cells. FreeSpace, for example, seeks spectrum in the 700
    MHz band for the purpose of implementing a system that will provide
    fixed wireless Internet services to the home. It intends to
    construct a system that will consist of very small cells, each of
    which will contain a single "base station" situated at a residence,
    and transmitting data at DSL speeds, to and from other nearby homes.
    We conclude that locating such a system in spectrum adjacent to
    public safety licensees would be problematic for several reasons.
    First, from a practical standpoint, the ability to coordinate
    frequencies with public safety licensees on large numbers of base
    stations to remove the risk of interference will be extremely
    difficult, if possible at all. Second, FreeSpace's base stations
    would be located in residential communities, where there is the
    ever-present possibility that public safety officers (*e.g*., police
    and fire personnel) may need to communicate on their mobile and
    portable radios in a variety of life-threatening situations.[^45]
    Finally, given FreeSpace's description of its service, its base
    stations, in peak times, likely would be operating virtually
    continuously, increasing the potential for interference to public
    safety mobile and portables at any given point in time.[^46]

21. We are not persuaded by FreeSpace's arguments that a cellular
    architecture prohibition is unnecessary. For example, it proposes to
    meet an OOBE limit of 87 + 10 log P for emissions from fixed
    stations into the 764-776 MHz public safety bands, which is more
    stringent than the limit we adopted for systems operating in the 30
    megahertz bands.[^47] In addition, FreeSpace has proposed a series
    of extensive frequency coordination rules that would*, inter alia*,
    require Guard Band users to "develop and maintain a centralized
    database identifying the 'real time' location (*e.g*., via GPS) and
    operating frequencies of all base stations," with Public Safety
    coordinators having access to this database; and require Guard Band
    users to "maintain centralized, dynamic control over the operation
    and frequency use of each of its base stations."[^48] For reasons
    explained more fully below, we are not persuaded that these measures
    can be safely relied upon to protect public safety operations from
    interference.

22. We first disagree with certain of FreeSpace's technical arguments
    and assumptions supporting its contention that a system operating
    under its proposed rules would not cause significant interference to
    public safety licensees. For instance, FreeSpace calculates that
    compliance with its proposed 87 + 10 log P OOBE limit for fixed
    stations operating in Guard Band spectrum adjacent to the 764-776
    MHz public safety band would result in zones of only 12 meters in
    radius around such stations where interference would be caused to
    public safety mobile and portable receivers.[^49] We believe that
    FreeSpace has underestimated the interference risk to public safety.
    For example, FreeSpace arrives at the 12-meter distance by assuming
    that its signals will be attenuated by "clutter." We find that this
    is an inappropriate assumption given that the FreeSpace interfering
    signal will generally be "line-of-sight" -- *i.e*., only a short
    distance to a nearby public safety mobile or portable receiver.
    FreeSpace incorrectly assumes the same clutter factor as for other
    systems that transmit signals over a much greater distance, and this
    enables FreeSpace to derive the relatively small 12-meter average
    interference zone for its system. In addition, the prospect of
    creating potentially hundreds of such interference zones, even if
    they are as small as 12 meters in radius, within the area likely to
    be served by a public safety base station gives us considerable
    cause for concern. Each potential source of interference, especially
    if, as FreeSpace anticipates, such sources are situated in homes in
    residential areas, increases our concern, and leads us to the
    conclusion that a system with the type of architecture proposed by
    FreeSpace should not be permitted in the Guard Bands.[^50] Moreover,
    where public safety is implicated, we also believe we must take
    account of "worst case" interference scenarios \-- *i.e*., where
    public safety personnel are attempting to communicate while situated
    at the edge of their system's service area.[^51]

23. We also conclude that FreeSpace's proposed enhanced frequency
    coordination procedures are not sufficient to overcome the concerns
    that we and the public safety community share about possible
    interference from its system. As an initial matter, we remain
    uncertain as to whether FreeSpace's various proposals -- *e.g*., use
    of active power control mechanisms, the maintenance of a centralized
    database of operating frequencies, the capability for dynamic
    control frequency assignments, *etc*. -- would necessarily prevent
    occurrences of interference to public safety communications (*i.e*.,
    correcting an interference problem after the fact is unacceptable
    when that problem disrupts communications associated with critical
    safety-of life situations). We are also reluctant to adopt
    procedures that would be tailored to a particular entity's
    technology or stated capability (no other party has supported these
    requirements or has indicated an ability to meet these
    requirements). Finally, the public safety community has expressed
    skepticism as to whether FreeSpace's proposed procedures could in
    fact be developed and implemented. APCO expresses concern about
    whether "complex" frequency coordination procedures could actually
    be accomplished "from technical, operational, and economic
    perspectives," and further states that while FreeSpace's proposal
    "has certain theoretical attractions, \[APCO has\] grave concerns as
    to whether it would work in reality."[^52] We concur with the
    concerns raised by the public safety community about the ability of
    FreeSpace to implement its frequency coordination procedures. In
    light of the potential impacts on public safety's ability to fulfill
    its public interest responsibilities, we therefore conclude that we
    should adopt a course that minimizes the risk of interference from
    dissimilar systems in the Guard Bands and, accordingly, prohibit the
    use of those bands by entities who would employ a cellular system
    architecture.

24. Our decision here to adopt technical restrictions on cellular
    architectures in the Guard Bands is grounded in concerns regarding
    the potential for harmful interference to users in the adjacent
    public safety spectrum. We nonetheless note that systems using
    cellular architectures may participate in the 10 and 20 MHz band
    auction. In addition, the Commission recently announced an auction
    of broadband PCS licenses that would make additional spectrum
    available for systems using cellular architectures.[^53] The
    Commission also currently expects to begin an auction of narrowband
    PCS licenses during the first quarter of 2001.[^54] Narrowband PCS
    spectrum has similar propagation characteristics and may be suitable
    for many of the applications considered in the 700 MHz band.

### Licenses for the Guard Bands

25. **[Background]{.underline}.** In the *NPRM*, we sought comment on
    the extent to which, consistent with the statute, spectrum in the
    746-764 MHz and 776-794 MHz bands should be available for private
    mobile and private fixed radio services.[^55] Specifically, we noted
    that the Commission had sought comment in another rulemaking
    proceeding on whether to establish a new class of licensee called a
    "Band Manager"[^56] and requested comment in this proceeding on
    whether the 746-764 and 776-794 MHz bands should be licensed to Band
    Managers. As outlined in the *Balanced Budget Act Notice*, the Band
    Manager would apply for a radio license, subject to competitive
    bidding, and would make portions of its licensed spectrum available
    to eligible users through private contractual arrangements. The
    *NPRM* sought comment on a range of issues raised in the *Balanced
    Budget Act Notice* regarding Band Manager licensing as applied to
    the 746-764 MHz and 776-794 MHz bands.[^57] Some of those issues
    were: whether Band Manager licensing is consistent with the
    Commission's spectrum management obligations under the
    Communications Act; whether eligibility and use restrictions should
    be established for the Band Manager license; whether any specific
    enforcement measures should apply to Band Managers; whether to adopt
    other measures that might promote competition among Band Managers;
    and whether to adopt rules to ensure fair and nondiscriminatory
    access by prospective end users to Band Manager spectrum.[^58] As
    proposed in the *Balanced Budget Act Notice*, a Band Manager would
    be eligible to apply for a radio license and enter into contractual
    agreements to make portions of its spectrum available to eligible
    end users for a length of time not to exceed the expiration of the
    initial license term. Therefore, the Band Manager would be a
    Commission licensee and would be responsible for its spectrum end
    users' compliance with the Commission\'s rules.

26. **[Discussion]{.underline}**. We will license a new class of
    commercial user in the Guard Bands, called a Guard Band
    Manager.[^59] This new approach will serve the paramount need to
    protect public safety operations on Channels 63, 64, 68, and 69 from
    harmful interference and to promote the efficient use of this
    spectrum. This Guard Band Manager licensee will have many of the
    attributes discussed in the *NPRM* and the *Balanced Budget Act
    Notice*, but, for reasons developed in the record and described
    below, it will also operate somewhat differently.

27. We will assign the Guard Band spectrum to Guard Band Managers using
    competitive bidding, as required by Section 337(a)(2) of the
    Communications Act.[^60] The Guard Band Manager will be a new class
    of commercial licensee engaged solely in the business of
    leasing[^61] for value spectrum to third parties on a for-profit
    basis. The Guard Band Manager may subdivide its spectrum in any
    manner it chooses and make it available to system operators, or
    directly to end users for fixed or mobile communications, consistent
    with the frequency coordination and interference rules specified for
    these bands. Guard Band Managers effectively will serve as "demand
    aggregators" that make spectrum available on a commercial basis to
    facilitate all types of spectrum use that are consistent with the
    technical restrictions we adopt for these bands.

28. The Guard Band Manager will be responsible for distributing the
    licensed spectrum among its customers and will be permitted to
    apportion spectrum based on both geographic area and frequency. Such
    spectrum apportionment will differ from traditional geographic
    partitioning and spectrum disaggregation because it will not involve
    the transfer or assignment of the Guard Band Manager's license to
    other parties.[^62] The Guard Band Manager will coordinate the use
    of frequencies among its customers to minimize interference. It will
    also be responsible for resolving interference conflicts among its
    customers and, in the first instance, among its customers and
    neighboring users of spectrum licensed to other Guard Band Managers
    or other licensees.

29. As a "spectrum broker," the Guard Band Manager licensee will have an
    incentive to maximize efficient use of the spectrum, consistent with
    the technical limitations in this band. Compared with traditional
    licensing techniques involving site-by-site technical rules
    administered by the Commission and the frequency coordinating
    advisory committees, a Guard Band Manager licensee will have more
    flexibility to "tailor" the use of this spectrum (e.g., for
    short-term uses or specific geographic needs) in a manner that
    maximizes efficiency for the benefit of those able to make use of
    this spectrum under the designated technical restrictions. We
    believe implementing such new licensing approaches in appropriate
    circumstances will promote the development and rapid deployment of
    new technologies, products, and services for the benefit of the
    public, recovery for the public of a portion of the value of the
    spectrum, and efficient and intensive use of the spectrum.[^63]

30. *Advantages of Guard Band Manager Licenses.* Our principal reason
    for licensing Guard Band spectrum to Guard Band Managers is that
    this is the most effective and efficient way to manage this spectrum
    while protecting public safety operations in adjacent bands. Guard
    Band Managers will be required to adhere to strict frequency
    coordination and interference rules, and control use of the spectrum
    so as to facilitate protection for public safety. We believe that
    Guard Band Manager licensing for these bands represents an
    innovative spectrum management approach that should enable parties
    to more readily acquire spectrum for varied uses, while streamlining
    the Commission's spectrum management responsibilities.[^64] We also
    believe there is a significant benefit to having a single entity in
    a service area that is responsible for coordinating the selection of
    Guard Band frequencies to be used and the operating parameters of
    the sites to be constructed. The Guard Band Manager license will
    carry with it important responsibilities, paramount among them the
    obligation to control use of the Guard Band spectrum to ensure that
    operations on these frequencies do not interfere with public safety.

31. We conclude that the Guard Band Manager license will have several
    other advantages as well. The Guard Band Manager license will
    provide a mechanism for market-based transactions in wireless
    capacity at a time when wireline capacity is being freely traded as
    a commodity in the marketplace. On the wireline side, spot secondary
    markets have emerged for the purchase, sale, and lease of wholesale
    telecommunications carrying capacity.[^65] On the wireless side,
    implementation of the Band Manager approach to licensing is
    potentially an important step in the direction of providing spectrum
    users with more flexibility to obtain access to the amount of
    spectrum, in terms of quantity, length of time, and geographic area,
    that best suits their needs.[^66] We believe that, consistent with
    our spectrum management obligations, enabling a "free market" in
    spectrum to develop could have significant public interest benefits
    in ensuring the limited spectrum resource is used efficiently, and
    the Guard Band Manager approach should help us advance that goal.
    The Commission\'s current policy of auctioning expansive blocks of
    spectrum in flexible allocations generally well serves the public by
    permitting a robust marketplace to determine which services will be
    provided to the public. Many service providers have argued, however,
    that the process of auctioning spectrum in large regional blocks
    does not permit the marketplace to realize the efficiencies inherent
    in site-by-site licensing, and otherwise prevents smaller, more
    regional service providers and other users of spectrum from
    competing in the marketplace. Auctioning spectrum to guard band
    managers should enable parties to take advantage of the efficiencies
    of site-by-site licensing, more readily acquire spectrum for varied
    uses, and streamline the Commission\'s spectrum management
    responsibilities.

32. Because a Guard Band Manager will purchase its license and derive
    revenues from leasing its spectrum to customers, market forces will
    provide incentives for efficient spectrum use that are not present
    in non-market-based approaches to licensing.[^67] The use of Guard
    Band Managers will also enable end users to acquire spectrum that
    can meet unique geographic requirements. For example, end users such
    as railroads or pipelines will be able to contract with a Guard Band
    Manager to access the same frequency across a long, but narrow
    service area and contract with multiple Guard Band Managers to
    achieve the same result across several geographic areas. The Guard
    Band Manager license will also enable small businesses to acquire
    spectrum in amounts, and for periods of time, that better suit their
    unique characteristics and specialized communications needs.[^68]
    Finally, licensing of Guard Band Managers will streamline the
    day-to-day management of these bands. Many spectrum-related
    functions now carried out by the Commission in other bands will be
    left to the Guard Band Manager in this band: subdivision of spectrum
    blocks and geographic areas; coordination of frequencies among
    users; selection of channels; resolving interference conflicts;
    ensuring compliance with Commission rules.

33. *Guard Band Manager Licensee Coordination Requirements*. Each Guard
    Band Manager will be granted a license under which it will allow
    others to construct and operate stations at any available site
    within the licensed area and on any channel for which the Guard Band
    Manager is licensed. The only exception to this blanket license
    approach is for stations that require individual Commission
    review.[^69] In cases where individual Commission review is
    required, the Guard Band Manager must file a separate application
    and obtain appropriate approvals or authorizations.[^70] Guard Band
    Managers may allow third-party system operators or end users to
    modify stations (i.e., delete, move, change operating parameters)
    that are covered under a Guard Band Manager's blanket license
    without prior Commission approval. This blanket licensing approach
    increases flexibility, reduces administrative burdens, and is
    consistent with how we license systems in other services where
    geographic area licensing is employed.[^71] In all instances,
    however, a primary responsibility of the Guard Band Manager will be
    to coordinate carefully operations and modifications of systems in
    the Guard Bands to ensure non-interference with public safety.

34. Specifically, to minimize the potential for interference to public
    safety operations in the adjacent 700 MHz bands, as well as adjacent
    channel and co-channel operations in adjacent geographic areas, we
    adopt coordination requirements. We believe coordination
    requirements also will encourage and facilitate the cooperation
    between Guard Band Managers and the public safety community that is
    so important to the overall band plan adopted.[^72] Under our
    coordination approach, Guard Band Managers must notify
    Commission-recognized public safety frequency coordinators in the
    700 MHz public safety band[^73] and adjacent-area Guard Band
    Managers[^74] of the technical parameters of any site constructed in
    the Guard Band Manager's license area. This notification requirement
    applies to the coordination of both new stations and station
    modifications. At a minimum, each notification must include
    frequency or frequencies coordinated, antenna height, antenna
    location, type of emission, effective radiated power, a description
    of the service area, date of coordination and user name or, in the
    alternative, a description of the type of operation.

35. Such notifications must be made within one business day after a
    Guard Band Manager has coordinated the station. To allow the public
    safety community and other Guard Band Managers time to evaluate the
    coordinations, entities coordinated by a Guard Band Manager must
    wait at least ten business days after notification until they can
    begin operating under the Guard Band Manager's license. We believe
    this is a fair compromise between minimizing interference and
    allowing entities to operate as soon as possible. Further, this
    approach is consistent with the coordination approach used in other
    contexts, such as when the Commission consolidated private land
    mobile radio services in the *Refarming Proceeding*.[^75] Guard Band
    Managers must also notify the same entities when an application for
    an individual station license is filed with the Commission and users
    must wait the same 10-day period. We expect Guard Band Managers to
    cooperate with one another and the public safety community in the
    selection of frequencies. In the event of harmful interference,
    Guard Band Managers are expected to cooperate to resolve the problem
    by mutually satisfactory arrangements. If the parties involved are
    unable to reach a mutually satisfactory solution, the Commission may
    impose restrictions on the operation(s) of any of the parties
    involved, consistent with its enforcement powers under the
    Communications Act.

36. *Statutory Considerations*. We find that the licensing of spectrum
    in this band to Guard Band Managers is consistent with Section 337
    of the Communications Act. Congress instructed the Commission to
    reallocate 24 MHz of the spectrum between 746 and 806 MHz for public
    safety services and 36 MHz of that spectrum for commercial use.[^76]
    Although Section 337 provides a specific definition of \"public
    safety services,\"[^77] Section 337 does not provide a definition of
    \"commercial use.\"[^78] We believe it is a reasonable
    interpretation of the "commercial use" requirement in Section
    337(a)(2) to permit non-public safety, commercial entities to lease
    spectrum within the 36 megahertz to third-party users (commercial or
    individual) upon which no end-use restrictions, except for the
    technical restrictions set forth above to protect public safety,
    will be imposed. Such an approach, in our view, is fully consistent
    with our spectrum management obligations and the public interest.

37. Section 337(a)(2) directs the Commission to allocate 36 MHz of
    spectrum for "commercial use." The legislation did not specify the
    particular radio service(s) for which the spectrum should be
    allocated. Instead, Section 337(a) describes only the nature of the
    activity for which the spectrum is to be used. Section 337(a)(1)
    requires the allocation of 24 MHz of spectrum for public safety
    services. In contrast, Section 337(a)(2) requires the allocation of
    36 MHz of spectrum for "commercial use." Because Section 337(a)(2)
    does not specify commercial mobile radio services, common carrier
    services, or any other individual radio service or category of radio
    services, we find that the most plausible reading of that section is
    that it was intended to characterize the nature of the spectrum use
    as a means of distinguishing it from the public safety use of the
    companion 24 MHz of nonauctionable spectrum allocated in the same
    section of the statute.[^79]

38. In our *Reallocation Report and Order*, we adopted a spectrum
    allocation for the 746-764 MHz and 776-794 MHz bands that enabled
    the provision of both fixed and mobile services. [^80] Accordingly,
    if Section 337(a) does not restrict these bands to mobile services,
    then it should not be interpreted to limit use of the bands to
    CMRS.[^81] Had Congress specifically designated 36 MHz of spectrum
    for CMRS, we might conclude that Congress used that regulatory
    classification to distinguish the radio services from services other
    than CMRS that clearly fall outside the definition of CMRS.[^82]
    However, because Section 337(a)(2) refers to \"commercial use\" and
    not to \"CMRS,\" we do not interpret that reference to preclude the
    Band Manager from leasing for profit the spectrum to entities that
    will provide PMRS or other private services that are used in
    commercial settings. We note further that Section 337(a) does not
    designate these bands for radio services that are "made commercially
    available to the public," a term Congress used in Section
    309(j)(2)(A) to exclude common carrier services from the definition
    of public safety radio services that are exempt from auction.[^83]
    We therefore conclude that in designating the 746-764 and 776-794
    MHz bands for "commercial use," Congress did not limit use of the
    bands to common carriers.[^84]

39. Our decision to reserve this spectrum for Guard Band Managers is
    consistent with Congress's direction that users of the public safety
    spectrum be protected from interference. Section 337(d)(4) states
    that the Commission "shall establish rules insuring that public
    safety services licensees using spectrum reallocated pursuant to
    subsection (a)(1) shall not be subject to harmful interference from
    television broadcast licensees."[^85] The Conference Report
    pertaining to that section states that the Commission should ensure
    that public safety service licensees in the 746-806 MHz band
    "continue to operate free of interference from any new commercial
    licensees."[^86] A number of parties in this proceeding have
    emphasized the need to create Guard Bands to accomplish this
    legislative directive.[^87] As discussed above in paragraphs 30-32,
    we agree with those commenters and believe that the most effective
    and efficient way to manage the Guard Bands is to license them to
    Guard Band Managers.

40. Moreover, Section 337 supports our licensing of spectrum in the
    746-764 MHz and 776-794 MHz bands to Guard Band Managers because
    this licensee is a commercial entity that will be engaged in a
    for-profit use of the spectrum.[^88] The term "commercial" generally
    is understood to cover activities that are engaged in for the
    purpose of earning income.[^89] The spectrum leasing activities
    performed by a Guard Band Manager constitute a commercial use
    because such services are provided for value, on a for-profit
    basis.[^90] Among the specific functions the Guard Band Manager will
    perform are: coordinating access to the spectrum, performing
    engineering and data base management, resolution of interference
    conflicts, and collecting payment from its customers for providing
    them with access to spectrum that they then can use as part of their
    own wireless operations. Thus, we conclude that the Guard Band
    Manager's generation of revenues from its use of the licensed
    spectrum meets the Section 337(a)(2) requirement that the spectrum
    be for commercial use.[^91]

41. Finally, many of the arguments of the opponents of Guard Band
    Manager licensing are based on the assumption that the Guard Band
    Manager's customers will be restricted to entities eligible for
    private wireless licenses,[^92] which is the approach proposed by
    numerous commenters that support the licensing of Guard Band
    Managers.[^93] We do not restrict, however, Guard Band Managers to
    serving private wireless users. Instead, we permit them to lease
    spectrum to a wide range of customers, including network operators
    that provide fixed or mobile internal communications services or
    commercial radio services to end users. The only proviso on
    eligibility to lease spectrum from a Guard Band Manager is that all
    of a Guard Band Manager's customers must adhere to the technical
    limitations on operations discussed above.[^94] The conclusion that
    the business of leasing spectrum as a Guard Band Manager constitutes
    a commercial use is not changed by the fact that private users are
    permitted to lease spectrum from Guard Band Managers. No commenter
    has suggested that a commercial user of the spectrum loses that
    status because private users are among its customers.

42. *Spectrum Management Authority*. We also conclude that the creation
    of the Guard Band Manager as a new class of licensee is consistent
    with our broad licensing and spectrum management authority under
    Sections 301, 303(b), and 309(j) of the Communications Act[^95] and
    our broad authority to adopt reasonable rules in the public interest
    establishing licensing eligibility criteria.[^96] In the licensing
    of the mobile satellite service, the Commission concluded that it
    had authority to adopt a licensing rule which required that service
    be provided by a consortium of applicants.[^97] The Commission found
    that it was not prohibited from adopting a consortium licensing
    approach that it found to be in the public interest, merely because
    the Communications Act does not expressly provide for the use of
    consortia in licensing proceedings.[^98] The same logic applies
    here, where the statute directing the Commission to license these
    bands for "commercial use" by competitive bidding did not
    specifically limit eligible uses to one type of "commercial"
    activity.

43. The Guard Band Manager concept also is analogous to other
    Commission-sanctioned commercial applications in which free market
    management of the spectrum is permitted. For example, licensing of
    Guard Band Managers to lease spectrum is consistent with the
    Commission\'s rules allowing ITFS licensees to lease their excess
    channel capacity to MDS licensees and other entities on a for-profit
    basis.[^99] Guard Band Manager licensing is also consistent with the
    Commission\'s rules permitting broadcasters to lease excess capacity
    on their systems by sharing the use of broadcast auxiliary
    facilities with other broadcast licensees and non-licensees on a
    for-profit basis.[^100] In neither of the cited instances did we
    find it inconsistent with our statutory licensing responsibilities
    to allow licensees to contract for the use of their licensed
    frequencies by non-licensees. In the case of broadcast auxiliary
    facilities, the Commission emphasized that it would hold the
    broadcast licensee responsible for any interference or misuse of the
    facilities that occurs during operation by the non-licensed
    user.[^101] We see no reason why it should make a difference to our
    analysis of our statutory authority that, in the case of the Guard
    Band Manager, the licensee acquires its license for the principal
    purpose of leasing its capacity to others, rather than as an
    incident to its own use of the licensed frequency.

44. Under the Commission\'s rules for private land mobile radio
    services, licensees may share the use of their facilities by
    permitting persons not licensed for the station to operate the
    station for their own purposes pursuant to the licensee\'s
    authorization. Shared use of the frequencies may be on a non-profit,
    cost-shared, or for-profit private carrier basis.[^102] The licensee
    is responsible for ensuring that the authorized facility is used for
    purposes consistent with the requirements of our rules.[^103] We see
    no reason to distinguish between our authority to allow the shared
    use of authorizations under Part 90 and our authority to allow Guard
    Band Managers to enter agreements for use of their authorizations by
    non-licensees.[^104]

45. Also, the use of Guard Band Managers to make frequencies available
    to third-party service providers or end users ("spectrum users")
    will be similar in certain respects to the frequency coordination
    process by which many private land mobile radio (PLMR) services
    frequencies are assigned to individual applicants. Although PLMR
    applicants have had the option to use a frequency coordinator to
    select their frequencies since 1958, the Commission, in 1986,
    required all PLMR licensees to coordinate their frequency selections
    with certified coordinators under Section 90.175 of the Commission's
    rules.[^105] The Commission concluded that the elevated role and
    responsibilities of frequency coordinators would improve the quality
    of frequency selections, expedite licensing, and improve spectrum
    efficiency.[^106] Thus, a PLMR applicant is now required to use a
    frequency coordinator to select a frequency that will most
    effectively meet the applicant's needs while minimizing interference
    to licensees already using a given frequency band. The Guard Band
    Manager is, in a sense, a "next generation" frequency coordinator,
    since it will engage in many activities similar to those of a
    traditional coordinator, but with greater rights and
    responsibilities to "manage" spectrum, consistent with technical
    limitations and other regulations we establish for Guard Band
    Managers in these bands, because it will be an actual Commission
    licensee.

46. Moreover, we believe that the Guard Band Manager concept is
    consistent with the requirement in Section 310(d) of the
    Communications Act that licensees retain ultimate *de facto* control
    of their licenses. As discussed in paragraphs 48-51, *infra*, Guard
    Band Managers will have full authority and the duty to take whatever
    actions are necessary to ensure third-party compliance with the Act
    and our rules. Moreover, Guard Band Managers will have a clear
    financial stake in the operation of their systems through their
    agreements with third parties.

47. In short, in establishing this new class of licensee, we do not
    exceed our statutory authority or relinquish our statutory
    responsibilities pertaining to the licensing of wireless services.
    The Commission will continue to fulfill its statutory obligation
    under Section 309(a) to determine whether the public interest,
    convenience, and necessity will be served by the granting of the
    Guard Band Manager\'s license application. As with any other
    licensee, the Commission will hold Guard Band Managers directly
    responsible for compliance with all obligations that the
    Communications Act imposes on licensees. The Commission will also
    hold Guard Band Managers directly responsible for any interference
    or misuse of the frequencies arising from their use by non-licensed
    entities.[^107] Further, the Commission intends to exercise its
    general enforcement powers under Section 303 of the Act by imposing
    appropriate sanctions against noncomplying Guard Band Managers, and
    where warranted, revoking licenses pursuant to Section 312 of the
    Act, for violations of the Act or Commission regulations committed
    by the Guard Band Manager or third-party users of its licensed
    spectrum. Finally, we emphasize that third-party spectrum users who
    violate our rules or other federal laws are subject to forfeitures
    under Section 503 of the Communications Act,[^108] other
    administrative sanctions, and criminal prosecution.[^109]

48. *Rules Governing Guard Band Manager Licenses*. Any concerns that
    might be raised about the Guard Band Manager\'s ability to manage
    the spectrum in the best interest of prospective eligible users can
    be addressed by Commission rules that will govern both the Guard
    Band Manager's operations and its contractual relationships with
    third-party users. ITA has suggested a number of terms and
    conditions that would be included in the Guard Band Manager's
    written agreement with its customers, and we agree with ITA that
    Guard Band Managers should be required to include at least some of
    these provisions in their contracts.[^110] With respect to many of
    the other contractual terms and conditions suggested by ITA, we do
    not incorporate them in our service rules, but rather will leave to
    the Guard Band Managers' discretion the decision whether such terms
    and conditions are necessary in the prudent structuring of the Guard
    Band Manager-customer relationship. Consistent with our decision to
    afford licensees in the 746-764 MHz and 776-794 MHz bands maximum
    practicable flexibility in use of this spectrum, we will not
    encumber Guard Band Managers with numerous regulations at this time.
    We will, however, closely monitor how Guard Band Managers carry out
    their spectrum management responsibilities and will impose more
    detailed rules of general applicability if we are presented with
    evidence of specific conduct that would warrant imposition of such
    rules.[^111]

49. The Guard Band Manager will contractually provide customers the
    right to use certain frequencies in its service area, as identified
    in the contract. The duration of spectrum user agreements may vary;
    however, no agreement may extend beyond the term of the Guard Band
    Manager's FCC authorization. The Guard Band Manager may enter into
    contingent agreements providing any spectrum user with an option or
    right to renew its agreement if the Guard Band Manager is able to
    renew its authorization on similar terms and conditions with the
    Commission. We will also require Guard Band Manager agreements to
    detail the operating parameters of the spectrum user's system,
    including power, maximum antenna heights, frequencies of operation,
    base station location(s), area(s) of operation, and other parameters
    as appropriate. Additionally, the spectrum user must agree to
    operate its system in compliance with all technical specifications
    for the system consistent with Commission policy, and must use
    FCC-approved equipment where appropriate. Guard Band Managers will
    also be required to include provisions in their agreements that the
    spectrum user complete post-construction proofs of system
    performance prior to system activation. This is to ensure, among
    other things, that public safety licensees on adjacent bands do not
    encounter interference.

50. Guard Band Manager contracts must include provisions that apply all
    existing licensee obligations to the spectrum user. For example, the
    spectrum user must agree to comply with all applicable Commission
    rules, and accept FCC oversight and enforcement consistent with the
    Guard Band Manager's license. We will also require Guard Band
    Managers to include provisions in their contracts obligating the
    spectrum user to cooperate fully with any investigation or inquiry
    conducted by either the Commission or the Guard Band Manager.[^112]
    In the event that the Guard Band Manager has knowledge or reason to
    believe that its customer has committed a violation of the
    Commission's rules, or that the customer's system is causing harmful
    interference with other systems, the Guard Band Manager will have
    the right to conduct onsite inspections of all transmission
    facilities. If the Guard Band Manager determines that there is an
    ongoing violation of the Commission's rules or that the customer's
    system is causing harmful interference, the Guard Band Manager shall
    have the right to suspend or terminate the operation of the system,
    or take other measures to resolve the interference until the
    situation can be remedied. Third-party spectrum user agreements must
    also stipulate that if the customer refuses to comply with a
    suspension or termination order, the Guard Band Manager will be free
    to use all legal means necessary to enforce the order. Finally, we
    will require Guard Band Managers to maintain their written
    agreements with spectrum users at their principal place of business,
    and to retain these records for at least two years after the date
    such agreements expire.[^113] We will require that these records be
    kept current and be made available upon request for inspection by
    the Commission or its representatives.

51. In the event that there is a dispute between a Guard Band Manager
    and one of its customers, or among multiple customers of the same
    Guard Band Manager, we expect such disputes to be resolved by the
    Guard Band Manager in the same manner that the parties would resolve
    other commercial disputes arising under the contract. We will,
    however, consider any complaints filed against a Guard Band Manager
    for violating the Act or the Commission's policies. We will resolve
    such complaints pursuant to our authority granted in Sections 308(b)
    and 309(d) of the Act. [^114] With respect to disputes between
    non-contracting parties and a Guard Band Manager or the Guard Band
    Manager's customers, when the Guard Band Manager is unable or
    unwilling to resolve such disputes in a timely fashion, we will
    permit the aggrieved party to file a complaint with the Commission,
    which we will consider to ensure the Guard Band Manager and its
    customers are complying with the requirements of the Act, our rules,
    and the terms of the Guard Band Manager license. We emphasize,
    however, that we expect Guard Band Managers to carefully coordinate
    use of their licensed frequencies to ensure that their customers do
    not interfere with public safety or other licensees on adjacent
    channels.

## Licensing Rules

52. In the *NPRM* we sought comment on licensing rules for a full range
    of possible licensees, consistent with our stated intention to
    permit as much flexibility in the use of this spectrum as is
    consistent with the requirements of Section 303(y) of the
    Communications Act.[^115] In the *700 MHz First Report and Order* we
    established licensing rules for the 746-764 MHz and 776-794 MHz
    bands. In the interests of flexibility and optimum spectrum use, we
    here enable Guard Band Managers to make their licensed spectrum
    available to customers for the customer's internal use or for the
    provision of any service, so long as the licensee and its customers
    comply with the technical rules governing Guard Band spectrum use.
    The following discussion addresses licensing rules for use of the
    Guard Bands.

### Regulatory Status

53. **[Background]{.underline}**. In the *NPRM*, we sought comment on
    whether to apply the existing licensing framework established in
    Part 27 for the Wireless Communications Service (WCS) to the 746-764
    MHz and 776-794 MHz bands.[^116] Part 27 accords licensees the
    flexibility to provide any fixed, mobile or radiolocation service
    contained in the non-government column of Table of Allocations in
    Part 2 of the Commission\'s Rules[^117] for this spectrum. We also
    sought comment in the *NPRM* on the need to modify Form 601 or any
    other appropriate forms to account for the uses permitted for these
    bands. In the *700 MHz First Report and Order*, we determined that
    we will require applicants to identify whether they seek to provide
    common carrier services or other services permitted under the final
    rules adopted therein.[^118] However, licensees in the 30 megahertz
    spectrum block will not be required to describe the specific
    services they seek to provide but only to designate the regulatory
    status of the services.[^119] We also concluded in the *700 MHz
    First Report and Order* that spectrum in the 30 megahertz block, if
    used to provide CMRS, will not be subject to the CMRS spectrum cap
    in Section 20.6 of the Commission's rules.[^120]

54. **[Discussion]{.underline}**. Because the Guard Band Manager
    licensee will act only as a spectrum broker and not as a wireless
    service provider, it will not be a carrier of any type. Accordingly,
    as licensed in the 6 megahertz block of the 700 MHz band, the Guard
    Band Manager will not be a common carrier as defined in Section 3 of
    the Communications Act.[^121] Consistent with our decision to amend
    Form 601 to allow licensees in the 30 megahertz block to accurately
    designate the regulatory status of the services they provide, we
    have further amended item 35 of the Form 601 to add the Band Manager
    classification.[^122]

55. With respect to the CMRS spectrum cap, although Guard Band Managers
    will not provide services regulated as CMRS, they may lease their
    spectrum to customers that will provide CMRS and which will be
    required to comply with Commission rules applicable to CMRS
    providers. For the reasons we articulated in the *700 MHz First
    Report and Order*, we also determine that if, consistent with our
    technical requirements, the Guard Bands are used to provide CMRS,
    they will not count against the 45/55 megahertz spectrum cap.[^123]

### Eligibility and Use Restrictions

56. **[Background]{.underline}**. The *NPRM* sought comment on a range
    of issues raised in the *Balanced Budget Act Notice* regarding Band
    Manager licensing, including eligibility and use restrictions for
    Band Manager licenses, whether to adopt measures that might promote
    competition among Band Managers, and whether to adopt rules to
    ensure fair and nondiscriminatory access by prospective users of
    Band Manager Spectrum.[^124] Sections 27.12 and 27.302 of the
    Commission\'s Rules[^125] impose no restrictions on eligibility,
    other than the foreign ownership restrictions set forth in Section
    310 of the Communications Act.[^126] In the *700 MHz First Report
    and Order*, we decided to impose no restrictions on eligibility for
    a license in the 747-762 MHz and 777-792 MHz bands.[^127]

57. **[Discussion]{.underline}**. As discussed in paragraphs 26 --51,
    *supra*, we will assign licenses in the Guard Bands exclusively to
    Guard Band Managers. We will not impose restrictions on the types of
    entities that may be licensed as Guard Band Managers. Instead we
    adopt certain basic requirements for Guard Band Managers that will
    further our objective of making the Guard Band Manager spectrum
    available to a wide range of users.

58. We decide that we should assign licenses in the 6 megahertz Guard
    Bands solely to Guard Band Managers because it will be the most
    efficient and effective way to manage spectrum that is subject to
    commercial uses for the protection of public safety licensees in the
    adjacent bands. Thus, the purpose of the Guard Band Manager will be
    to lease spectrum to third parties, and in doing so, to efficiently
    manage the spectrum in a manner that also protects adjacent public
    safety bands from interference.[^128] Guard Band Managers will have
    a financial incentive to coordinate use of their frequencies to
    ensure non-interference. Guard Band Managers may subdivide their
    spectrum and make it available to end users for private internal
    use, or to service providers that may provide common carrier or
    non-common carrier services to their customers. A Guard Band Manager
    may also aggregate the various demands for spectrum within its
    service area to meet the unique needs of that service area. As noted
    in our recent *Policy Statement* on spectrum management, the
    Commission is currently considering innovative assignment mechanisms
    that enable parties to more easily aggregate and disaggregate
    spectrum for alternative uses.[^129] We believe the Guard Band
    Manager approach we adopt in this Report and Order can potentially
    be an important step in that direction.

59. We nevertheless recognize that some entities that could function
    efficiently as a Guard Band Manager, and may be interested in
    bidding on the spectrum licenses in this band on that basis, may
    also be affiliated with organizations that operate wireless systems
    and have use for this spectrum in their systems. Thus, we will
    permit Guard Band Managers to lease some of their licensed spectrum
    to affiliated entities for the affiliates' own internal use or for
    their provision of commercial or private radio services.[^130]
    However, in order to ensure that we conduct a useful test of the
    Band Manager concept and obtain the full benefits of this new
    licensing approach, a core feature of which is leasing spectrum to
    third parties, we will require Guard Band Managers to lease the
    predominant amount of their spectrum to non-affiliates. We also
    provide Guard Band Managers with a "safe harbor" example of
    compliance with this requirement. To take advantage of this "safe
    harbor," a Guard Band Manager must lease no more than 49.9 percent
    of its licensed spectrum in a geographic service area to its
    affiliates. For the purpose of measuring the percent of spectrum
    leased under this rule, if a Guard Band Manager leases spectrum to
    an affiliate covering any portion of the defined geography of the
    service area, that spectrum will be considered to be leased to the
    affiliate.[^131]

60. We clarify that among those that may be licensed as Guard Band
    Managers in the Guard Bands are entities in the critical
    infrastructure industries, such as utilities, railroads, transit
    systems, pipelines, and similar entities that utilize private
    communications systems to support their commercial operations. The
    critical infrastructure industries are not eligible for licensing in
    the 24 megahertz of spectrum allocated for public safety service
    providers.[^132] We find nothing in the language of Section 337 or
    its legislative history that indicates Congress intended to treat
    the critical infrastructure industries differently from other
    commercial entities by excluding them from both the 24 megahertz of
    safety spectrum and the 36 megahertz of commercial spectrum.

61. *Competition Among Guard Band Managers*. In the *700 MHz First
    Report and Order*, we imposed no restriction on the amount of
    spectrum in the 30 megahertz block that one licensee may obtain. We
    consider here whether to limit the number of channel blocks in a
    geographic service area that may be licensed to a Guard Band
    Manager. We sought comment in the *NPRM* on whether we should grant
    more than one Band Manager license in a geographic area to allow for
    competition among Band Managers.[^133] In the *Balanced Budget Act
    Notice*, we expressed the tentative view that each geographic area
    should have several competing Band Managers so that market forces
    can substitute for regulation of rates and services.[^134]

62. We received little comment on whether we should license more than
    one Guard Band Manager in a geographic service area. Motorola
    proposed that we allow a bidder to acquire both Guard Band Manager
    licenses in a geographic area.[^135] PCIA suggests that the same
    entity should not initially be allowed to hold both licenses in a
    given market.[^136] We agree with PCIA and for the first auction of
    licenses in the 6 megahertz block,[^137] we will limit an entity and
    its affiliates[^138] to holding only one of the two Guard Band
    Manager licenses that will be available in a geographic service
    area. We believe that the existence of multiple Guard Band Managers
    in a service area will help to ensure a meaningful test of this new
    licensing approach. Limiting the number of Guard Band Manager
    licenses that one entity may hold will provide us with an ability to
    benchmark one Guard Band Manager against another serving the same
    geographic service area. Moreover, by licensing more than one Guard
    Band Manager we will limit the possibility that small business users
    will be unable to obtain access to this spectrum in service areas
    where a Guard Band Manager leases some of its spectrum to its
    affiliates.

63. *Allowable Restrictions on Spectrum Customers*. In the *NPRM*, we
    sought comment on how we can ensure fair and nondiscriminatory
    access by private radio users to spectrum licensed to a Band
    Manager.[^139] We anticipate that the competitive environment in
    which Guard Band Managers will operate \-- competition from each
    other, from other sources of spectrum supply, and from providers of
    communications services \-- will serve to constrain them from
    unreasonably restricting access to their spectrum. However, we
    believe that some general safeguards are appropriate for at least an
    initial period.

64. Our objective in establishing the Guard Band Manager license is to
    coordinate spectrum usage and to make spectrum available to a broad
    base of users, including businesses of all sizes, having needs that
    vary in terms of both the amount of spectrum and geographic
    coverage. We anticipate that some Guard Band Managers, like some
    frequency coordinators, may have direct affiliation with a class of
    users through trade associations and similar organizations. We are
    concerned that such relationships not affect the Guard Band
    Manager's decision on whether to make its spectrum available to a
    particular user. Consistent with the principles that the Commission
    has applied to frequency coordinators since 1958, we will expect
    Guard Band Managers not to engage in unjust or unreasonable
    discrimination among spectrum users and to honor all reasonable
    requests by potential users for access to the licensed
    spectrum.[^140] Nevertheless, we recognize that the number of users
    that can be granted exclusive use of a Guard Band Manager's channels
    will be limited. We recognize also that a Guard Band Manager may
    have valid business reasons for denying a potential user's request
    for spectrum. For example, it might be reasonable for a Guard Band
    Manager to deny a request for spectrum that, if granted, would
    preclude it from entering into an agreement with another user
    needing coverage of a wider geographic area for a longer period of
    time.

65. Moreover, the number of individual users requesting access to
    spectrum, and the amount of spectrum or geographic coverage needed
    by each of them, may vary widely among Guard Band Managers. Because
    the Guard Band Manager license is a new concept and we cannot
    predict the type or amount of demand that will exist for spectrum
    licensed in this manner, we think it is appropriate to provide Guard
    Band Managers with a considerable amount of latitude to develop
    methods and procedures for determining the most efficient way to
    apportion their spectrum among prospective users.[^141] We believe
    the Guard Band Manager should be free to enter into as many user
    agreements as it determines to be feasible given the capacity and
    other technical limits on use of its spectrum, market demand, and
    the varied needs of its users for different amount of spectrum for
    different periods of time. For this reason, we will not impose
    specific requirements on the number of users that must be provided
    access to their spectrum. As noted in paragraph 59, *supra*, we will
    require only that Guard Band Managers lease the predominant amount
    of their spectrum to non-affiliates.[^142] Furthermore, because we
    will license Guard Band Manager spectrum using Major Economic Areas
    (MEAs), which are comparatively large regional licensing
    areas,[^143] we believe that Guard Band Managers are unlikely to
    acquire this spectrum primarily for the internal use of affiliates.

66. We also recognize the potential for Guard Band Managers to impose
    unnecessary conditions or restrictions on their spectrum users,
    which may have anticompetitive impacts on those entities with whom
    the Guard Band Manager is in competition. Therefore, we will adopt a
    rule prohibiting Guard Band Managers from imposing unduly
    restrictive requirements on use of its licensed frequencies. By
    unduly restrictive, we mean any requirement that is not reasonably
    related to the efficient management of the spectrum licensed to the
    Guard Band Manager. Requirements that *are* reasonably related to
    the Guard Band Manager's spectrum management responsibilities are
    those that are necessary to ensure efficient spectrum use or ensure
    compliance with the Commission's rules, including those rules
    pertaining to field strength limits, power and antenna height
    limits, interference, emission limits, and radiofrequency (RF)
    safety requirements. We believe that such a rule will help forestall
    a Guard Band Manager from burdening a spectrum user with
    requirements that are designed solely or largely to harm a
    competitor of the Guard Band Manager or a competitor of the Guard
    Band Manager's affiliate. For example, we would consider it unduly
    restrictive for a Guard Band Manager to require a spectrum user to
    purchase telecommunications equipment only from one manufacturer or
    vendor, to require use of a particular technology, or to impose
    operating rules that would have the same practical effect. As noted
    above, we will consider any complaints filed against a Guard Band
    Manager for unreasonably denying access to its spectrum or imposing
    unreasonable terms and conditions on third-party service providers
    or end users, pursuant to our authority granted in Sections 308(b)
    and 309(d) of the Communications Act.[^144]

67. We conclude that the requirements outlined above will be adequate to
    accomplish our objective of making the Guard Band Manager spectrum
    available to a wide range of users. We are prepared, however, to
    reconsider our decision and impose additional constraints if we
    receive complaints indicating that Guard Band Managers are unfairly
    denying access to spectrum, or imposing unreasonable terms and
    conditions on its use, thereby undermining our objectives in
    licensing Guard Band Managers. Conversely, and we hope more likely,
    we are prepared to lift these requirements if experience with the
    Guard Band Manager licensing approach proves them unnecessary.

### Size of Service Areas for Geographic Area Licensing

68. **[Background]{.underline}**. In the *NPRM*, we requested comment on
    the type of service area or areas that should be used to license the
    746-764 MHz and 776-794 MHz bands.[^145] Part 27 spectrum previously
    has been licensed based on one of two kinds of service areas: twelve
    Regional Economic Area Groupings (REAGs) or 52 Major Economic Areas
    (MEAs). [^146] REAs[^147] and MEAs are based on the 172 Economic
    Areas (EAs) defined by the U.S. Department of Commerce, as modified
    by the Commission. Licensing Part 27 spectrum using REAs and MEAs
    allowed us to balance various specific competing needs.[^148] In the
    220 MHz auction, we auctioned spectrum in six Economic Area
    Groupings (EAGs) which were also based on EAs as defined by the
    Department of Commerce.[^149] In the *700 MHz First Report and
    Order*, we decided to license both the 20 megahertz and the 10
    megahertz licenses according to the six EAGs.[^150]

69. **[Discussion]{.underline}**. We will license both the 2 megahertz
    channel pair and the 1 megahertz channel pair using MEAs. Only a few
    parties commented on the appropriate size of service areas for Guard
    Band Manager licenses. Motorola has proposed that we authorize one
    channel pair for nationwide licensing and one channel pair for
    regional licensing, using MEAs.[^151] PCIA also proposes licensing
    one block of Guard Band Manager spectrum using MEAs, but proposes
    that we license the second spectrum block using EAs.[^152] AMTA
    states its preference for the use of EAs to license Guard Band
    Manager spectrum, but proposes in the alternative that we use MEAs
    rather than a larger regional licensing area.[^153] In adopting
    geographic area licensing for the Guard Band Manager spectrum, we
    agree with Motorola that there are certain advantages to large
    license areas. However, we are concerned about the number of
    entities, especially small or medium-sized businesses, that would be
    capable of bidding in the auction on a nationwide license.[^154] At
    the same time, we are concerned that if the spectrum is licensed
    based on only relatively small areas, there may be a significant
    number of licenses for which there will be little or no competition.
    Additionally, we must consider, as we did with respect to the 30
    megahertz spectrum block, our statutory obligation to conduct the
    auction for the 6 megahertz block to ensure that all proceeds are
    deposited by September 30, 2000, and our experience in previous
    auctions that simultaneous multiple-round auctions for a larger
    number of licenses are more complex and take longer to complete than
    similar auctions involving fewer licenses.

70. Balancing the various factors noted above, we conclude that the
    paired 2 megahertz channels and the paired 1 megahertz channels
    should be licensed using MEAs. MEAs will provide optimum opportunity
    for both aggregation and partitioning of geographic areas to suit a
    wide variety of possible business plans. MEAs will facilitate
    greater participation in the auction, allow a larger number and more
    diverse pool of Guard Band Managers than nationwide or larger
    regional licensing areas and result in increased competition, and
    result in broader flexibility in spectrum offerings by Guard Band
    Managers.[^155]

71. We will not use EAs to license Guard Band Managers because we
    recognize certain overall advantages to larger-sized areas for this
    spectrum block. Larger licensing areas will better enable Guard Band
    Managers to coordinate the use of their frequencies around incumbent
    TV stations in this band, which operate in fairly large areas
    protected from interference. We also believe that the use of
    licensing areas that are larger than EAs will facilitate aggregation
    of spectrum by bidders desiring a larger regional license or even a
    nationwide license. Moreover, even if there is no demand for a
    nationwide Guard Band Manager license, the use of larger MEAs will
    make it easier for end users that need less than 4 megahertz or 2
    megahertz of spectrum to obtain nationwide or wide-area coverage
    than if the spectrum were licensed in many smaller geographic areas.
    Alternatively, a bidder could aggregate several MEAs into a larger
    region while the winning bidders of the remaining licenses partition
    their MEAs into smaller geographic areas in response to the needs of
    smaller users.[^156] In sum, we believe that the use of MEAs will
    facilitate the participation of smaller entities, while
    simultaneously giving medium-sized and larger companies the
    flexibility to aggregate spectrum to put together regional and
    nationwide licenses tailored to their particular business needs.

### License Term; Renewal Expectancy

72. **[Background]{.underline}.** In the *NPRM* we proposed to adopt the
    license term and renewal provisions in Part 27 of the Commission\'s
    Rules, for other than new broadcast-type services. Section 27.13
    limits the license term to 10 years from the date of original
    issuance or renewal.[^157] Section 27.14(b) establishes a licensee's
    right to a renewal expectancy.[^158] In the *700 MHz First Report
    and Order*, we modified the license term as it relates to the
    747-762 MHz and 777-792 MHz bands, to accommodate licensees' need
    for additional time to develop and use this spectrum, in light of
    its continued use by broadcasters until 2006.[^159] We determined
    that a license issued to a winning bidder for this spectrum will
    extend eight years beyond the year 2006, the date as of which
    incumbent broadcasters are required to have relocated to other
    portions of the spectrum,[^160] that is, until January 1,
    2015,[^161] for a total of approximately 14 years. [^162] Because
    the Communications Act limits licenses for broadcast services to an
    eight-year term,[^163] a licensee that commences new broadcast-type
    operations on or before January 1, 2006, will be required to seek
    renewal of its license at the end of the eight-year term following
    commencement of such broadcast operations.

73. **[Discussion]{.underline}.** For the reasons stated in the *700 MHz
    First Report and Order*, we adopt the same license term for the
    Guard Bands that we adopted for the 747-762 MHz and 777-792 MHz
    bands. Licenses in the 746-747/ 776-777 MHz and 762-764/ 792-794 MHz
    bands will extend until January 1, 2015, which is eight years beyond
    the year 2006. We also adopt for Guard Band licenses the right to a
    renewal expectancy established in Section 27.14(b).[^164] In the
    event that a Guard Band license is partitioned or disaggregated, as
    discussed below, any partitionee or disaggregatee is authorized to
    hold its license for the remainder of the original licensee\'s term,
    and the partitionee or disaggregatee may obtain a renewal expectancy
    on the same basis as other licensees in the band.[^165] Guard Band
    licensees meeting the substantial service requirement discussed
    below will be deemed to have met this element of the renewal
    expectancy requirement.[^166]

### Performance Requirements

74. **[Background]{.underline}**. In the *NPRM*, we proposed to adopt
    the performance requirement in Section 27.14(a) of the Commission's
    rules for licensees in the 746-764 and 776-794 bands.[^167] Section
    27.14(a) requires licensees to provide "substantial service" to
    their service area within 10 years of being licensed.[^168] A
    failure to meet this requirement results in forfeiture of the
    license and in the licensee\'s ineligibility to regain the license.
    Although our proposal received general support, one commenter
    expressed concern that the continued existence of incumbent
    broadcasters may make it difficult for new licensees to comply with
    these performance requirements in some markets.[^169] In the *700
    MHz First Report and Order*, we amended the performance requirement
    in Section 27.14(a) as it relates to the 747-762 MHz and 777-792 MHz
    bands. We required licensees in the 30 megahertz spectrum block to
    provide substantial service to their service areas no later than
    January 1, 2015,[^170] *i.e.*, eight years after the date as of
    which incumbent broadcasters are required to have relocated to other
    portions of the spectrum.[^171]

75. **[Discussion]{.underline}.** In establishing the Guard Band Manager
    as a new class of licensee, we will require Guard Band Managers to
    provide "substantial service" to their service areas no later than
    January 1, 2015, *i.e.*, the date upon which incumbent broadcasters
    are required to have relocated to other portions of the spectrum. We
    will not impose other build-out requirements or channel usage
    requirements. In lieu of these more stringent requirements, we are
    imposing a reporting requirement.

76. We conclude with respect to the 6 megahertz of spectrum to be
    licensed to Guard Band Managers that a substantial service
    requirement will be sufficient to act as a deterrent against
    anticompetitive warehousing and other abusive practices and to
    ensure prompt delivery of services to rural areas. We believe use of
    the auction mechanism to assign spectrum licenses to Guard Band
    Managers, in combination with competitive pressure from the
    availability of other bands for commercial and private wireless
    services, will create an incentive for the Guard Band Manager to
    lease spectrum in a way that will ensure its efficient and intensive
    use. Because licenses will be assigned initially through competitive
    bidding, they will be assigned efficiently to firms that have shown
    by their willingness to pay market value their intention and their
    ability to put the licenses to their highest valued uses. Moreover,
    the competitive environment in which Guard Band Managers will
    operate will provide adequate incentive to constrain the price of
    capacity and to ensure that Guard Band Managers coordinate use of
    their licensed spectrum in a way that will avoid or at least
    minimize interference. Competitive pressure will come from
    alternative sources of wireless capacity and/or services, including
    the existing frequency coordination mechanism for assigning spectrum
    reserved for private wireless services, and dispatch and other
    communications services provided by commercial wireless
    operators.[^172]

77. We believe that strict performance requirements may undermine
    efficient use of the spectrum. Guard Band Managers will have
    multiple users with a variety of different, and in many cases
    unique, coverage and capacity requirements. The variety of wireless
    services, together with the complexity of these different services,
    make it difficult if not impossible to design performance
    requirements that are fully compatible with the needs of all
    potential users of this spectrum. To ensure efficient use of the
    spectrum, the Guard Band Manager must have the flexibility to
    respond to varied users' demand for spectrum capacity and to tailor
    spectrum to meet their specific service needs. Strict performance
    requirements would interfere with the Guard Band Manager's ability
    to respond to market demand as required. Additionally, a flexible
    requirement is appropriate for this band, because incumbent TV
    stations operating in fairly large areas protected from interference
    may remain on their frequencies until 2006.[^173]

78. Guard Band Managers may avail themselves of either of the following
    "safe harbors" for the Guard Bands. A Guard Band Manager can satisfy
    the substantial service requirement by leasing the predominant[^174]
    amount of its licensed spectrum in at least 50 percent of the
    geographic area covered by its license at the license-renewal mark.
    A Guard Band Manager can also satisfy the substantial service
    requirement by providing coverage to 50 percent of the population of
    the Guard Band Manager's service area at the license-renewal mark.
    These "safe harbor" examples are intended to provide Guard Band
    Managers a degree of certainty regarding how to comply with the
    substantial service requirement. The requirement can be met in other
    ways, which will vary depending on the market and type of spectrum
    users served, and we will review licensees' showings on a
    case-by-case basis.

79. We will, however, reserve the right to review our service rules and
    impose more stringent performance requirements on Guard Band
    Managers in the future if we receive complaints from prospective
    users or determine that reassessment is warranted because spectrum
    is being anticompetitively warehoused or is otherwise not being made
    available despite existing demand. To facilitate such review, we
    will adopt an annual reporting requirement that will obligate Guard
    Band Managers to provide the Commission with information about the
    manner in which their spectrum is being utilized. Guard Band
    Managers will be required to supply us with basic information about
    the total number of users and the number of those users that are
    affiliates of the Guard Band Manager; the amount of spectrum being
    used by the Guard Band Manager's affiliates in any part of the
    licensed service area and the amount of spectrum being used pursuant
    to agreements with unaffiliated third parties; the general nature of
    its customers' spectrum use; and the length of the term of each user
    agreement.[^175] We also reserve the authority to subject Guard Band
    Managers to audits using in-house and contract resources.[^176]

80. We will make this information available to the public in order to
    enhance prospective users' ability to determine the availability of
    frequencies in their service areas that will meet their needs.
    Making this information publicly available will promote efficient
    licensing of these channels, thereby resulting in more efficient use
    of the spectrum. For all the reasons noted above, we conclude that
    our imposition of a substantial service requirement and a reporting
    requirement for this spectrum, together with our overall competition
    and universal service policies, will constitute effective safeguards
    and performance requirements for Guard Band Manager licensing.

### Disaggregation and Partitioning of Licenses

81. **[Background]{.underline}**. In the *NPRM*, we proposed to permit
    licensees in the 746-764 MHz and 776-794 MHz bands to partition
    their service areas and to disaggregate their spectrum. With respect
    to the the 747-762 MHz and 777-792 MHz bands, in the *700 MHz First
    Report and Order* we decided to permit geographic partitioning of
    any service area defined by the partitioner and partitionee,
    spectrum disaggregation without restriction on the amount of
    spectrum to be disaggregated, and combined partitioning and
    disaggregation.[^177]

82. **[Discussion]{.underline}.** We will allow Guard Band Managers to
    partition their service areas and to disaggregate their spectrum to
    any entity that would otherwise be eligible to hold an authorization
    as a Guard Band Manager for this spectrum. As we concluded with
    respect to the 30 megahertz spectrum block, geographic partitioning
    and spectrum disaggregation can result in efficient spectrum use and
    improve smaller entities' ability to overcome entry barriers through
    the creation of smaller licenses that require less capital, and will
    thereby facilitate greater participation by rural telephone
    companies and other small entities, including those owned by
    minorities and women.[^178] Affording Guard Band Managers the same
    flexibility as other licensees in the wireless radio services will
    enable them to better respond to market demand, and more efficiently
    manage their spectrum, which, in turn, will result in more efficient
    use of the spectrum by end users.

83. Licensees seeking to partition and disaggregate are required to
    obtain Commission authorization for partial assignment of their
    license.[^179] In reviewing requests for approval of partitioning
    and disagregation, we will consider the impact that such
    partitioning or disaggregation would have on public safety
    operations in the adjacent 700 MHz bands. Additionally, pursuant to
    Section 27.15, the partitioning licensee must include with its
    request a description of the partitioned service area and
    calculations of the population of the partitioned service area and
    the licensed geographic service area,[^180] and will be subject to
    the provisions against unjust enrichment set forth in Section
    27.15(c).[^181]

84. As we provided for licensees in the 747-762 MHz and 777-792 MHz
    bands,[^182] we will allow partitioning Guard Band Managers to
    choose between two options for satisfying the performance
    requirement in Section 27.14 of our rules.[^183] Under the first
    option, the partitioner and partitionee would each certify that it
    will independently satisfy the substantial service requirement for
    its respective partitioned area. If a Guard Band Manager fails to
    meet its substantial service requirement during the relevant license
    term, the non-performing Guard Band Manager's authorization will be
    subject to cancellation at the end of the license term. Under the
    second option, the partitioner can certify that it has met or will
    meet the substantial service requirement for the entire market. If
    the partitioner fails to meet the substantial service standard
    during the relevant license term, only its license will be subject
    to cancellation at the end of the license term; the partitionee\'s
    license will not be affected by the failure. The public interest is
    advanced by permitting this flexibility, because it will increase
    the viability and value of the partitioned licenses, while
    preventing circumvention of our performance requirement.[^184]

85. In addition, we will allow parties to disaggregation agreements to
    choose between two options for satisfying the performance
    requirement.[^185] Under the first option, the disaggregator and
    disaggregatee would certify that they will share responsibility for
    meeting the performance requirement for the entire geographic
    service area. If the parties choose this option, both parties\'
    jointly will be required to meet the substantial service requirement
    at the end of the relevant license term, and both Guard Band Manager
    licenses will be subject to cancellation, if the requirement is not
    met. The second option allows the parties to agree that either the
    disaggregator or the disaggregatee will be responsible for meeting
    the substantial service requirement for the geographic service area.
    If the parties choose this option, and the Guard Band Manager
    responsible for meeting the performance requirement fails to do so,
    only the license of the non-performing Guard Band Manager will be
    subject to cancellation. As with partitioned licenses, providing
    these options preserves the public interest in developing the
    spectrum to the same degree as that required had the disaggregation
    (or partitioning) not occurred.[^186]

### Public Notice of Initial Applications; Petitions to Deny

86. **[Background]{.underline}.** Section 309(b) and Section 309(c) of
    the Communications Act require public notice for initial
    applications for authorizations in, *inter alia*, the broadcasting
    or common carrier services, and substantial amendments
    thereof.[^187] These requirements provide that no such application
    shall be granted earlier than 30 days following the issuance of
    public notice by the Commission, and that the Commission may not
    require petitions to deny such applications to be filed earlier than
    30 days following the public notice. Section 309(b)(2)(F) also
    grants the Commission authority to establish a public notice
    requirement and a period for petitions to deny for other
    authorizations not in the broadcasting or common carrier
    services.[^188] However, the administrative procedures for spectrum
    auctions adopted in Section 3008 of the Balanced Budget Act of
    1997[^189] and Consolidated Appropriations Act[^190] permit the
    Commission to shorten notice periods in the auction context to five
    days for petitions to deny and seven days for public notice,
    notwithstanding the provisions of Section 309(b) of the
    Communications Act. In the *Part 1 Third Report and Order,*[^191]
    the Commission exercised this statutory authority by amending
    Section 1.2108(b) and Section 1.2108(c) of the Commission\'s
    Rules[^192] to provide for a five-day period for filing petitions to
    deny and a seven-day public notice period for all auctionable
    services.

87. We received no comments on our proposal to adopt these deadlines for
    services in the 746-764 MHz and 776-794 MHz spectrum bands. In the
    *700 MHz First Report and Order*, we adopted for this spectrum the
    seven-day notice requirement for initial applications and the
    five-day deadline for petitions to deny.[^193]

88. **[Discussion]{.underline}.** Although Guard Band Managers will not
    be broadcast or common carrier licensees, we will exercise the
    authority granted us in Section 309(b)(2)(F) and adopt a seven-day
    notice requirement for initial applications for Guard Band Manager
    licenses and a five-day period for petitions to deny such
    applications.[^194]

### Foreign Ownership Restrictions

89. **[Background]{.underline}.** In the *NPRM*, we proposed means for
    implementing the foreign ownership provisions set forth in Sections
    310(a) and 310(b) of the Communications Act.[^195] Section 310(a)
    prohibits any foreign government or representative from holding a
    station license. Section 310(b) prohibits certain defined foreign
    ownership interests in broadcast, common carrier, aeronautical en
    route or aeronautical fixed radio station licenses. One comment,
    supporting our proposal, was received on this portion of the
    *NPRM*.[^196] In the *700 MHz First Report and Order* we concluded
    that Section 27.12 of the Commission\'s Rules, which implements
    Section 310 of the Act,[^197] should apply to applicants for
    licenses in the 747-762 MHz and 777-792 MHz bands.[^198] We
    determined that applicants requesting authorization for common
    carrier services will be subject to both Section 310(a) and Section
    310(b). Nonbroadcast applicants requesting authorization only for
    non-common carrier services will be subject to Section 310(a) but
    not to the additional prohibitions of Section 310(b).[^199] To
    enable the Commission to monitor effectively compliance with the
    alien ownership restrictions, we further determined that both common
    carriers and non-common carriers authorized in the 747-762 MHz and
    777-792 MHz bands will be required to file changes in foreign
    ownership information to the extent required by Part 27 of our
    Rules.[^200]

90. **[Discussion]{.underline}.** We have determined that Section 27.12
    of the Commission\'s Rules, should apply to applicants for Guard
    Band licenses. Because the Guard Band Manager is a non-common
    carrier, an applicant requesting authorization for a Guard Band
    Manager license will be subject to Section 310(a) but not to the
    additional prohibitions of Section 310(b). With respect to our alien
    ownership reporting requirements, we will require applicants for the
    Guard Band spectrum to file changes in foreign ownership information
    to the extent required by Part 27 of our Rules.

## Operating Rules

91. In the *700 MHz First Report and Order*, we determined to subject
    licensees in the 747-762 MHz and 777-792 MHz bands to the Part 27
    rules that govern operations, modified to accommodate the particular
    circumstances of the 700 MHz proceeding. We did not solicit comment
    on these operating rules in the *Public Notice* issued on January 7,
    2000, seeking additional comments with respect to the Guard Bands.
    The following discussion focuses on operating rules for the 746-747
    and 776-777 MHz and the 762-764 and 792-794 MHz Guard Bands.[^201]
    Based on the comments we received in response to the *NPRM* and the
    analysis set forth in the *700 MHz First Report and Order* and
    summarized below, we believe that these rules are also appropriate
    for the Guard Bands.

### Applicability of General Common Carrier Obligations; Forbearance

92. **[Background]{.underline}.** In the *700 MHz First Report and
    Order*, we reviewed our prior decisions respecting forbearance from
    the requirements of the Communications Act and interpreted the
    potential effect of these decisions on fixed common carrier services
    provided on the 747-762 MHz and 777-792 MHz bands.[^202] Pursuant to
    our prior exercise of authority under Section 332(c)(1)(A) to
    forbear for CMRS from certain of the obligations imposed on common
    carriers by Title II of the Communications Act, we determined that
    common carriers classified as CMRS, including those providing mobile
    services in the 747-762 MHz and 777-792 MHz bands, will not be
    required to file contracts of service, seek authority for
    interlocking directors,[^203] or submit applications for new
    facilities or discontinuance of existing facilities, and are
    prohibited from filing tariffs for interstate service to their
    customers or for interstate access service. We also determined that
    CMRS providers on this spectrum will be required to support service
    provider LNP by November 24, 2002, but will not be required to file
    tariffs for most international services or be subject to most of
    Section 226 of the Act, relating to telephone operator services. In
    addition, we determined that CMRS providers in the 747-762 and
    777-792 bands will be subject to the Commission's complete
    detariffing of interstate, interexchange services offered by
    non-dominant interexchange carriers, to our elimination of Part 41
    requirements applicable to franks, and to our elimination of the
    prior approval requirements for most *pro forma* transfer
    applications involving telecommunications carriers. We also
    addressed the requirements of Section 214(a) as they apply to
    licensees in the 747-762 MHz and 777-792 MHz bands that voluntarily
    discontinue, reduce, or impair service to a community or part of a
    community and adopted, in Section 27.66, the automatic grant
    provisions in amended Section 63.71 of the Commission\'s
    Rules,[^204] so as to ensure comparable regulatory treatment between
    wireline providers and fixed wireless providers operating in the 30
    megahertz band.[^205]

93. **[Discussion]{.underline}.** We did not solicit comment on the
    forbearance issue in the *Public Notice* issued on January 7, 2000.
    Although we did solicit comments on forbearance in the *NPRM,* we
    received none. Based on our conclusions set forth in the *700 MHz
    First Report and Order*, and on our assessment that the decisions
    adopted there are appropriate for application to operations in the
    Guard Bands, we are adopting the forbearance measures discussed in
    the *700 MHz First Report and Order* with respect to tariff and
    contract filings, interlocking directors, new and discontinued
    facilities, service provider LNP, Section 226, franks, and *pro
    forma* transfer applications.

94. We also adopt the provisions of Section 27.66 for operations on the
    Guard Bands. Section 27.66 tracks the provisions of Section 63.71,
    requiring a common carrier voluntarily discontinuing, reducing or
    impairing service to provide notice to affected customers and the
    Commission and providing for the automatic grant of a fixed service
    common carrier's application for discontinuance after 31 days.[^206]
    In the case of Guard Band operations, this notice to the Commission
    must be provided by the Guard Band Manager. If a non-common carrier
    voluntarily discontinues, reduces, or impairs service, Section 27.66
    requires the carrier to give written notice to the Commission within
    seven days. In the case of Guard Band operations, this notice to the
    Commission, as well, must be provided by the Guard Band Manager. A
    mere change in common carrier or non-common carrier status does not
    constitute a "discontinuance." If fixed service common carrier
    operations are involuntarily discontinued, reduced, or impaired for
    a period exceeding 48 hours, the Guard Band Manager must promptly
    notify the Commission, in writing, of the reasons for the
    discontinuance, reduction, or impairment of service, including a
    statement indicating when normal service is to be resumed. When
    normal service is resumed, the Guard Band Manager must promptly
    notify the Commission. As we indicated in the *700 MHz First Report
    and Order*, we continue to invite suggestions on ways in which we
    can alleviate or streamline regulations that would otherwise be
    applicable to fixed services provided on this spectrum.

### Equal Employment Opportunity

95. **[Background]{.underline}.** In the *700 MHz First Report and
    Order*, we noted that neither Part 27 nor Parts 24 (PCS) and Part 26
    (General Wireless Communications Service) include an explicit Equal
    Employment Opportunity (EEO) provision, but that specific EEO
    provisions exist in other parts of our Rules. We concluded, however,
    that all commercial mobile radio service (CMRS) providers are
    subject to the Commission's EEO requirements,[^207] citing, in
    support, Parts 22 and 90 of our Rules,[^208] and that commercial
    mobile service providers are generally subject to the Commission's
    common carrier EEO obligations.[^209] We declined to include
    specific EEO provisions in Part 27 for application to the 30
    megahertz block.

96. **[Discussion]{.underline}.** Because the Commission's EEO Rules are
    service-specific, a Guard Band user's EEO requirements will depend
    on the type of service it chooses to provide. In adopting rules for
    the 30 megahertz block, we allowed a licensee to self-characterize
    its regulatory status in its Form 601, consistent with the flexible
    approach that the Commission took in the *DBS NPRM.*[^210] FCC Form
    601, as amended, identifies five regulatory statuses: (a) common
    carrier, (b) non-common carrier, (c) private, internal
    communications, (d) broadcast, and (e) Band Manager. However, Guard
    Band Manager users do not file FCC Form 601, because they are not
    licensees. Nevertheless, these operators will be subject to such EEO
    requirements as the nature of the services they provide dictates.

## Other Technical Rules

97. **[Background]{.underline}.** We have previously discussed the band
    plan and our technical and operational rules for the Guard
    Bands.[^211] We now address other technical rules applicable to the
    Guard Bands. As we concluded in the *700 MHz First Report and Order*
    for the 747-762 MHz and 777-792 MHz bands, all users of the Guard
    Bands, including entities who acquire their licenses through
    partitioning or disaggregation, will be subject to the general
    provisions of Part 27 relating to equipment authorization, frequency
    stability, antenna structures and air navigation, international
    coordination, environmental requirements, quiet zones, and
    disturbance of AM broadcast antenna patterns.[^212] In addition, we
    intend to apply to the Guard Bands the same technical rules for
    in-band interference control, RF safety and power limits, and
    television channels 65 and 67 that we applied to the 30 megahertz
    spectrum in the *700 MHz First Report and Order*. We did not solicit
    comment on these technical standards in the *Public Notice* issued
    on January 7, 2000, seeking additional comments with respect to the
    Guard Bands. Based on the comments we received in response to the
    *NPRM* and the analysis set forth in the *700 MHz First Report and
    Order* and summarized below, we believe that these standards are
    also appropriate for the Guard Bands.

98. **[Discussion]{.underline}.** *In-Band Interference Control*. In the
    *700 MHz First Report and Order* we agreed with commenters that the
    field strength limit approach should be used to control co-channel
    interference.[^213] We concluded that such an approach provides
    established, objective criteria for controlling in-band
    interference, and gives users the ability to construct and operate
    facilities in boundary areas so long as the limit is met, whereas a
    coordination approach could impose unnecessary coordination costs
    for facilities that are not likely to cause interference and could
    lead to possible anti-competitive activities. Because the types of
    services that will be provided in the 700 MHz band are likely to be
    similar to the types of services permitted in the 800 MHz EA-based
    and 900 MHz MTA-based bands,[^214] in which we employ a 40 dBu/m
    field strength at the geographic border, and because of its
    proximity to these bands, we concluded in the *700 MHz First Report
    and Order* that the appropriate field strength for the control of
    in-band interference in the 30 megahertz spectrum is 40 dBu/m.[^215]
    We adopt that standard here for the Guard Bands, as well. We believe
    that use of the field strength procedure and this criterion for the
    Guard Bands will satisfy the requirement in Section 337(d)(1) that
    the Commission establish "interference limits at the boundaries of
    the spectrum block and service area."[^216] However, as with the 30
    megahertz spectrum, we will permit users in adjoining areas to agree
    to alternate field strengths at their common border to provide users
    increased flexibility in implementing their systems without
    increasing the risk of harmful interference.

99. *RF Safety/Power Limits*. Section 27.52 of the Commission\'s
    Rules[^217] subjects licensees and manufacturers to the RF radiation
    exposure requirements specified in Sections 1.1307(b), 2.1091, and
    2.1093 of the Commission\'s Rules.[^218] In the 700 MHz First Report
    and Order, we adopted a threshold of 1000 w ERP for categorical
    exclusion from routine evaluation for RF exposure for base and fixed
    stations.[^219] We adopt this threshold for base and fixed stations
    in the Guard Bands, as well. As with the 30 megahertz block, the
    threshold for routine evaluation of mobile devices (as defined in
    Section 2.1091 of our Rules) for RF safety purposes will be 1.5 w or
    greater, in conformance with Section 2.1091. For portable devices in
    the Guard Bands (as defined in Section 2.1093 of our Rules), we
    adopt a maximum power limit of 3 w ERP with the provision that these
    devices be evaluated for RF exposure in compliance with Section
    2.1093. As we have previously stated, we are providing guidance on
    acceptable methods of evaluating compliance with the Commission\'s
    RF exposure limits in OET Bulletin No. 65, which has replaced OST
    Bulletin No. 65.[^220]

100. As we did for the 30 megahertz spectrum, we are adopting the
     following power limits for the Guard Bands: (1) for base stations
     and fixed stations operating in the 746-747 MHz and 762-764 MHz
     bands, an ERP no greater than 1,000 watts and an antenna height
     above average terrain (HAAT) no greater than 305 m;[^221] (2) for
     mobile, fixed, and control stations operating in the 776-777 MHz
     and 792-794 MHz bands, an ERP no greater than 30 watts; and (3) for
     portable stations operating in the 776-777 MHz and 792-794 MHz
     bands, an ERP no greater than 3 watts. The 1000 w ERP power limit
     for base and fixed stations should enable satisfactory coverage for
     commercial systems operating in this band. The 30 w ERP power limit
     for mobile, fixed, and control stations is the power limit adopted
     for mobile and control station operations in the 700 MHz public
     safety band. The 3 w ERP power limit for portable stations is
     consistent with the power limit adopted for portables in the 700
     MHz public safety band.

101. *Special Considerations for Use of Channels 65 and 67.* The second
     harmonic transmissions[^222] of Guard Band services that will be
     operating on TV channels 65 and 67 fall within a band used for
     radionavigation in the Global Navigation Satellite System (GNSS),
     which includes the Global Positioning System (GPS) at
     1563.42-1587.42 MHz.[^223] In the *700 MHz First Report and Order*
     we committed to protecting this system and to ensuring that
     equipment operating in the 700 MHz band does not cause radio
     interference to the GNSS. Although NTIA supported the standard we
     proposed in the *NPRM*, other commenters argued that our proposed
     standards were either too restrictive to accommodate commercial
     development of the band or too lenient to protect GNSS.[^224] For
     the same reasons articulated in the *700 MHz First Report and
     Order* with respect to the 30 megahertz spectrum,[^225] we believe
     that the following OOBE limits provide the appropriate balance
     between these two, opposing positions and adopt them here for all
     spurious emissions, including harmonics, that fall within the
     1559-1610 frequency range, from equipment operating in the 746-747
     MHz, 762-764 MHz, 776-777 MHz and 792-794 MHz Guard Bands: (1) for
     wideband emissions, -70 dBW/MHz equivalent isotropically radiated
     power (EIRP); and (2) for discrete emissions of less than 700 Hz
     bandwidth, an absolute EIRP limit of --80 dBW. Outside of emissions
     into the 1559-1610 MHz RNSS band, the OOBE standards adopted in
     Section III.A.1 will apply.

## Competitive Bidding

### Statutory Requirements

102. **[Background]{.underline}.** In the *NPRM*, we sought comment on
     whether the auction of the 746-764 MHz and 776-794 MHz bands may
     present a suitable context for combinatorial bidding.[^226] Section
     3002 of the Balanced Budget Act directed the Commission to "provide
     for the design and conduct (for purposes of testing) of competitive
     bidding using a contingent combinatorial bidding system that
     permits prospective bidders to bid on combinations or groups of
     licenses in a single bid and to enter multiple alternative bids
     within a single bidding round."[^227] In addition, we sought
     comment on whether our statutory obligations prohibited public
     safety entities from participating in the auction of licenses for
     this spectrum. [^228] In the *700 MHz First Report and Order*, we
     concluded with respect to the 747-762 MHz and 777-792 MHz bands
     that we will not use combinatorial bidding procedures in light of
     the fact that this complex and untested auction design is still in
     development.[^229] We also decided that no entities would be barred
     from participating in the auction of licenses in the 747-762 MHz
     and 777-792 MHz bands.[^230]

103. **[Discussion]{.underline}.** In light of the accelerated schedule
     for auction of this spectrum,[^231] we continue to believe that we
     should not use combinatorial bidding for the auction of licenses in
     the 700 MHz bands. Thus, for the reasons we stated with respect to
     the 747-762 MHz and 777-792 MHz bands, we will not use
     combinatorial bidding procedures for the 762-764 MHz/ 792-794 MHz
     band and the 746-747 MHz/ 776-777 MHz band. Consistent with our
     decision regarding the 747-762 MHz and 777-792 MHz bands, we will
     not prohibit any entities from participating in the auction of
     licenses for the Guard Bands.

### Incorporation by Reference of Part 1 Standardized Auction Rules

104. **[Background]{.underline}.** In the *NPRM*, we proposed to conduct
     the auction for initial licenses in the 746-764 MHz and 776-794 MHz
     bands in conformity with the general competitive bidding rules set
     forth in Part 1, Subpart Q, of the Commission\'s Rules, and
     substantially consistent with the bidding procedures that have been
     employed in previous auctions.[^232] Specifically, we proposed to
     employ the Part 1 rules governing designated entities, application
     issues, payment issues, competitive bidding design, procedure and
     timing issues, and collusion issues.[^233] We further stated that
     these rules would be subject to any modifications that the
     Commission may adopt in the Part 1 proceeding. We sought comment on
     whether any of our Part 1 rules would be inappropriate in an
     auction of licenses for the 746-764 MHz and 776-794 MHz
     bands.[^234] No commenters oppose the use of the Part 1
     standardized auction rules. In the *700 MHz First Report and
     Order*, we decided to use the competitive bidding procedures
     contained in Subpart Q of Part 1 of the Commission\'s Rules for the
     747-762 MHz and 777-792 MHz bands, including any amendments adopted
     in the ongoing Part 1 proceeding.[^235]

105. **[Discussion]{.underline}.** Consistent with our decision in the
     *700 MHz First Report and Order,* we will also use the competitive
     bidding procedures contained in Subpart Q of Part 1 of the
     Commission\'s Rules for the Guard Bands, including any amendments
     adopted in the ongoing Part 1 proceeding.[^236] However, to
     facilitate the Commission's compliance with its statutory
     obligation to deposit the proceeds from the auction of the 30
     megahertz spectrum block as well as the Guard Bands by September
     30, 2000, we delegate to the Wireless Telecommunications Bureau
     authority to suspend our payment deadlines in Sections 1.2107(b)
     and 1.2109(a) of the Commission's Rules[^237] and require that
     winning bidders on all licenses in the 700 MHz bands pay the full
     balance of their winning bids upon submission of their long-form
     applications pursuant to Section 1.2107(c) of our rules.[^238]

### Small Business Definitions

106. **[Background]{.underline}.** In the *NPRM*, we proposed to define
     a small business as any entity with average annual gross revenues
     for the three preceding years not in excess of \$40 million, and a
     very small business as an entity with average annual gross revenues
     for the three preceding years not in excess of \$15 million, for
     the 746-764 MHz and 776-794 MHz bands.[^239] We sought comment on
     these definitions as they relate to the size of the geographic area
     to be covered and the spectrum allocated to each license.[^240] We
     also sought comment on whether the proposed designated entity
     provisions would be sufficient to promote participation by
     businesses owned by minorities and by women, and participation by
     rural telephone companies.[^241]

107. In the *700 MHz First Report and Order* we adopted our proposal to
     define a small business as an entity with average annual gross
     revenues for the preceding three years not exceeding \$40 million,
     and a very small business as an entity with average annual gross
     revenues for the preceding three years not exceeding \$15
     million.[^242] We adopted a 15 percent bidding credit for small
     businesses and a 25 percent bidding credit for very small
     businesses, consistent with the levels adopted in the Part 1
     proceeding,[^243] and we decided not to adopt special preferences
     for entities owned by minorities or women.[^244] We also concluded
     that in calculating gross revenues for purposes of small business
     eligibility, we will attribute the gross revenues of the applicant,
     its controlling interests and its affiliates.[^245]

108. **[Discussion]{.underline}.** We will adopt for the Guard Bands the
     same definitions of small and very small businesses that we adopted
     for the 747-762 MHz and 777-792 MHz bands.[^246] We believe these
     two definitions will provide various types of entities seeking to
     become Guard Band Managers with opportunities to participate in the
     auction of licenses for this spectrum. In calculating gross
     revenues for purposes of small business eligibility, we will
     attribute the gross revenues of the applicant, its controlling
     interests and its affiliates. As noted in the *700 MHz First Report
     and Order*, this approach is consistent with our proposal in the
     *Part 1 Second Further Notice,*[^247] and is similar to the
     attribution rules we have employed for the recent LMDS, 800 MHz
     SMR, and LMS auction proceedings.[^248]

109. For the auction of licenses for the Guard Bands we will also adopt
     tiered bidding credits for small and very small businesses,
     consistent with the levels adopted in the Part 1 proceeding.[^249]
     Accordingly, small businesses will receive a 15 percent bidding
     credit.[^250] Very small businesses will receive a 25 percent
     bidding credit.[^251] As noted in the *700 MHz First Report and
     Order*, we believe that this approach will provide adequate
     opportunities for small businesses of varying sizes to participate
     in spectrum auctions.[^252]

110. We will not adopt special preferences for entities owned by
     minorities or women.[^253] As we concluded in the *700 MHz First
     Report and Order*, in the absence of quantifiable evidence or data
     to support race- or gender-based auction provisions, we do not have
     an adequate record to support such special provisions at this time
     under the current standards of judicial review.[^254] We believe
     the bidding credits we adopt here for small businesses will further
     Congress's objective of disseminating licenses among a wide variety
     of applicants because many minority- and women-owned entities, as
     well as rural telephone companies, are small businesses and will
     therefore qualify for these special provisions. Finally, we decline
     to adopt KM's suggestion that we provide bidding credits to LPTV
     licensees that have been or will be displaced by a DTV station, or
     APCO's suggestion that we establish "auction credits" similar to
     small business bidding credits for state and local governments
     seeking spectrum for public safety communications. [^255] Such
     entities have not established a record that they need bidding
     credits in order to be able to compete in the auction.

# PROTECTION OF TELEVISION SERVICES

111. **[Background]{.underline}.** In the *DTV Sixth Report and
     Order*,[^256] we stated that all analog TV and DTV operations in
     the 746-806 MHz band would be fully protected during the DTV
     transition period. In the *Reallocation Notice,* we noted that new
     licensees in the band will have to protect both analog TV and DTV
     operations from interference.[^257] Noting that land mobile and TV
     stations have successfully shared the 470-512 MHz band (TV Channels
     14-20) in 11 major metropolitan areas of the United States, we
     decided in the *Public Safety Spectrum Report and Order* to
     continue to administer protection criteria for these services in
     the 764-776 MHz and 794-806 MHz public safety bands in the same
     manner.[^258] In the 470-512 MHz band, we relied on minimum
     separation distances based on the various heights and powers of the
     land mobile stations to prevent harmful interference.[^259] In the
     *700 MHz First Report and Order* we decided to apply the factors
     and considerations examined in the *Public Safety Spectrum Report
     and Order* for the protection of TV and DTV operations to the
     747-762 MHz and 777-792 MHz bands.[^260] We also indicated our
     intention to consider specific regulatory requests needed to
     implement voluntary agreements between incumbent broadcast
     licensees and new licensees in the bands.[^261]

112. **[Discussion]{.underline}.** We are extending the protection
     criteria applicable to 30 megahertz spectrum operations to
     operations in the Guard Bands. Section 27.60, as amended, requires
     700 MHz commercial operations, including those in the Guard bands,
     to comply with the provisions of Section 90.545 of our Rules.[^262]
     For example, an entity operating on any portion of the 746-747 MHz
     Guard Band, which is contained in Channel 60, must provide
     co-channel protection to Channel 60, and adjacent channel
     protection to Channels 59 and 61.

113. The Congressional plan set forth in Sections 336 and 337 of the Act
     and in the 1997 Budget Act is to transition this spectrum from its
     current use for broadcast services to commercial use and public
     safety services.[^263] Congress also has directed us to auction the
     36 MHz spectrum for commercial use six years before the relocation
     deadline for incumbent broadcasters in this spectrum, while
     adopting interference limits and other technical restrictions
     necessary to protect full-service analog television service during
     the transition to DTV.[^264] The extended license term specified
     for 700 MHz commercial services on these bands reflects, in part,
     the recognition that incumbent television licensees on these
     frequencies may, under the statutory provision for DTV transition,
     continue to broadcast for some years, delaying the time when new
     users have uncompromised use of the spectrum resource.[^265]

114. In addition, we indicated in the *700 MHz First Report and Order*
     that we will consider specific regulatory requests needed to
     implement voluntary agreements reached between incumbent licensees
     and new users in these bands.[^266] We extend that policy here to
     Guard Band operations. Therefore, in considering whether the public
     interest would be served by approving specific requests, we would,
     for example, consider the benefits to consumers of the provision of
     new wireless services as well as whether such agreements would help
     clear spectrum for public safety use in these bands or could result
     in the provision of new wireless service in rural and other
     relatively underserved communities. On the other hand, we would
     also consider loss of service to the broadcast community of the
     licensee. For example, we would consider the availability of the
     licensee's former analog programming within the service area,
     through simulcast of that programming on the licensee's DTV channel
     or distribution of the programming on cable or DBS, or the
     availability of similar broadcast services within the service area,
     (*e.g*., whether the lost service is the only network service, the
     only source for local service, or the only source for otherwise
     unique broadcast service).

# CANADIAN AND MEXICAN BORDER REGIONS

115. There are currently separate agreements with Canada and Mexico
     covering TV broadcast use of the UHF 470-806 MHz band. Such
     agreements do not reflect the additional use or services being
     adopted in the *700 MHz First Report and Order* and this item.
     While the Commission staff has been involved in discussions with
     both countries regarding coordination or interference criteria for
     the use of these bands in the border areas for the additional
     services, agreements have yet to be reached.[^267] Therefore, until
     such agreements have been finalized, we believe it necessary, as we
     did in the *700 MHz First Report and Order* for the 30 megahertz
     block, to adopt certain interim requirements for operations in the
     Guard Bands along the Canada and Mexico borders.[^268] Accordingly,
     licenses issued for these bands within 120 km of the borders will
     be subject to whatever future agreements the United States develops
     with these two countries. In that the existing agreements for the
     protection of TV stations in these countries are still in effect
     and must be recognized until they are replaced or modified to
     reflect the new uses, licenses in the border areas will be granted
     on the condition that harmful interference may not be caused to,
     but must be accepted from, UHF TV transmitters in Canada and
     Mexico. Furthermore, modifications may be necessary to comply with
     whatever provisions are ultimately specified in future agreements
     with Canada and Mexico regarding the use of these bands. Pending
     further negotiations, we also adopt the protection criteria
     described herein for domestic TV and DTV stations as interim
     criteria for Canadian and Mexican TV and DTV stations.[^269]

# Procedural Matters AND ORDERING CLAUSES[^270]

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

117. Accordingly, IT IS ORDERED that Part 27 of the Commission's Rules
     IS AMENDED to establish service rules for the 746-747/ 776-777 MHz
     and 762-764/ 792-794 MHz bands, as set forth in Appendix C, and
     that, in accordance with Section 213 of the Consolidated
     Appropriations Act, 2000, Pub. Law 106-113, 113 Stat. 1501 (1999),
     these Rules shall be effective immediately upon publication in the
     Federal Register.

118. IT IS FURTHER ORDERED that, pursuant to 47 U.S.C. § 155(c), the
     Chief of the Wireless Telecommunications Bureau IS GRANTED
     DELEGATED AUTHORITY to implement and modify auction procedures in
     the Wireless Communications Services, including the general design
     and timing of the auction, the number and grouping of
     authorizations to be offered in any particular auction, the manner
     of submitting bids, the amount of any minimum opening bids and bid
     increments, activity and stopping rules, and application and
     payment requirements, including the amount of upfront payments, and
     to announce such procedures by Public Notice.

119. IT IS FURTHER ORDERED that, pursuant to 47 U.S.C. § 155(c), the
     Chief of the Wireless Telecommunications Bureau IS GRANTED
     DELEGATED AUTHORITY to suspend the payment deadlines in Sections
     1.2107(b) and 1.2109(a) of the Commission's Rules, 47 C.F.R. §§
     1.2107(b), 1.2109(a), and require that winning bidders on all
     licenses in the 746-764 and 776-794 MHz bands pay the full balance
     of their winning bids upon submission of their long-form
     applications pursuant to Section 1.2107(c) of the Commission's
     Rules, 47 C.F.R. § 1.2107(c).

     FEDERAL COMMUNICATIONS COMMISSION

     Magalie Roman Salas

     Secretary

## [APPENDIX A]{.underline} {#appendix-a .unnumbered}

**[LIST OF PARTIES RESPONDING TO JANUARY 7, 2000 PUBLIC
NOTICE]{.underline}**

## A. Comments {#a.-comments .unnumbered}

American Association of State Highway and Transportation Officials
(AASHTO)

Association for Maximum Service Television, Inc. (MSTV)

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

Com-Net Ericsson Critical Radio Systems

Dataradio Corporation

E.F. Johnson Company

FreeSpace Communications

Kenwood Communications Corporation

International Association of Chiefs of Police (IACP)

Industrial Telecommunications Association, Inc. (ITA)

Land Mobile Communications Council (LMCC)

Major Cities Police Chiefs Association (MCPCA)

Major County Sheriff's Association, Inc. (MCSA)

Microsoft Corporation

Motorola Inc

Personal Communications Industry Association, Inc. (PCIA)

SBC Communications, Inc.

Southern LINC

State of Florida Department of Management Services

Washington County Consolidated Communications Agency (WCCCA)

##  {#section .unnumbered}

## B. Ex Parte Communications and/or Late Filed Comments {#b.-ex-parte-communications-andor-late-filed-comments .unnumbered}

City of Milwaukee Police Department

FreeSpace Communications

Industrial Telecommunications Association, Inc. (ITA)

International Association of Chiefs of Police (IACP)

International Municipal Signal Association and International Association
of Fire Chiefs, Inc. (IMSA)

Kenwood Communications Corporation

Major County Sheriff's Association, Inc. (MCSA)

Microsoft Corporation

Motorola, Inc.

National Telecommunications and Information Administration (NTIA)

## [APPENDIX B]{.underline} {#appendix-b .unnumbered}

**[LIST OF PARTIES RESPONDING TO NOTICE OF PROPOSED
RULEMAKING]{.underline}**

## A. Comments {#a.-comments-1 .unnumbered}

AirTouch Communications, Inc. (AirTouch)

Alaskan Choice Television (Alaskan Choice)

American Mobile Telecommunications Association, Inc. (AMTA)

ArrayComm, Inc.

Association for Maximum Service Television, Inc. (MSTV)

Association of America's Public Television Stations (APTS)

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

BayCom Inc.

Bruggeman, Jeffrey A.

Consumer Electronics Manufacturers Association (CEMA)

Harris Corporation (Harris)

Houston 2-Way Radio (H2)

Industrial Telecommunications Association, Inc. (ITA)

Intek Global Corp.

International Association of Fire Chiefs, Inc. and International
Municipal Signal Association\
(IAFC/IMSA)

Jones, Charles

Kemp, Edwin, F.

KM Communications, Inc.

Microradio Empowerment Coalition

MRFAC, Inc.

Motorola, Inc.

National Translator Association (NTA)

Northside Plumbing Supply

Palletized Trucking, Inc.

Personal Communications Industry Association, Inc. (PCIA)

Rand McNally & Company

Region 20

Rural Telecommunications Group (RTG)

SBC Communications, Inc. (SBC)

Shure Brothers Inc.

Southern Communications, Inc. (Southern)

Telecommunications Industry Assn. (TIA)

U S WEST, Inc.

U.S. GPS Industry Council (GPS Council)

United Telecom Council (UTC)

Utility Communications, Inc.

Walt Disney Company (TWDC)

##  {#section-1 .unnumbered}

## B. Reply Comments {#b.-reply-comments .unnumbered}

AirTouch Communications, Inc.

American Mobile Telecommunications Association, Inc.

ArrayComm, Inc.

Association of American Railroads

Association for Maximum Service Television, Inc. (MSTV)

Association of Public-Safety Communications Officials (APCO)

AT&T Corp.

Bell Atlantic Mobile, Inc. (BAM)

Clearwire Technologies, Inc. (Clearwire)

Consumer Electronics Manufacturers Association (CEMA)

DDI Pocket, Inc.

Fox Ridge Communications, Inc.

Harris Corporation (Harris)

Industrial Telecommunications Association, Inc. (ITA)

International. Inc.

KM Communications, Inc. (KM)

Metricom, Inc.

Motorola, Inc.

National Association of Broadcasters (NAB)

Nextel Communications, Inc. (Nextel)

New York State Technology Enterprise Corporation (NYSTEC)

Public Safety Wireless Network Program (PSWNP)

SBC Communications, Inc. (SBC)

Southern Communications Services, Inc. (Southern)

USA Digital Radio, Inc. (USADR)

US GPS Industry Council (GPS Council)

U S WEST, Inc.

Walt Disney Company (TWDC)

##  {#section-2 .unnumbered}

## C. Ex Parte Communications and/or Late Filed Comments {#c.-ex-parte-communications-andor-late-filed-comments .unnumbered}

Advanced Electronics

Alaska Digital, LLC

All-Com Technologies, Inc.

**Allcom Wireless, Inc.**

American Mobile Telecommunications Association

APCO International

Arizona Department of Public Safety

ArrayComm, Inc.

Association for Maximum Service Television, Inc.

Associations of Public-Safety Communications Officials-International

AT & T Wireless

Atlanta Communications Company

Bair's Electronics Services, Inc.

BayCom, Inc.

BCI Communications

BearCom

Bell Atlantic

Bell Atlantic Mobile

Blair Communications, Inc.

Boeing Company

Burlington Northern Santa Fe Railway Company

Burst Networks, Inc.

Bytel, Inc.

Canadian Pacific Railway

Cellular Telecommunications Industry Assn. (CTIA)

Centre Communications

Cisco Systems, Inc. (Cisco)

City of Chicago, Office of Emergency Communications-Mr. Donatelli

City of Chicago, Office of Emergency Communications-Mr. Nowakowski

City of El Cajon

City of Fort Lauderdale

City of Mishawaka

City of San Diego

Coastal Electronics, Inc.

Cole, Gordon

Coloma Wireless, LLC

Commercial Communications, LLC

Communications & Electronics, Inc.

Communications Electronics, Inc.

Communications Engineering Services

Consumer Electronics Manufacturers Association

Coosa Valley Communications

County of Charleston

CTI Products, Inc.

DATARADIO

Dataradio Group of Companies

Day Wireless Systems

Delta Radio Systems, Inc.

DFW Communications

Dorler Communications Co.

Douglas County Sheriff

EMCO, Inc.

Express Radio, Inc.

Ford Communications

FreeSpace Communications (FreeSpace)

Greer Communications, Inc

Hankey's Radio, Inc.

Hasty's Communication East, Inc.

Houston 2-Way Radio

Industrial Communications & Electronics LLP

Industrial Telecommunications Association, Inc

Intel Government Affairs

Jackson Communications, Inc

Kay Communications, Inc.

KM Communications, Inc.

Leap Wireless International Inc.

Lucent Technologies (Lucent)

Macon Communications, Inc.

Maryland State Police

Mashantucket Pequot Tribal Nation

Maximum Service Television, Inc.

McCord Communications

McDermott Communications Co., Inc.

Metropolitan Communications

Microradio Empowerment Coalition

Microsoft Corporation (Microsoft)

Mobex Communications, Inc.

Mobilcomm

Mobile Communications of Gwinnett, Inc.

Motorola, Inc.

MRFAC, Inc.

National Coordination Committee on Public Safety Spectrum (NCC)

National Telecommunications and Information Administration (NTIA)

Nex-Tech

Nextel Communications, Inc. (Nextel)

North Carolina Smartnet Users Network

North County Dispatch J.P.A.

Office of Emergency Management

Ohio Valley 2-Way Radio, Inc.

P&R Communications, Inc.

PCT Communications

Personal Communications Industry Association (PCIA)

Platte Valley Communications

PSINet

Puget Sound Instrument

QualComm Inc.

Regional Communications, Inc.

Rep. Bliley

Rural Telecommunications Group (RTG)

S&P Communications

Savannah Communications

SBC Wireless, Inc.

Senator Dorgan et al.

Sierra Electronics

Southern Communications Services, Inc. (Southern)

Spectrum

Spectrum Exchange

Supreme Radio Communications, Inc.

Talladega County Emergency Management Agency

TBA Communications, Inc.

Telcordia Technologies, Inc. (Telcordia)

Telephone and Data Systems, Inc. et al. (TDS)

Teletouch Communications, Inc.

Texas Communications

Two Way Radio Services, Inc.

U.S. West Wireless, LLC

Union Pacific Railroad Company

University of Maryland

Walt Disney Company

Western Communications

Whitten's 2-Way Services

Yahoo! Inc.

Appendix C

**FINAL RULES**

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

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

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

PART 27 -- MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

2\. The table of contents for part 27 is amended by revising the
headings for subpart F and Sec. 27.501 and by adding a new subpart G as
follows:

\* \* \* \* \*

Subpart F ‑‑ Competitive Bidding Procedures for the

746-764 MHz and 776-794 MHz Bands

Sec.

27.501 746-764 MHz and 776-794 MHz bands subject to competitive bidding.

\* \* \* \* \*

Subpart G -- Guard Band Managers

Sec.

601. Guard Band Manager authority and coordination requirements.

602. Guard Band Manager agreements.

603. Access to Guard Band Manager's spectrum.

604. Limitation on licenses won at auction.

605. Geographic partitioning and spectrum disaggregation.

606. Complaints against Guard Band Managers.

607. Performance requirements and annual reporting requirement.

3\. Section 27.1 is amended in paragraph (b)(2) to read as follows:

**§ 27.1 Basis and purpose.**

\* \* \* \* \*

\(b\) \*\*\*

\* \* \* \* \*

\(2\) 746-764 MHz and 776-794 MHz.

\* \* \* \* \*

4\. Section 27.2 is amended in paragraph (a), by inserting the phrase
"Except as provided in paragraph (b) of this section" at the beginning
thereof, by redesignating paragraph (b) as paragraph (c), and by
inserting a new paragraph (b) to read as follows:

§ 27.2 Permissible Communications.

\* \* \* \* \*

\(b\) [746-747 MHz, 776-777 MHz, 762-764 MHz and 792-794 MHz
bands]{.underline}. Operators in the 746-747 MHz, 776-777 MHz, 762-764
MHz and 792-794 MHz bands may not employ a cellular system architecture.
A cellular system architecture is defined, for purposes of this part, as
one that consists of many small areas or cells (segmented from a larger
geographic service area), each of which uses its own base station, to
enable frequencies to be reused at relatively short distances.

\* \* \* \* \*

5\. Section 27.4 is amended by adding definitions of "Affiliate," and
"Guard Band Manager" in alphabetical order to read as follows:

**§ 27.4 Terms and definitions.**

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

***Affiliate*.** The definition of the term *affiliate* shall be the
same as in Part 1, Section 1.2110(b)(4) of this chapter.

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

***Guard Band Manager*.** The term *Guard Band Manager* refers to a
commercial licensee in the 746-747 MHz, 762-764 MHz, 776-777 MHz, and
792-794 MHz bands that functions solely as a spectrum broker by
subdividing its licensed spectrum and making it available to system
operators or directly to end users for fixed or mobile communications
consistent with Commission Rules. A *Guard Band Manager* is directly
responsible for any interference or misuse of its licensed frequency
arising from its use by such non-licensed entities.

\* \* \* \* \*

6\. Section 27.5 is amended in paragraphs (b)(1) and (b)(2) by inserting
the phrase "solely to Guard Band Managers" after the word "assignment"
in each paragraph.

7\. Section 27.6 is amended by revising paragraph (b)(1) to read as
follows:

**§ 27.6 Service areas.**

\* \* \* \* \*

\(b\) \*\*\*

\(1\) Service areas for Block A in the 746-747 and 776-777 MHz bands and
Block B in the 762-764 and 792-794 MHz bands are based on Major Economic
Areas (MEAs), as defined in paragraph (a)(1) of this section.

\* \* \* \* \*

8\. Section 27.10 is amended by inserting the following introductory
language at the beginning thereof:

**§ 27.10 Regulatory status.** Except with respect to Guard Band Manager
licenses, which are subject to subpart G of this part, the following
rules apply concerning the regulatory status of licensees in the
frequency bands specified in § 27.5 of this part.

\* \* \* \* \*

9\. Section 27.12 is amended by inserting the phrase "Except as provided
in § 27.604 of this part," at the beginning thereof.

10\. Section 27.13 is amended by revising paragraph (b) to read as
follows:

**§ 27.13 License Period.**

\* \* \* \* \*

\(b\) [746-764 MHz and 776-794 MHz bands]{.underline}. Initial
authorizations for the 746-764 MHz and 776-794 MHz bands, will extend
until January 1, 2015, except that a Part 27 licensee commencing
broadcast services, will be required to seek renewal of its license for
such services at the termination of the eight-year term following
commencement of such operations.

11\. Section 27.50 is amended by redesignating paragraph (a) as
paragraph (b) and paragraph (b) as paragraph (a), and is further amended
in newly-designated paragraph (b) by deleting the phrase "747-762 MHz
and 777-792 MHz" and substituting the phrase "746-764 MHz and 776-794
MHz" in lieu thereof, in newly-designated paragraph (b)(1) and the
heading for Table 1 following paragraph (c) by deleting the phrase
"747-762 MHz" and substituting the phrase "746-764 MHz" in lieu thereof,
and in newly-designated paragraphs (b)(2) and (b)(3) by deleting the
phrase "777-792 MHz " and substituting the phrase "776-794 MHz" in lieu
thereof.

12\. Section 27.53 is amended by redesignating paragraphs (e) and (f) as
paragraphs (f) and (g), respectively, and is further amended in
newly-designated paragraph (f) by deleting the phrase "747-762 MHz and
777-792 MHz bands" and substituting the phrase "746-764 MHz and 776-794
MHz bands" in lieu thereof, and by adding a new paragraph (e) to read as
follows:

**§ 27.53 Emission limits.**

\* \* \* \* \*

\(e\) For operations in the 746-747 MHz, 762-764 MHz, 776-777 MHz, and
792-794 MHz bands, transmitters must meet the following emission
limitations:

\(1\) The adjacent channel coupled power (ACCP) requirements for
transmitters designed for various channel sizes are shown in the
following tables. Mobile station requirements apply to handheld, car
mounted and control station units. The tables specify a maximum value
for the ACCP relative to maximum output power as a function of the
displacement from the channel center frequency. In addition, the ACCP
for a mobile station transmitter at the specified frequency displacement
must not exceed the value shown in the tables. For transmitters that
have power control, the latter ACCP requirement can be met at maximum
power reduction. In the following charts, \"(s)\" means that a swept
measurement is to be used.

**6.25 kHz Mobile Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Center Measurement Maximum ACCP Maximum ACCP

Frequency (kHz) Bandwidth (kHz) Relative (dBc) Absolute (dBm)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

6.25 6.25 -40 not specified

12.50 6.25 -60 -45

18.75 6.25 -60 -45

25.00 6.25 -65 -50

37.50 25.00 -65 -50

62.50 25.00 -65 -50

87.50 25.00 -65 -50

150.00 100.00 -65 -50

250.00 100.00 -65 -50

\>400 to receive band 30 (s) -75 -55

In the receive band 30 (s) -100 -70

**12.5 kHz Mobile Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Center Measurement Maximum ACCP Maximum ACCP

Frequency (kHz) Bandwidth (kHz) Relative (dBc) Absolute (dBm)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

9.375 6.25 -40 not specified

15.625 6.25 -60 -45

21.875 6.25 -60 -45

37.500 25.00 -65 -50

62.500 25.00 -65 -50

87.500 25.00 -65 -50

150.000 100.00 -65 -50

250.000 100.00 -65 -50

\>400 to receive band 30 (s) -75 -55

In the receive band 30 (s) -100 -70

**25 kHz Mobile Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Center Measurement Maximum ACCP Maximum ACCP

Frequency (kHz) Bandwidth (kHz) Relative (dBc) Absolute (dBm)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

15.625 6.25 -40 not specified

21.875 6.25 -60 -45

37.500 25.00 -65 -50

62.500 25.00 -65 -50

87.500 25.00 -65 -50

150.000 100.00 -65 -50

250.000 100.00 -65 -50

\>400 to receive band 30 (s) -75 -55

In the receive band 30 (s) -100 -70

**150 kHz Mobile Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Center Measurement Maximum ACCP Maximum ACCP

Frequency (kHz) Bandwidth (kHz) Relative (dBc) Absolute (dBm)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

100 50 -40 not specified

200 50 -50 -35

300 50 -50 -35

400 50 -50 -35

600 to 1000 30 (s) -60 -45

1000 to receive band 30 (s) -70 -55

In the receive band 30 (s) -100 -75

**6.25 kHz Base Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Measurement Bandwidth Maximum

Center Frequency (kHz) (kHz) ACCP (dBc)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

6.25 6.25 -40

12.50 6.25 -60

18.75 6.25 -60

25.00 6.25 -65

37.50 25.00 -65

62.50 25.00 -65

87.50 25.00 -65

150.00 100.00 -65

250.00 100.00 -65

\>400 to receive band 30 (s) -80 (continues @-6dB/oct)

In the receive band 30 (s) -100

**12.5 kHz Base Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Measurement Bandwidth Maximum

Center Frequency (kHz) (kHz) ACCP (dBc)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

9.375 6.25 -40

15.625 6.25 -60

21.875 6.25 -60

37.500 25.00 -60

62.500 25.00 -65

87.500 25.00 -65

150.000 100.00 -65

250.000 100.00 -65

\>400 to receive band 30 (s) -80 (continues @-6dB/oct)

In the receive band 30 (s) -100

**25 kHz Base Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Measurement Bandwidth Maximum

Center Frequency (kHz) (kHz) ACCP (dBc)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

15.625 6.25 -40

21.875 6.25 -60

37.500 25.00 -60

62.500 25.00 -65

87.500 25.00 -65

150.000 100.00 -65

250.000 100.00 -65

\>400 to receive band 30 (s) -80 (continues @-6dB/oct)

In the receive band 30 (s) -100

**150 kHz Base Transmitter ACCP Requirements**

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Offset from Measurement Bandwidth Maximum

Center Frequency (kHz) (kHz) ACCP (dBc)

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

100 50 -40

200 50 -50

300 50 -55

400 50 -60

600 to 1000 30 (s) -65

1000 to receive band 30 (s) -75 (continues @-6dB/oct)

In the receive band 30 (s) -100

\(2\) *ACCP measurement procedure.* The following procedures are to be
followed for making ACCP transmitter measurements. For time division
multiple access (TDMA) systems, the measurements are to be made under
TDMA operation only during time slots

when the transmitter is on. All measurements must be made at the input
to the transmitter\'s antenna. Measurement bandwidth used below implies
an instrument that measures the power in many narrow bandwidths (e.g.
300 Hz) and integrates these powers across a larger band to determine
power in the measurement bandwidth.

\(i\) *Setting reference level:* Using a spectrum analyzer capable of
ACCP measurements, set the measurement bandwidth to the channel size.
For example, for a 6.25 kHz transmitter, set the measurement bandwidth
to 6.25 kHz; for a 150 kHz transmitter, set the measurement bandwidth to
150 kHz. Set the frequency offset of the measurement bandwidth to zero
and adjust the center frequency of the spectrum analyzer to give the
power level in the measurement bandwidth. Record this power level in dBm
as the \"reference power level\".

\(ii\) *Measuring the power level at frequency offsets \<600kHz:* Using
a spectrum analyzer capable of ACCP measurements, set the measurement
bandwidth as shown in the tables above. Measure the ACCP in dBm. These
measurements should be made at maximum power. Calculate the coupled
power by subtracting the measurements made in this step from the
reference power measured in the previous step. The absolute ACCP values
must be less than the values given in the table for each condition
above.

\(iii\) *Measuring the power level at frequency offsets \>600kHz:* Set a
spectrum analyzer to 30 kHz resolution bandwidth, 1 MHz video bandwidth
and sample mode

detection. Sweep +- 6 MHz from the carrier frequency. Set the reference
level to the RMS value of the transmitter power and note the absolute
power. The response at frequencies greater than 600 kHz must be less
than the values in the tables above.

\(iv\) *Upper Power Limit Measurement:* The absolute coupled power in
dBm measured above must be compared to the table entry for each given
frequency offset. For those mobile stations with power control, these
measurements should be repeated with power control at maximum power
reduction. The absolute ACCP at maximum power reduction must be less
than the values in the tables above.

\(3\) *Out-of-band emission limit.* On any frequency outside of the
frequency ranges covered by the ACCP tables in this section, the power
of any emission must be reduced below the unmodulated carrier power (P)
by at least 43 + 10 log (P) dB.

\(4\) *Authorized bandwidth.* Provided that the ACCP requirements of
this section are met, applicants may request any authorized bandwidth
that does not exceed the channel size.

\* \* \* \* \*

13\. Section 27.55 is amended in paragraph (b) by deleting the phrase
"747-762 and 777-792 MHz bands" and substituting the phrase "746-764 and
776-794 MHz bands" in lieu thereof.

14\. Section 27.60 is amended in the introductory text and in paragraph
(b) by deleting the phrase "747-762 MHz and 777-792 MHz" and
substituting the phrase "746-764 MHz and 776-794 MHz" in lieu thereof
and is further amended in paragraph (b) by deleting the phrase "747-762
MHz or 777-792 MHz " and substituting the phrase "746-764 MHz or 776-794
MHz" in lieu thereof, is amended in paragraph (b)(2)(i) by deleting the
phrase "747-762 MHz" and substituting the phrase "746-764 MHz" in lieu
thereof, and in paragraph (b)(2)(ii) by deleting the phrase "777-792
MHz" and substituting the phrase "776-794 MHz" in lieu thereof.

15\. Section 27.66 is amended by revising paragraphs (a), (b), and (c)
to read as follows:

**§ 27.66 Discontinuance, reduction, or impairment of service.**

\(a\) [Involuntary act]{.underline}. If the service provided by a fixed
common carrier licensee, or a fixed common carrier operating on spectrum
licensed to a Guard Band Manager, is involuntarily discontinued,
reduced, or impaired for a period exceeding 48 hours, the licensee must
promptly notify the Commission, in writing, as to the reasons for
discontinuance, reduction, or impairment of service, including a
statement when normal service is to be resumed. When normal service is
resumed, the licensee must promptly notify the Commission.

\(b\) [Voluntary act by common carrier]{.underline}. If a fixed common
carrier licensee, or a fixed common carrier operating on spectrum
licensed to a Guard Band Manager, voluntarily discontinues, reduces, or
impairs service to a community or part of a community, it must obtain
prior authorization as provided under § 63.71 of this chapter. An
application will be granted within 30 days after filing if no objections
have been received.

\(c\) [Voluntary act by non-common carrier]{.underline}. If a fixed
non-common carrier licensee, or a fixed non-common carrier operating on
spectrum licensed to a Guard Band Manager, voluntarily discontinues,
reduces, or impairs service to a community or part of a community, it
must given written notice to the Commission within seven days.

16\. The heading and the text of Section 27.501 are amended by deleting
the phrase "747-762 MHz and 777-792 MHz" and substituting the phrase
"746-764 MHz and 776-794 MHz" in lieu thereof.

17\. A new subpart G is added to read as follows:

Subpart G Guard Band Managers

§ 27.601 Guard Band Manager authority and coordination requirements.

\(a\) Subject to the provisions of § 27.2(b) of this part and paragraphs
(c) and (d) of this section, a Guard Band Manager may allow a spectrum
user, pursuant to a written agreement, to construct and operate stations
at any available site within the licensed area and on any channel for
which the Guard Band Manager is licensed, provided such stations comply
with Commission Rules and coordination requirements.

\(b\) Subject to the provisions of § 27.2(b) of this part and paragraphs
(c) and (d) of this section, a Guard Band Manager may allow a spectrum
user, pursuant to a written agreement, to delete, move or change the
operating parameters of any of the user's stations that are covered
under the Guard Band Manager's license without prior Commission
approval, provided such stations comply with Commission Rules and
coordination requirements.

(c)(1) A Guard Band Manager must file a separate station application and
obtain all appropriate Commission approvals or authorizations prior to
construction of stations that

(i) require submission of an Environmental Assessment under Part 1,
    Section 1.1307;

\(ii\) require international coordination; or

(iii)would affect the radio frequency quiet zones described in Part 90,
Section 90.177.

\(2\) Prior to construction of a station, a Guard Band Manager must
register with the Commission any station antenna structure for which
notification to the Federal Aviation Administration is required by Part
17 of this chapter.

\(3\) It is the Guard Band Manager's responsibility to determine whether
a referral to the Commission is needed for any individual station
constructed in the Guard Band Manager's license area.

(d)(1) A Guard Band Manager must notify Commission-recognized public
safety frequency coordinators for the 700 MHz public safety band and
adjacent-area Guard Band Managers within one business day after the
Guard Band Manager has

(i) coordinated a new station or modification of an existing station; or

(ii)filed an application for an individual station license with the
Commission.

\(2\) The notification required in subparagraph (1) must include, at a
minimum,

\(i\) the frequency or frequencies coordinated;

\(ii\) antenna location and height;

\(iii\) type of emission;

\(iv\) effective radiated power;

\(v\) a description of the service area, date of coordination, and user
name or, in the alternative, a description of the type of operation.

\(3\) In the event a Guard Band Manager partitions its service area or
disaggregates its spectrum, it is required to submit the notification
required in subparagraph (1) to other Guard Band Managers in the same
geographic area.

\(4\) Entities coordinated by a Guard Band Manager must wait at least 10
business days after the notification required in subparagraph (1) before
operating under the Guard Band Manager's license;

\(5\) If, in the event of harmful interference, the Guard Band Manager
is unable to resolve the problem by mutually satisfactory arrangements,
the Commission may impose restrictions on the operations of any of the
parties involved.

\(e\) Where a deletion, move or change authorized under paragraph (b) of
this section constitutes a discontinuance, reduction, or impairment of
service under § 27.66 of this part, or where discontinuance, reduction
or impairment of service results from an involuntary act subject to §
27.66(a), the Guard Band Manager must comply with the notification and
authorization requirements set forth in that section.

**§ 27.602 Guard Band Manager agreements.**

Guard Band Managers are required to enter into written agreements
regarding the use of their licensed spectrum by others, subject to the
following conditions:

\(a\) The duration of spectrum user agreements may not extend beyond the
term of the Guard Band Manager's FCC license.

\(b\) The spectrum user agreement must specify in detail the operating
parameters of the spectrum user's system, including power, maximum
antenna heights, frequencies of operation, base station location(s),
area(s) of operation, and other parameters specified in Commission rules
for the use of spectrum identified in § 27.5(b)(1) and (b)(2) of this
part.

\(c\) The spectrum user agreement must require the spectrum user to use
Commission-approved equipment where appropriate and to complete
post-construction proofs of system performance prior to system
activation.

\(d\) The spectrum user must agree to operate its system in compliance
with all technical specifications for the system contained in the
agreement and agree to cooperate fully with any investigation or inquiry
conducted by either the Commission or the Guard Band Manager.

\(e\) The spectrum user must agree to comply with all applicable
Commission rules, and the spectrum user must accept Commission oversight
and enforcement.

\(f\) The spectrum user agreement must stipulate that if the Guard Band
Manager determines that there is an ongoing violation of the
Commission's rules or that the spectrum user's system is causing harmful
interference, the Guard Band Manager shall have the right to suspend or
terminate operation of the spectrum user's system. The spectrum user
agreement must stipulate that if the spectrum user refuses to comply
with a suspension or termination order, the Guard Band Manager will be
free to use all legal means necessary to enforce the order.

\(g\) The spectrum user agreement may not impose unduly restrictive
requirements on use of the licensed frequencies, including any
requirement that is not reasonably related to the efficient management
of the spectrum licensed to the Guard Band Manager.

\(h\) Guard Band Managers shall maintain their written agreements with
spectrum users at their principal place of business, and retain such
records for at least two years after the date such agreements expire.
Such records shall be kept current and be made available upon request
for inspection by the Commission or its representatives.

§ 27.603 Access to the Guard Band Manager's spectrum.

\(a\) A Guard Band Manager may not engage in unjust or unreasonable
discrimination among spectrum users and may not unreasonably deny
prospective spectrum users access to the Guard Band Manager's licensed
spectrum.

\(b\) A Guard Band Manager may not impose unduly restrictive
requirements on use of its licensed frequencies, including any
requirement that is not reasonably related to the efficient management
of the spectrum licensed to the Guard Band Manager.

\(c\) A Guard Band Manager may lease a reasonable amount of its spectrum
to an affiliate for the affiliate's own internal use or for the
affiliate's provision of commercial or private radio services. However,
a Guard Band Manager must lease the predominant amount of its spectrum
to non-affiliates.

§ 27.604 Limitation on licenses won at auction.

\(a\) For the first auction of licenses in Blocks A and B, as defined in
§ 27.5 of this part, no applicant may be deemed the winning bidder of
both a Block A and a Block B license in a single geographic service
area.

\(b\) For purposes of paragraph (a) of this section, licenses will be
deemed to be won by the same bidder if an entity that wins one license
at the auction is an affiliate of any other entity that wins a license
at the auction.

§ 27.605 Geographic partitioning and spectrum disaggregation.

An entity that acquires a portion of a Guard Band Manager's geographic
area or spectrum subject to a geographic partitioning or spectrum
disaggregation agreement under § 27.15 of this part must function as a
Guard Band Manager and is subject to the obligations and restrictions on
Guard Band Manager licenses set forth in this subpart.

§ 27.606 Complaints against Guard Band Managers.

Guard Band Managers are expected to resolve disputes with their
customers or disputes between multiple customers of the Guard Band
Manager in the same manner that the parties would resolve other
commercial disputes arising out of the spectrum user agreement. The
Commission will also consider complaints filed against a Guard Band
Manager for violating the Communications Act or the Commission's
regulations or policies. When there is a dispute between a Guard Band
Manager, or its spectrum user, and a non-contracting party, and the
Guard Band Manager is unable or unwilling to resolve such dispute in a
timely fashion, the non-contracting party may file a complaint with the
Commission pursuant to § 1.41 of this chapter.

§ 27.607 Performance requirements and annual reporting requirement.

(a) Guard Band Managers are subject to the performance requirements
    specified in § 27.14(a) of this part.

(b) Guard Band Managers are required to file an annual report providing
    the Commission with information about the manner in which their
    spectrum is being utilized. Such reports shall be filed with the
    Commission on a calendar year basis, no later than the March 1
    following the close of each calendar year, unless another filing
    date is specified by Public Notice.

\(c\) Guard Band Managers must, at a minimum, include the following
information in their annual reports:

\(1\) The total number of spectrum users and the number of those users
that are affiliates of the Guard Band Manager;

\(2\) The amount of the Guard Band Manager's spectrum being used by the
Guard Band Manager's affiliates in any part of the licensed service
area;

\(3\) The amount of Guard Band Manager's spectrum being used pursuant to
agreements with unaffiliated third parties;

\(4\) The nature of the spectrum use of the Guard Band Manager's
customers; and

\(5\) The length of the term of each spectrum user agreement.

\(d\) The specific information that Guard Band Managers will provide and
the procedures that they will follow in submitting their annual reports
will be announced in a Public Notice issued by the Wireless
Telecommunications Bureau.

Separate Statement of Commissioner Susan Ness

> *Re: In the Matter of Service Rules for the 746-764 and 776-794 MHz
> Bands, and Revisions to Part 27 of the Commission's Rules, Second
> Report and Order,* WT Docket No. 99-168
>
> With this Order, we conclude our adoption of rules for licensing new
> commercial services in the spectrum currently utilized by television
> channels 60 to 69. In the near future, we will auction a total of 36
> MHz in the 746-806 MHz band. In our *First Report and Order* in this
> proceeding, I strongly supported our actions unleashing 30 MHz of
> prime spectrum for a variety of wireless services that could include
> fixed and mobile Internet access. Our decision balanced the needs of a
> number of competing demands for spectrum, including those seeking to
> provide wireless alternatives to the local loop, fixed high-speed
> Internet connections and advanced mobile services. We provided for an
> extremely flexible allocation of expansive regional 10 MHz and 20 MHz
> spectrum blocks with the capability for paired channels; the
> marketplace will determine which services will be provided to the
> public. From this action will flow the deployment of new advance
> wireless services that will benefit the public.
>
> In our *First Report and Order*, I also supported the designation of 6
> MHz of spectrum to serve as guard bands to ensure that the public
> safety service licensees that will operate in the 700 MHz band will
> "operate free of interference from any new commercial licensees."
> While I strongly considered a flexible allocation of 36 MHz relying on
> technical constraints alone to protect public safety operations, I
> concluded with my colleagues that the Congressional directive to
> maximize our protection of public safety communications was best
> served by establishing guard bands. Today I also support the strict
> technical rules, coordination requirements, and architectural
> restrictions we adopt to further ensure, as Congress mandated, that
> public safety organizations using frequencies adjacent to commercial
> operations in this band do not suffer harmful interference to their
> critical communications services. In supporting these restrictions, my
> objective, as it was in establishing the guard bands, is to protect
> public safety operations from interference. I have listened carefully
> to the representatives of public safety organizations across this
> country, including APCO and the Independent Association of Police
> Chiefs, and reviewed the conclusions of our staff regarding potential
> interference to public safety operations. While it is a difficult
> balance, I believe the Commission and its staff have made the wisest
> choices to protect public safety. I support the proposed restrictions
> because I conclude that we should not take any unnecessary chance that
> adjacent commercial operations will interfere with the efforts of
> those who place their lives on the line to protect and secure the
> public safety.

**SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH, APPROVING
IN PART, DISSENTING IN PART**

*Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions
to Part 27 of the Commission's Rules, WT Docket No. 99-168, Second
Report and Order (rel. March 9, 2000)*

Although I am pleased that we have brought the guard band licensing
debate to an end, I am disappointed that the majority has taken such a
restrictive and regulatory approach to these bands. As I stated in my
Separate Statement in the First Report and Order, I would have taken a
different tack.[^271]

I have concerns about two portions of today's decision: (1) prohibiting
cellular architecture in the guard bands, and (2) restricting licensees
to "guard band managers." In my view, both of these measures will have
the effect of limiting competition and innovation -- with few, if any,
corresponding public benefits.

Congress mandated that the Commission adopt policies that protect
adjacent public safety licensees.[^272] However, interference protection
is, by its nature, a balancing act. Barring any licensees from the guard
bands would be the most definitive way to ensure Congress' goal of
protecting public safety licensees. Yet, even if we took that sweeping
step, the public safety licensees are still likely to experience some
interference from the "main bands" -- the licensees in the 30 MHz of
spectrum addressed in the First Report and Order. Thus, the real
challenge presented here is to protect public safety in the most
reasonable way possible, consistent with our other policies.

In this Order, we have adopted detailed interference limits to achieve
this goal. In my view, such interference protections coupled with
vigorous enforcement and harsh penalties for noncompliance is generally
sufficient to protect adjoining licensees. This Order supplements that
protection with a frequency coordination requirement. Without passing on
its ultimate necessity, it is clear that frequency coordination provides
another layer of protection for public safety. In addition to
interference limits and frequency coordination, the majority has also
adopted a ban on cellular-style architecture in the guard bands.

In my view, the cellular architecture bar is intrusive, unnecessary and
needlessly limits the range of services available to the American
people. The ban creates Commission obligations to define and enforce
this policy. I certainly do not look forward to resource-consuming
Commission debates over which architectures are sufficiently "cellular"
to be barred.

Apparently it is the majority's view that cellular architecture makes it
too difficult to protect public safety. Yet this view fails to account
for technological innovation that may indeed produce sufficient
protection for public safety licensees. Perversely, today's Order
discourages interference improvements by cellular systems by barring
them completely from the guard bands. The cellular prohibition also
effectively limits the types of services that can be provided in these
bands. In the end, I would have set strict interference limits and
enforced them -- without any of the limitation on the system's
architecture.

I also must dissent from the majority's decision to limit guard band
license eligibility to new government-conceived entities known as "guard
band managers." As I have stated before, I have no inherent objection to
the band manager concept. In my view, if someone makes a business
decision to create such an operation, the Commission should not stand in
the way. However, I am disturbed by the majority's mandate that anyone
interested in participating in the guard band auction must be a "guard
band manager."

A true "test" of the band manager concept would have permitted band
managers to bid against other business models. [^273] The market would
have subsequently sorted out the winners and losers. Then we might have
had some legitimate data to access what the FCC can do to allow the
markets to function more freely. Instead of that potentially useful
test, we have fixed the result -- band managers will win because they
are only ones permitted to play. Limiting an auction to one type of
licensee shortchanges the public and the marketplace.

The guard band manager set-aside also places the FCC in the role of
dictating a business plan. "Guard band managers" must, among other
requirements, lease all of their spectrum to third parties, must set up
a separate affiliate in order to provide service directly to the public,
and must limit their affiliates' use of the spectrum.[^274] This is not
a free market or even a test. It is government implicitly asserting that
it knows better than the marketplace. I cannot join such an "old school"
regulatory approach.

The intrusiveness of this decision is readily demonstrated by an
example. XYZ Corp. wishes to participate in the auction in order to
offer a commercial radio service directly to the public. XYZ believes it
needs an entire 2 MHz license throughout its service area to do so. In
my view, a pro-market, deregulatory FCC should not stand in the way. The
majority, however, has decided that XYZ Corp. needs a little government
"help" with its business plan. So, under today's decision, XYZ Corp.
must become a guard band manager to participate in the auction -- thus
being forced to enter the business of leasing spectrum to third parties
in order to use this spectrum commercially. However, as a guard band
manager it cannot offer service directly to the public; nor can it use
all of a 2 MHz license throughout the service area for its own
operations. Instead, XYZ Corp. must set up an affiliate, ABC Corp.,
which [is]{.underline} permitted to provide service directly to the
public. However, in order to comply with our 50% affiliate use
restriction, ABC can only use 1 MHz of the 2 MHz won by XYZ at
auction.[^275]

The affiliate requirement makes no sense to me. Other than an employment
program for corporate lawyers, there is no public benefit that I can
discern from requiring a band manager to set up an affiliate in order to
provide service to the public. As a "commercial" band under the statute,
I see no reason why guard band licensees should be limited in their
ability to offer services directly to the public.

Similarly the 50% affiliate use restriction seems unnecessary. The
majority seems to believe that businesses will not use their spectrum
resources in the most efficient way possible in order to maximize
profits. This suspicion has led the majority to adopt rules designed to
mandate efficiency by forcing guard band licensees to make a certain
percentage of their purchased spectrum available to unaffiliated third
parties. Unlike the majority, I trust the market to create the most
efficient outcome. In my view, if a licensee makes the most profit by
leasing all of its spectrum to third parties, they will do so. If,
alternatively, a company can make the greatest profits by using the
spectrum in its own business endeavors, then so be it. I place no
normative judgment on either outcome. Therefore I would have eliminated
the 50% affiliate use restriction as well.

Some have argued that the set aside for "guard band managers" is
warranted by our spectrum management obligations and the need to protect
public safety. I cannot agree. Guard band managers are not inherently
more effective at protecting public safety. Public safety protection is
afforded by our interference rules, not by the nature of the licensee's
business plan. Any licensee willing to adhere to our rules would create
at least the same level of interference protection to public
safety.[^276] As for spectral efficiency, band managers do not have any
unique advantage that I can discern. Any licensee (band manager or not)
can engage in site-by-site licensing. Similarly licensees are free to
aggregate and disaggregate as they wish. Regardless of the majority's
aspirations, there is no guarantee that a band manager will make
spectrum available to a critical mass of third parties.[^277] For
example, the majority's rules would allow a band manager to lease 100%
of its spectrum to one unaffiliated entity. Yet the same rules would bar
one guard band licensee from using the spectrum entirely for its own
business. Thus, it's hard to see how the "guard band licensee"
restriction can be viewed as more effective at getting spectrum into
multiple entities' hands. It is my expectation that licensees, like all
businesses, will manage their resources efficiently and obey our
interference rules. It is not clear to me that a government-mandated
business model is necessary or helpful in creating those results.

Based on the foregoing, I respectfully dissent from those portions of
the order barring cellular-style architecture and restricting licensees
to guard band managers.

SEPARATE STATEMENT OF COMMISSIONER MICHAEL POWELL,

DISSENTING IN PART

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

I support the decision in this *Second Report and Order* to establish
firm technical rules for the "Guard Bands" in the 700 MHz band designed
to protect very important public safety radio operations in the adjacent
bands. The additional time spent in seeking comment on the technical
issues has yielded valuable information demonstrating that allowing
cellular architectures in the Guard Bands would present an unacceptable
risk of interference to public safety licensees. The enhanced
coordination difficulties would also be too much to ask
taxpayer-supported public safety agencies to overcome. Therefore, I will
generally defer to the judgments and recommendations of our engineering
experts in the Wireless Telecommunications Bureau and the Office of
Engineering and Technology on these technical and coordination issues,
absent clear and convincing contrary showings. None being presented
here, I accede to the judgment that cellular architectures would pose an
unacceptable risk to public safety. I do so, exclusively, on technical
and coordination grounds.

However, I part company from my colleagues' decision to set-aside these
Guard Band licenses for a single flavor of commercial user \-- the
"Guard Band Manager" (GBM). Guard bands are a valid spectrum management
tool used to protect adjacent spectrum from unacceptable interference,
and with public safety frequencies at issue, one can easily see the
importance of employing them. Of course, if we were unwilling to accept
even minimal interference from the Guard Bands, we would disallow any
providers from operating therein. Yet, the Commission has accepted with
some merit that it is spectrally efficient to allow some operation in
the band, for services that can operate under strict technical
limitations. I agreed with that prior decision, but what is bewildering
is the majority's decision today to allow only one ---
government-designed --- type of commercial provider in the Guard Bands.
The majority does not assert, as it could not possibly, that it has done
so because only GBMs can operate safely in the band. Instead, having
hatched its prized creation, like Dr. Frankenstein, the Commission wants
to incubate the creature in its own sheltered nest. I am not flatly
opposed to the band manager concept as a way to facilitate the
privatization of some of our licensing functions and to make more
spectrum available to end users. I do believe, though, that granting
them exclusive territory in these Guard Bands is unwarranted and ill
advised for a number of reasons.

[First]{.underline}, the set-aside is unnecessary to protect public
safety, which was the sole purpose for establishing the Guard Bands in
our previous Order. The additional interference protections and
procedures adopted here adequately further that purpose. There is no
reason to conclude that a GBM can meet the specifications, but no other
imaginable commercial licensee could. Moreover, disallowing cellular
architectures diminishes the threat of interfering uses resulting from a
proliferation of carriers in the band, which as a practical matter
severely narrows the number and type of viable applicants and users that
might seek this spectrum. Finally, the further step of regulating
various aspects of the commercial relationship between Guard Band
licensees and end users may cost us credibility when it comes to judging
our ability to adopt, implement and enforce our technical rules. [^278]

[Second]{.underline}, restricting the Guard Bands to one form of
licensee smothers the development of innovative uses of the band,
employing different business models and technology. I regret that rather
than extending our prior successes in employing greater licensee
flexibility and fully competitive auctions in order to promote the
highest and best use of commercial spectrum, we are leaning back from
these principles. As a consequence, potential licensees with new and
innovative ways to use these guard bands will either be excluded from
the auction or be forced to modify their business plans (in a very short
time period) to qualify as a GBM. It is the auction process and the
market that should pick the winning and losing business models for the
provision of spectrum-based services. If any entity can comply with the
technical rules, they should not be shut out of the auction or forced to
re-tool quickly their business.

[Third]{.underline}, I am concerned that reserving the Guard Band to
GBMs is not entirely faithful with Congress' direction. We re-allocated
this spectrum, pursuant to the 1997 Balanced Budget Act, for "commercial
uses."[^279] Nevertheless, the *Notice* in this proceeding sought
\"comment on the extent to which, [consistent with the
statute]{.underline}, the spectrum here can and should be available for
[private]{.underline} mobile and [private]{.underline} fixed radio
services."[^280] There has been some genuine doubt as to whether
spectrum secured for private internal use complies with the statute's
commercial use requirement.[^281] Sufficiently concerned with the
language of the statute, the Commission has developed a new approach to
the Band Manager concept and now, according to the government, GBMs
shall be in the "business of leasing spectrum."[^282] To its credit, the
majority does not, however, restrict GBMs to serving only private
wireless users, and will permit them to lease spectrum to a wide range
of customers, including network operators that provide fixed or mobile
internal communications services or commercial radio services to end
users.[^283] But, let's look closer: (1) the prohibition on cellular
architectures tends to favor private and other types of spectrum users
that traditionally deploy non-cellular technology and are experienced in
coordinating among various site-based licensees, including public safety
operations; (2) we originally conceived the Band Manager concept as a
mechanism for auctioning spectrum allocated to private radio
services;[^284] (3) the purpose of the requirement that GBMs lease the
predominant amount of their spectrum to non-affiliates is to "ensure
that we conduct a useful test of the Band Manager concept and obtain the
full benefits of this new licensing approach, a core feature of which is
leasing spectrum to third parties" (Order at ¶ 59); and (4) most
telling, again, the result here is that [only]{.underline} GBMs can bid
for Guard Band spectrum. Thus, when viewed in totality, it is evident
that this exclusivity is principally designed to substantially increase
the likelihood (if not guaranty) that the spectrum ultimately lands in
the hands of private users. This raises some question as to whether we
have acted within the full spirit of Congress' statutory objective.

I would have preferred that the guard band auction be open to all
eligible businesses that are willing to comply with our technical rules.
Accordingly, I respectfully dissent to the decision in the *Second
Report and Order* to license the 700 MHz Guard Bands
[exclusively]{.underline} to Guard Band Managers.

**Separate Statement of**

**Commissioner Gloria Tristani**

Re: *Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions
to Part 27 of the Commissions Rule,* Second Report and Order, WTB Docket
No. 99-168.

Although both sides have made worthy claims to serving the public
interest, I support the decision to impose technical restrictions in the
Guard Band spectrum, including a ban on cellular system architecture.
The 700 MHz spectrum is well-suited for new services that will help
fulfill consumers' growing wireless needs and demands. Interested
parties tout its potential for next generation mobile services and fixed
wireless broadband services that can be deployed ubiquitously. Even the
Guard Bands, which total six megahertz of spectrum, have generated
proposals for a variety of uses, including delivery of broadband
services to underserved and unserved areas. The challenge of the *700
MHz proceeding*, however, has been to craft a framework that allows for
the deployment of such new and innovative services, while fulfilling the
Congressional mandate that public safety operations using adjacent
spectrum are protected from harmful interference. I believe that our
action today, together with the *First Report and Order*, strikes an
appropriate balance.

In the 1997 Balanced Budget Act, Congress directed the Commission to
reallocate the 746-806 MHz band from exclusive broadcast use to public
safety and commercial uses.[^285] In doing so, Congress mandated that
the Commission establish rules to protect public safety users from
harmful interference caused by television broadcasters.[^286] In
addition, Congress directed the Commission to ensure that public safety
users "continue to operate free of interference from any new commercial
licensees."[^287] I take this direction most seriously. As policymakers,
we need to ensure that those who dedicate themselves to protecting life
and property can do their jobs without worrying that their
communications links may be severed at any moment.

Working with the public safety community, industry, my colleagues and
Commission staff, I have sought to provide service rule flexibility
while limiting the potential for harmful interference to public safety
operations. In the 30 megahertz of spectrum that was the subject of the
*First Report and Order*, we adopted rules that take account of these
two objectives. Although certain technical restrictions apply, I have no
doubt that consumers will benefit greatly from the new services that
will be deployed in this spectrum and the exciting applications that
will result.

To give full effect to Congress' direction, however, we adopt rules
today that impose further technical requirements on Guard Band spectrum
immediately adjacent to public safety spectrum. In particular, we
require entities operating in the Guard Bands to adhere to the same
interference protection regime that governs 700 MHz public safety users.
Guard Band Manager licensees will be responsible for engaging in
frequency coordination with public safety coordinators. In addition, the
rules we adopt today prohibit cellular system architectures in the Guard
Bands. The public safety community asserts, and I have come to believe,
that as a practical matter cellular architectures adjacent to public
safety users would create significant hardships in the frequency
coordination process and could increase the potential for harmful
interference. Despite the enticing potential the Guard Band spectrum
offers for certain commercial uses, I believe that our primary
obligation here is to limit the potential for such harmful interference.

I support the action we take today, which fulfills the Congressional
mandate to ensure that public safety users may operate in the 700 MHz
spectrum without harmful interference.

[^1]: *See* Section 337(a) of the Communications Act, 47 U.S.C. §
    337(a), as added by § 3004 of the Balanced Budget Act of 1997, Pub.
    L. No. 105-33, 111 Stat. 251 (1997).

[^2]: The 30 megahertz of spectrum consists of the 747-762 MHz and
    777-792 MHz bands.

[^3]: The 2 megahertz Guard Band includes 746-747 MHz and 776-777 MHz
    and the 4 megahertz Guard Band includes 762-764 MHz and 792-794 MHz.

[^4]: *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*, FCC 00-5 (rel. Jan. 7, 2000)
    ("*700 MHz First Report and Order*"). *See also* 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, *Notice of Proposed
    Rulemaking*, 14 FCC Rcd. 11006 (1999) ("*NPRM*").

[^5]: 47 C.F.R. §§ 1.2107(b), 1.2109(a).

[^6]: 47 C.F.R. § 1.2107(c).

[^7]: *See* 47 U.S.C. § 337(e). *See* 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).

[^8]: *See* Section 337(a) of the Communications Act, 47 U.S.C. §
    337(a).

[^9]: *See* Section 337(b)(2) of the Communications Act, 47 U.S.C. §
    337(b)(2)(a).

[^10]: *See* Pub. Law 106-113, 113 Stat. 1501, Appendix E, Section 213.
    *See also* 145 Cong. Rec. at H12493-94, H12501 (Nov. 17, 1999),
    "Making consolidated appropriations for the fiscal year ending
    September 30, 2000, and for other purposes." ("*Consolidated
    Appropriations*").

[^11]: *See* *700 MHz First Report and Order* at paras. 30-32, 35-39.

[^12]: *See* *700 MHz First Report and Order* at paras. 33-34. The two 1
    megahertz sub-bands are at 746 MHz and 776 MHz, and the two 2
    megahertz sub-bands are at 762 MHz and 792 MHz. *Id.* at para. 34.

[^13]: *Id.* at para. 34.

[^14]: *See, e.g.*, Motorola November 23, 1999 *Ex Parte* Filing;
    Motorola November 24, 1999 *Ex Parte* Filing; FreeSpace December 17,
    1999 *Ex Parte* Filing; Motorola December 22, 1999 *Ex Parte*
    Filing; FreeSpace December 23, 1999 *Ex Parte* Filing; APCO December
    28, 1999 *Ex Parte* Filing.

[^15]: *See* "Public Comment Sought on Issues Related to Guard Bands in
    the 746-764 MHz and 776-794 MHz Spectrum Block," *Public Notice*, DA
    00-31 (rel. Jan. 7, 2000). Some of the issues on which the Bureau
    sought comment were: what out-of-band emission (OOBE) limits the
    Commission should apply to licensees operating in the guard bands to
    protect public safety; whether licensees operating in the guard
    bands should be required to comply with the Adjacent Channel Coupled
    Power (ACCP) OOBE limits that were adopted for 700 MHz public safety
    operations and implement frequency coordination procedures with the
    designated public safety coordinators; whether the Commission should
    restrict operation in the guard bands to those entities that would
    not use an architecture that employs an intense, cellular-like
    frequency re-use pattern or whether there should be different OOBE
    and/or frequency coordination rules applicable to such systems; to
    the extent no restrictions are placed on the nature of the system
    architecture of the licensee operating in the guard bands, what
    other limitations the Commission should place on licensees because
    of the important need to protect public safety. *Id. See also*
    "Deadline for Final Ex Parte and Other Presentations on Issues
    Related to Guard Bands in the 746-764 MHz and 776-794 MHz Spectrum
    Block Extended to January 31, 2000," *Public Notice*, DA 00-134
    (rel. Jan. 27, 2000).

[^16]: A list of the parties that filed pleadings in response to the
    January 7, 2000, *Public Notice*, and the abbreviations used to
    refer to such parties, is included in Appendix A. A list of the
    parties that filed pleadings in response to the *NPRM*, and the
    abbreviations used to refer to such parties, is included in Appendix
    B.

[^17]: 47 U.S.C. § 337(d)(4).

[^18]: H.R. Conf. Rep. No. 105-217, 105^th^ Cong., 1^st^ Sess., at 580
    (1997) ("*Conference Report*").

[^19]: *700 MHz First Report and Order* at para. 103.

[^20]: The 746-747 MHz band is not immediately adjacent to a public
    safety band. However, because it is paired with the 776-777 MHz
    band, which *is* one of the bands situated immediately adjacent to a
    public safety band, we include the 746-747 MHz band as one of the
    four Guard Bands to be addressed in this proceeding. *See 700 MHz
    First Report and Order* at para. 34.

[^21]: *700 MHz First Report and Order* at para. 3.

[^22]: *Public Notice* at 2.

[^23]: *See* Appendix A.

[^24]: Com-Net Ericsson believes that we should adopt the same OOBE
    requirement to protect public safety licensees from Guard Band
    licensees as was adopted to protect public safety licensees from
    *other* public safety licensees. Com-Net Ericsson *PN* Comments at
    4. Dataradio and EF Johnson point out that adopting the same OOBE
    requirement for Guard Band equipment that was adopted for public
    safety equipment could also have the benefit of reducing the costs
    of public safety equipment due to economies of scale that would
    result from both sets of equipment being required to meet the same
    technical standards. Dataradio *PN* Comments at 2; EF Johnson *PN*
    Comments at 1. *See also* Southern *PN* Comments at 4-5.

[^25]: AASHTO, EF Johnson, APCO and Dataradio, in particular, cite, as
    support for their position, the long history of successful
    coordination among the private radio services, including the public
    safety services. AASHTO *PN* Comments at 4; EF Johnson *PN* Comments
    at 1; APCO *PN* Comments at 3; Dataradio *PN* Comments at 2. IACP
    states that "there must be strong frequency coordination rules to
    protect the interests of public safety in the guard bands." IACP
    January 27, 2000 *Ex Parte PN* Filing at 2. ITA advocates
    implementation of existing frequency coordination procedures
    developed by Commission-certified frequency advisory committees for
    the Guard Bands. ITA January 31, 2000 *Ex Parte PN* Filing at 11.
    *See also* LMCC *PN* Comments at 3; IMSA January 31, 2000 *Ex Parte
    PN* Filing at 5; PCIA *PN* Comments at 2-3 (advocating use of the
    frequency coordination system presently used for many Part 90
    frequencies). MCSA contends that frequency coordination is
    particularly important because many Public Safety systems will be
    deployed after the Guard Band systems have commenced operation. MCSA
    January 27, 2000 *Ex Parte PN* Filing at 2. *But see* Southern *PN*
    Comments at 5-6 (arguing that if Guard Band licensees comply with
    our ACCP OOBE limits, they need not be subject to frequency
    coordination; and expressing concern that the frequency coordination
    process would delay the provision of services to the public).

[^26]: Motorola *PN* Comments at A-1; APCO *PN* Comments at 3; Dataradio
    *PN* Comments at 2; Florida *PN* Comments at 1; EF Johnson *PN*
    Comments at 1; Com-Net Ericsson *PN* Comments at 5.

[^27]: *See* Southern *PN* Comments at 6-7; SBC *PN* Comments at 2; MSTV
    *PN* Comments at 3. *See also* Microsoft *Ex Parte PN* filing of
    January 27, 2000 at 4 (emphasizing the Commission's responsibility
    under Section 309(j)(3)(A) of the Communications Act to promote "the
    development and rapid deployment of new technologies").

[^28]: Specifically, FreeSpace proposes *inter alia* that Guard Band
    licensees be required to meet an 87 + 10 log P OOBE limit for
    emissions into the 764-776 MHz public safety band, proposes a series
    of unique frequency coordination procedures with which Guard Band
    licensees would have to comply, and proposes the use of "active
    power control mechanisms" to reduce the probability of interference.
    FreeSpace *PN* Comments at 8-11.

[^29]: APCO *PN* Comments at 3-4. APCO indicates that, historically,
    successful frequency coordination between private wireless and
    public safety licensees is due in large part to their use of similar
    system architectures and equipment.

[^30]: LMCC *PN* Comments at 3; IMSA *PN* Comments at 4.

[^31]: IACP January 27, 2000 *Ex Parte PN* Filing at 1; E F Johnson *PN*
    Comments at 2.

[^32]: Motorola *PN* Comments at 4-6 and Attachment to Appendix A. *See
    also* Dataradio *PN* Comments at 1-2; AASHTO *PN* Comments at 5;
    Kenwood *Ex Parte PN* filing of January 27, 2000 at 2; Milwaukee *Ex
    Parte PN* filing of January 27, 2000 *PN* Comments at 1; MCSA *Ex
    Parte PN* filing of January 27, 2000 at 2; ITA *Ex Parte PN* filing
    of January 31, 2000 at 7-8.

[^33]: Com-Net Ericsson *PN* Comments at 5.

[^34]: Similar to the definition of a \"Cellular System\" found in
    Section 22.99 of our Rules, 47 CFR S 22.99, we define a cellular
    system architecture as one where large geographic service areas are
    segmented into many smaller areas or cells, each of which uses its
    own base station, to enable frequencies to be reused at relatively
    short distances.

[^35]: Motorola *PN* Comments at 2-4 and A-1.

[^36]: The passband is the frequency band within which signals will be
    processed with effectively no attenuation in the receiver. It
    correlates roughly with the operating bandwidth of the receiver. We
    limit the "out-of-band" emissions of unwanted transmissions in order
    to constrain the energy of such transmissions entering the receiver
    passband.

[^37]: As FreeSpace notes, the existence of unwanted energy beyond the
    passband creates two types of problems, front-end overload and
    desensitization. Front-end overload occurs when unwanted emissions
    detected by a receiver (*i.e*., emissions not in the receiver
    passband) produce unwanted mixing products in the receiver's mixer
    or RF amplifier. These products can result in increased noise level
    and distortion, which interfere with the proper detection of the
    desired signal. Desensitization occurs when the unwanted emissions
    enter a receiver's mixer and cause AGC circuitry to attenuate both
    unwanted and desired signals. As a result, the desired signal
    reproduced in the IF stage may be attenuated to a level where it
    cannot be adequately detected.

[^38]: As FreeSpace notes, these forms of interference "become much more
    pronounced as the frequency of the interfering source approaches
    that of the victimized receiver." FreeSpace *PN* Comments, Appendix
    A at 3.

[^39]: FreeSpace argues that to address these types of interference
    (*i.e.*, front-end overload and desensitization), the operating
    power of Guard Band system should be "restricted" compared to the
    power permitted for systems in the 30 megahertz bands. While a Guard
    Band transmitter operating at a lower power would, in general, cause
    less interference than a Guard Band transmitter operating at a
    higher power, the effects and extent of these forms of interference
    are dependent on various, additional factors -- such as the spectral
    and spatial proximity between the transmitter and receiver, and the
    particular technical characteristics of the receiver. Thus, we
    cannot conclude that the adoption of any particular power
    restriction for Guard Band systems, including the power limit
    proposed by FreeSpace, would necessarily or adequately address these
    types of interference.

[^40]: As some commenters point out, an additional benefit of adopting
    the ACCP OOBE requirement for Guard Band equipment could be that the
    costs of public safety equipment would be reduced as a result of
    both Guard Band and public safety equipment being required to meet
    the same technical standards.

[^41]: *See* *700 MHz Public Safety Order* at para. 138.

[^42]: We disagree with Southern's assertion that the frequency
    coordination process will delay the implementation of services to
    the public. *See* Southern *PN* Comments at 5-6. No other commenter
    concurs with Southern's assertion or has provided evidence
    suggesting that this could or would occur. Even assuming frequency
    coordination would lead to limited delays, we find that the
    importance of frequency coordination to protecting public safety
    outweighs those delays.

[^43]: *See* APCO *PN* Comments at 2-3.

[^44]: Motorola *PN* Comments at 4-6.

[^45]: The base stations of cellular and PCS systems are much less
    likely to be situated directly within residential communities.

[^46]: Such interference could occur from base stations operating in the
    762-764 MHz band, and could cause interference to the reception of
    public safety base station transmissions in the adjoining 764-776
    MHz band.

[^47]: FreeSpace also proposes to operate at a relatively low power
    level as a means of lessening the likelihood of interference
    resulting from desensitization and front-end overload of public
    safety receivers. As indicated in footnote 40 above, however, we
    cannot conclude that this measure would adequately address these
    forms of potential interference to public safety receivers.

[^48]: FreeSpace *PN* Comments at 9-10.

[^49]: The 12-meter zone of interference calculated by FreeSpace
    represents a "weighted average" of interference zones, ranging from
    the smaller interference zones that would be situated near a public
    safety base station to the larger interference zones that would be
    situated at the edge of a public safety service area. FreeSpace
    January 25, 2000 *Ex Parte PN* Filing at 17-18.

[^50]: Although we are concerned about interference to the operations of
    both vehicular and portable public safety units, one scenario that
    would be particularly troubling in the context of a FreeSpace
    architecture would be one where a public safety official situated in
    a home might be required to use a handset to call for "back-up."
    Under this scenario, potential interference to the handset from a
    FreeSpace base station located on a nearby rooftop would be of great
    cause for concern.

[^51]: The "worst-case" interference zone calculated by FreeSpace for
    its system \-- *i.e*., at what FreeSpace considers to be the
    "outer-most boundary" of a public safety coverage area \-- is 18
    meters in radius. *See* FreeSpace January 25, 2000 *Ex Parte PN*
    Filing at 21-22.

[^52]: APCO also states that "when potential interference to public
    safety communications is at issue, the Commission must have
    certainty, not broad proposals for untested technology." APCO *PN*
    Comments at 6.

[^53]: *See* "Auction of C and F Block Broadband PCS Licenses, Notice of
    Auction Scheduled for July 26, 2000," *Public Notice*, DA 00-49
    (rel. January 12, 2000).

[^54]: A Further Notice of Proposed Rulemaking addressing various issues
    regarding narrowband PCS service and competitive bidding rules is
    pending. *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, Narrowband PCS, GEN Docket No.
    90-314, ET Docket No. 92-100, Implementation of Section 309(j) of
    the Communications Act---Competitive Bidding, Narrowband PCS, PP
    Docket No. 93-253, *Report and Order and Further Notice of Proposed
    Rulemaking,* 12 FCC Rcd 12972 (1997).

[^55]: *NPRM* at para. 15.

[^56]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended, WT Docket No. 99-87, *Notice of Proposed
    Rule Making*, FCC 99-52, 14 FCC Rcd 5206, 5247-49 paras. 88-95
    (1999) ("*Balanced Budget Act Notice*").

[^57]: *NPRM* at para. 15.

[^58]: *See NPRM* at para. 15; *Balanced Budget Act Notice* at paras.
    90-95.

[^59]: *See* 47 U.S.C. § 303(a)-(g); 47 U.S.C. § 309(j)(3) (authorizing
    the Commission to identify classes of licenses and permits to be
    issued by competitive bidding). Section 303 of the Communications
    Act sets forth the Commission's general powers relating to radio
    frequencies, and states in pertinent part:

    Except as otherwise provided in this chapter, the Commission from
    time to time, as public convenience, interest, or necessity
    requires, shall\--

    > \(a\) Classify radio stations;
    >
    > \(b\) Prescribe the nature of the service to be rendered by each
    > class of licensed stations and each station within any class;
    >
    > \(c\) Assign bands of frequencies to the various classes of
    > stations, and assign frequencies for each individual station and
    > determine the power which each station shall use and the time
    > during which it may operate;
    >
    > \(d\) Determine the location of classes of stations or individual
    > stations;
    >
    > \(e\) Regulate the kind of apparatus to be used with respect to
    > its external effects and the purity and sharpness of the emissions
    > from each station and from the apparatus therein;
    >
    > \(f\) Make such regulations not inconsistent with law as it may
    > deem necessary to prevent interference between stations and to
    > carry out the provisions of this chapter: *Provided*, *however*,
    > that changes in the frequencies, authorized power, or in the times
    > of operation of any station, shall not be made without the consent
    > of the station licensee unless the Commission shall determine that
    > such changes will promote public convenience or interest or will
    > serve public necessity, or the provisions of this chapter will be
    > more fully complied with;
    >
    > \(g\) Study new uses for radio, provide for experimental uses of
    > frequencies, and generally encourage the larger and more effective
    > use of radio in the public interest; . . .

[^60]: Intek suggests that we license this band to private wireless
    users without using competitive bidding. Intek Global Comments at 6.
    However, the Balanced Budget Act of 1997 requires that the
    Commission use competitive bidding to assign licenses in the 36 MHz
    of spectrum within the 746-806 MHz band. *See* 47 U.S.C. §
    337(a)(2), as added by § 3004 of the Balanced Budget Act of 1997.
    Therefore, we will assign Guard Band Manager licenses using
    competitive bidding, as required by Section 337(a)(2).

[^61]: Our references in this Report and Order to the Guard Band
    Manager's "lease" of spectrum are not intended to preclude Guard
    Band Managers from entering into other types of written commercial
    agreements with their spectrum users, provided that such agreements
    are in compliance with our rules on the proper scope of activities
    of Guard Band Managers. *See*, *e.g*., *infra* para. 54 (Because
    Guard Band Manager \"will act only as a spectrum broker and not as a
    wireless service provider, it will not be a carrier of any type.\");
    *see* *also* Appendix C, § 27.4.

[^62]: *See also* *infra* paragraphs 82 - 85, in which we conclude that
    Guard Band Managers will also be permitted to partition their
    service areas and disaggregate their spectrum to other eligible
    Guard Band Managers in accordance with our service rules.

[^63]: See 47 U.S.C. § 309(j)(3).

[^64]: See Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, FCC 99-354, at 4, para. 12 (rel.
    November 22, 1999)

[^65]: *See, e.g.,* David Ward, *ISP Conference Focuses on Life Beyond
    Web Access*, Communications Daily, October 28, 1999; Stephen Lawson,
    *Bandwidth Broker Opens for Business*, Infoworld, October 18, 1999.

[^66]: *See* William E. Kennard, *A New FCC for the 21^st^ Century* 20
    (August 1999) (citing as a key policy initiative, the exploration of
    innovative assignment mechanisms, such as Band Managers, that
    promote efficiency through market forces and enable users to easily
    aggregate and disaggregate spectrum for varied uses); Gregory L.
    Rosston & Jeffrey S. Steinberg, *Using Market-Based Spectrum Policy
    to Promote the Public Interest*, 50 Fed. Comm. L.J. 87, 99-101
    (1997).

[^67]: *See* Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, FCC 99-354, at 11-12, para. 24 (rel.
    November 22, 1999).

[^68]: Band Managers can make spectrum available on a more timely basis
    to private users that may not be able to wait during the time frame
    required to obtain from the Commission authorizations for
    frequencies needed to conduct their business. *See Balanced Budget
    Act Notice* at paras. 80, 92; S&P Communications *Ex Parte* Filing
    at 2. Because the Guard Band Manager will be able to make spectrum
    available for time periods of shorter duration than its own license
    term, licensing of Guard Band Managers will facilitate access to
    spectrum by private users that may need or only be able to afford
    spectrum for shorter periods of time.

[^69]: Guard Band Managers need to refer to the Commission those
    individual stations: (1) that require the submission of an
    Environmental Assessment under 47 C.F.R. § 1.1307; (2) that require
    international coordination; or (3) that would affect the radio
    frequency quiet zones described in 47 C.F.R. § 90.177. In addition,
    any station antenna structure that requires notification to the
    Federal Aviation Administration (FAA) has to be registered with the
    Commission prior to construction. *See* 47 C.F.R. Part 17. It is the
    Guard Band Manager's responsibility to determine whether an
    individual station referral is needed.

[^70]: The license term of each individual station license will be tied
    to the license term of the Guard Band Manager's blanket license.

[^71]: *See*, *e.g.*, *800 MHz First Report and Order,* 11 FCC Rcd at
    1498; 47 C.F.R. § 27.11 (Wireless Communications Service); 47 C.F.R.
    § 24.11 (Personal Communications Service).

[^72]: *See, e.g.*, Motorola September 15, 1999 *Ex Parte* Filing;
    Motorola November 11, 1999 *Ex Parte* Filing; Motorola December 2,
    1999 *Ex Parte* Filing.

[^73]: There are four recognized public safety frequency coordinators
    for the 700 MHz public safety band: Association of Public-Safety
    Communications Officials, Inc. (APCO); International Municipal
    Signal Association (IMSA); Forestry Conservation Communications
    Association (FCCA) and American Association of State Highway and
    Transportation Officials (AASHTO).

[^74]: Guard Band Managers must also notify other Guard Band Managers in
    the same geographic area in the event of partitioning or
    disaggregation.

[^75]: 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 Assignment Policies of the
    Private Land Mobile Radio Services, PR Docket No. 92-235, *Second
    Report and Order*, 12 FCC Rcd 14307, 14330-36, paras. 43-53 (1997)
    ("*Refarming Proceeding*").

[^76]: Section 337(a) provides in pertinent part:

    > (a). . . the Commission shall allocate the electromagnetic
    > spectrum between 746 megahertz and 806 megahertz, inclusive, as
    > follows:
    >
    > \(1\) 24 megahertz of that spectrum for public safety services
    > according to the terms and conditions established by the
    > Commission, in consultation with the Secretary of Commerce and the
    > Attorney General; and
    >
    > \(2\) 36 megahertz of that spectrum for commercial use to be
    > assigned by competitive bidding pursuant to section 309(j).

[^77]: Section 337(f)(1) defines "public safety services" as \"services
    --

    the sole or principal purpose of which is to protect the safety of
    life, health, or property;

    that are provided

    > \(i\) by State or local government entities; or
    >
    > \(ii\) by nongovernmental organizations that are authorized by a
    > governmental entity whose primary mission is the provision of such
    > services; and
    >
    > \(C\) that are not made commercially available to the public by
    > the provider."

[^78]: *See* 47 U.S.C. § 337(f). In the context of cable communications,
    Congress defined "commercial use" as "the provision of video
    programming, whether or not for profit." 47 U.S.C. § 532(b)(5). The
    definition, by its terms, is limited to that section of the statute.
    *Id.*

[^79]: *See, e.g., Russello v. United States*, 464 U.S. 16, 23 (1983)
    (when Congress uses certain language in one part of the statute and
    different language in another, the court assumes that different
    meanings were intended).

[^80]: *See* Reallocation of Television Channels 60-69, the 746-806 MHz
    Band, ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953,
    22959 para. 13 (1998) ("*Reallocation Report and Order*"), *recon*.,
    13 FCC Rcd 21578 (1998) ("*Reallocation Reconsideration*").

[^81]: In the *700 MHz First Report and Order*, we configured these
    bands for expanded wireless fixed and mobile service. *See 700 MHz
    First Report and Order* at paras. 15-19, 35-39.

[^82]: *See* 47 U.S.C. § 332(d) (defining "commercial mobile service"
    and "private mobile service"). *See also* PCIA *Ex Parte* Filing of
    December 20, 1999 at 1-2 (discussing the statutory definitions of
    "CMRS" and "PMRS").

[^83]: *See* 47 U.S.C. § 309(j)(2)(A). A radio service is considered to
    be a common carrier service if it is available to the public. *See*
    Implementation of Sections 3(n) and 332 of the Communications Act,
    GN Docket No. 93-252, *Fourth Report and Order*, 9 FCC Rcd 7123,
    7125 para. 11 (1994).

[^84]: Where Congress includes particular language in one section of a
    statute but omits it in another section of the same statute, it is
    generally presumed that Congress acts intentionally and purposely in
    the disparate inclusion or exclusion. *See Brown v. Gardner*, 513
    U.S. 115,120 (1994) (quoting *Russello v. United States*, 464 U.S.
    16, 23 (1983)).

[^85]: 47 U.S.C. § 337(d)(4).

[^86]: Conference Report at 580.

[^87]: *See* APCO Comments at 3; APCO October 20, 1999 *Ex Parte*
    Filing; APCO November 16, 1999 *Ex Parte* Filing at 1-2 ; NCC
    November 18, 1999 *Ex Parte* Filing at 2; Motorola December 2, 1999
    *Ex Parte* Filing (incorporating several *ex parte* filings in this
    proceeding by other parties). *See also* NCC August 25, 1999 *Ex
    Parte* Filing at 2.

[^88]: *See* Motorola November 3, 1999 *Ex Parte* Filing at 10.

[^89]: *See* Webster's Third New International Dictionary 456 (1976),
    *cited in* United States v. Kim, 193 F.3d 567, 577 (2d Cir. 1999).
    *See also* Implementation of Section 25 of the Cable Television
    Consumer Protection and Competition Act of 1992, Direct Broadcast
    Satellite Public Interest Obligations, MM Docket 93-25, *Report and
    Order*, 13 FCC Rcd 23254, 23290 para. 86 (1998) (distinguishing
    "non-commercial" entities from "commercial" entities organized for
    profit-making purposes).

[^90]: *See* ITA October 7, 1999 *Ex Parte* Filing at 3; ITA November 5,
    1999 *Ex Parte* Filing, attachment at 2; Motorola November 12, 1999
    *Ex Parte* Filing at 4.

[^91]: We reject FreeSpace's contention that our interpretation of
    Section 337(a) should instead be based on a bill introduced, but
    ultimately not passed, during debate on the Balanced Budget Act of
    1997, that would have required the Commission to allocate an
    additional 12 MHz of spectrum for private radio uses. *See*
    FreeSpace October 27, 1999 *Ex Parte* Filing at 4. We do not think
    that Congress's consideration of a proposed set aside of additional
    spectrum for private users can be construed to mean that Congress
    intended to forclose the Commission from making other spectrum
    available under a Guard Band Manager licensing approach in which
    spectrum may be commercially leased for the benefit of private
    users, among others.

[^92]: *See, e.g.,* FreeSpace Oct. 27, 1999 *Ex Parte* Filing; FreeSpace
    Nov. 22, 1999 *Ex Parte* Filing; Bell Atlantic Dec. 17, 1999 *Ex
    Parte* Filing; MSTV Dec. 27, 1999 *Ex Parte* Filing. *See also* CTIA
    Dec. 15, 1999 *Ex Parte* Filing.

[^93]: *See, e.g.,* Motorola Nov. 3, 1999 *Ex Parte* Filing; ITA Nov. 5,
    1999 *Ex Parte* Filing; Motorola Nov. 12, 1999 *Ex Parte* Filing;
    AMTA November 19, 1999 *Ex Parte* Filing; PCIA Nov. 23, 1999 *Ex
    Parte* Filing; Dataradio Nov. 30, 1999 *Ex Parte* Filing; Boeing
    Dec. 2, 1999 *Ex Parte* Filing; ITA Dec. 9, 1999 *Ex Parte* Filing.

[^94]: *See* *supra* paragraphs 14-24, and *infra* paragraphs 97-101,
    112-115.

[^95]: 47 U.S.C. §§ 301, 303, 309(j)(3), (4). Section 303(b) authorizes
    the Commission to prescribe the nature of the service to be rendered
    by each class of licensed station. Section 309(j)(3) authorizes the
    Commission to specify the eligibility and other characteristics of
    licenses to be issued by competitive bidding. Section 309(j)(4)
    authorizes the Commission to prescribe license area designations and
    bandwidth assignments that promote an equitable distribution of
    licenses and services among geographic areas and promote economic
    opportunity for a wide variety of applicants.

[^96]: *See Fresno Mobile Radio, Inc. v. FCC*, 165 F.3d 965, 970-71
    (D.C. Cir. 1999) (Commission acted within its discretion in deciding
    to assign licenses in the 800 MHz SMR service by auction); *DIRECTV,
    Inc. v. FCC*, 110 F.3d 816, 828 (D.C. Cir. 1997) (Commission had
    discretion to select new licensing scheme for Direct Broadcast
    Satellite service).

[^97]: 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. 84-1234, *Final Decision on Remand*, 7 FCC
    Rcd 266, 269 paras. 15-17 (1992).

[^98]: *Id.* at 268 para. 16.

[^99]: *See* 47 C.F.R. § 74.931(e).

[^100]: *See* 47 C.F.R. § 74.631(f).

[^101]: *See* Amendment of Part 74, Subpart F of the Commission\'s Rules
    to Permit Shared Use of Broadcast Auxiliary Facilities with Other
    Broadcast and Non-broadcast Entities and to Establish New Licensing
    Policies for Television Broadcast Auxiliary Stations, BC Docket No.
    81-794, *Report and Order*, FCC 83-153, at para. 12, 53 Rad. Reg. 2d
    (P & F) 1101, 1983 WL 183062 (1983).

[^102]: *See* 47 C.F.R. § 90.179.

[^103]: *See* 47 C.F.R. § 90.179(b).

[^104]: *See also* 47 C.F.R. § 101.135, permitting licensees of private
    operational fixed point-to-point microwave services to share the use
    of their facilities.

[^105]: *See* Frequency Coordination in the Private Land Mobile Radio
    Services, PR Docket No. 83-737, *Report and Order*, 103 FCC 2d 1093
    (1986) ("*1986 Report*"). The Commission's frequency coordination
    requirement was established pursuant to authority, granted in 1982,
    "to utilize assistance furnished by advisory coordinating committees
    . . . ." 47 U.S.C. § 332(b)(1).

[^106]: *See* *1986 Report* at para. 53.

[^107]: *See, e.g.,* Amendment of Part 90 of the Commission's Rules to
    Eliminate Separate Licensing of End Users of Specialized Mobile
    Radio Systems, *Report and Order*, 7 FCC Rcd 5558, 5559-60 paras.
    9,14 (1992) ("*800 MHz SMR End User Licensing Report and Order*").

[^108]: 47 U.S.C. § 503.

[^109]: *See, e.g.,* *800 MHz SMR End User Licensing Report and Order*,
    7 FCC Rcd at 5559-60 para. 14.

[^110]: *See* ITA November 5, 1999 *Ex Parte* Filing.

[^111]: *See* Motorola November 12, 1999 *Ex Parte* Filing at 4.

[^112]: *See* 47 U.S.C. § 308(b).

[^113]: Congress has stipulated that OMB approval pursuant to the
    Paperwork Reduction Act of 1995, 44 U.S.C. § 3507, is not required
    for rules governing this spectrum. *See* *Consolidated
    Appropriations*, Appendix E, Section 213(a)(4)(B). *See also* 145
    Cong. Rec. at H12493, Nov. 17, 1999.

[^114]: *See, e.g.,* 47 U.S.C. § 308(b) (authorizing the Commission,
    during the term of any license, to require a licensee's submission
    of information to enable the Commission to determine whether such
    license should be revoked). *See also* 47 C.F.R. § 1.41 (informal
    requests for Commission action).

[^115]: 47 U.S.C. § 303(y).

[^116]: *NPRM* at para. 57.

[^117]: Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service ("WCS"), GN Docket No. 96-228,
    *Report and Order*, 12 FCC Rcd 10785, 10797-10802 paras. 25-36
    ("*Part 27 Report and Order*")*.*

[^118]: *700 MHz First Report and Order* at para. 46.

[^119]: *Id.*

[^120]: 47 C.F.R. § 20.6. Under Section 20.6, a single entity may
    acquire attributable interests in the licenses of broadband PCS,
    cellular, and SMR services that cumulatively do not exceed 45
    megahertz of spectrum within the same geographic area. In rural
    geographic areas, an entity may acquire as much as 55 megahertz of
    spectrum. *See* *700 MHz First Report and Order* at paras. 48-53.

[^121]: 47 C.F.R. § 153(10).

[^122]: There is little record comment on the appropriate regulatory
    status of Band Managers.

[^123]: *See* *700 MHz First Report and Order* at paras. 48-53.

[^124]: *See NPRM* at para. 15; *Balanced Budget Act Notice* at paras.
    90-95.

[^125]: 47 C.F.R. §§ 27.12, 27.302. *See also Part 27 Report and Order*,
    12 FCC Rcd at 10829, para. 83.

[^126]: 47 U.S.C. § 310.

[^127]: *700 MHz First Report and Order* at para. 49.

[^128]: *See, e.g.*, APCO October 20, 1999 and November 15, 1999 *Ex
    Parte* Filings. *See* *supra* paragraphs 28-35.

[^129]: *See* Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, FCC 99-354, at 4, para. 12 (rel.
    November 22, 1999).

[^130]: We adopt for this purpose the definition of "affiliate" included
    in our Part 1 general competitive bidding rules, 47 C.F.R. §
    1.2110(b)(4).

[^131]: *See generally* PCIA December 10, 1999 *Ex Parte* Filing at 2-4
    (proposing a method for measuring the percentage of spectrum used by
    a Band Manager in a geographic area); PCIA November 23, 1999 *Ex
    Parte* Filing at 3 (proposing to limit Band Managers to use of no
    more than 50 percent of licensed spectrum for their own internal
    purposes). We note that in a different context, the Wireless
    Telecommunications Bureau ("Bureau") recently determined that it
    would permit certain PMRS channels to be used in a licensee's 800
    MHz Specialized Mobile Radio system if that licensee uses the PMRS
    frequencies "predominantly" to relocate incumbent licensees from the
    upper 200 channels of 800 MHz band. For that purpose, the Bureau
    found that "predominent use" meant at least 75 percent of the
    channels involved in the licensees waiver request. *See* Nextel
    Communications, Inc., *Order*, 14 FCC Rcd 11678 (WTB 1999).

[^132]: *See* 47 U.S.C. § 337(f) (defining "public safety services").

[^133]: *See* *NPRM* at para. 15; *Balanced Budget Act Notice* at para.
    95.

[^134]: *Balanced Budget Act Notice* at para. 95.

[^135]: *See, e.g.,* Motorola December 4, 1999 *Ex Parte* Filing.

[^136]: PCIA November 23, 1999 *Ex Parte* Filing at 3.

[^137]: However, if any Guard Band Manager licenses remain unsold after
    the first auction, we intend to lift this "one-to-a-market" rule in
    any subsequent auctions in this band.

[^138]: We adopt for this purpose the definition of "affiliate" included
    in our Part 1 general competitive bidding rules, 47 C.F.R. §
    1.2110(b)(4).

[^139]: *See* *NPRM* at para. 15; *Balanced Budget Act Notice* at para.
    95.

[^140]: *See* Frequency Coordination in the Private Land Mobile Radio
    Services, PR Docket No. 83-737, *Report and Order*, 103 FCC2d 1093,
    para. 18 (1986).

[^141]: *See* Motorola November 24, 1999 *Ex Parte* Filing at 5
    (asserting that extensive rules to ensure competition or "fair
    access" are not required).

[^142]: *See* *generally* PCIA November 23, 1999 *Ex Parte* Filing at 3
    (proposing to limit Band Managers to use of no more than 50 percent
    of licensed spectrum for their own internal purposes).

[^143]: *See infra* paragraphs 69-71*.*

[^144]: 47 U.S.C. §§ 308(b), 309(d). If we find that a Guard Band
    Manager is not complying with the terms of its license, we will
    determine whether to impose appropriate remedies or sanctions. *See*
    47 U.S.C. §§ 312, 503. *See also* 47 U.S.C. § 154(i).

[^145]: *NPRM* at para. 21.

[^146]: Section 27.6 of the Commission\'s Rules, 47 C.F.R. § 27.6. *See
    also Part 27 Report and Order*, 12 FCC Rcd 10785, 10814-16, paras.
    54-60 (1997).

[^147]: "REAs" (Regional Economic Areas) refer to the 12 regions
    established in the WCS auction, which at that time were known as
    Regional Economic Area Groupings (REAGs). See OET mapping
    information on the FCC website \<www.fcc.gov/oet/info/maps/areas/\>.

[^148]: *Part 27 Report and Order*, 12 FCC Rcd at 10814-15, para. 55.

[^149]: *See* Appendix C. The *220 MHz Third Report and Order*
    established groupings of EAs into six regions of approximately equal
    population size based on the 1990 census. *See,* In the Matter of
    Amendment of Part 90 of the Commission's Rules to Provide for the
    Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, RM-8506, Implmentation of Sections
    3(n) and 332 of the Communications Act, GN Docket No. 93-252,
    Regulatory Treatment of Mobile Services Implementation of Section
    309(j) of the Communications Act -- Competitive Bidding, PP Docket
    No. 93-253, FCC 97-57, *Third Report and Order; Fifth Notice of
    Proposed Rulemaking,* 12 FCC Rcd. 10943, (Appendix E) (1997) ("*220
    MHz Third Report and Order*"*)*.

[^150]: *700 MHz First Report and Order* at paras. 56-61. These EAGs
    were configured along the boundaries of the Commission's Economic
    Areas (EAs), except that EA 176 (Gulf of Mexico) was divided
    laterally between EAG003 and EAG005, using the boundary established
    by the Mineral Management Services Bureau of the Department of the
    Interior (MMS) to divide its Central Planning Area for the Gulf of
    Mexico from its Western Planning Area for the Gulf of Mexico. We
    note, in this regard, that the perimeter of EA 176 is not coincident
    with that for MMS's Gulf of Mexico Planning Areas, and that we used
    MMS's Planning Areas in the *700 MHz First Report and Orde*r merely
    to divide EA 176 laterally between EAG003 and EAG005, while leaving
    the remaining boundaries of EA 176 unchanged. *See* Section
    27.6(b)(2)(i) and (ii) of the Commission's Rules. 47 C.F.R. §
    27.6(b)(2)(i) and (ii).

[^151]: Motorola October 4, 1999 *Ex Parte* Filing.

[^152]: PCIA November 23, 1999 *Ex Parte* Filing.

[^153]: AMTA Comments at 8; AMTA November 19, 1999 *Ex Parte* Filing;
    AMTA December 7, 1999 *Ex Parte* Filing; AMTA December 9, 1999 *Ex
    Parte* Filing.

[^154]: Section 309(j)(3)(B) of the Communications Act includes as
    objectives for competitive bidding the avoidance of excessive
    concentration of licenses and the dissemination of licenses among a
    wide variety of applicants. 47 U.S.C. § 309(j)(3)(B).

[^155]: *See* Amendment of the Commission's Rules to Establish Part 27,
    the Wireless Communications Service ("WCS"), GN Docket No. 96-228,
    *Report and Order*, 12 FCC Rcd 10785, 10815 para. 57 (1997).

[^156]: *See infra* paragraphs 82 - 84, in which we conclude that Guard
    Band Managers will be permitted to partition their service areas to
    other eligible Guard Band Managers in accordance with our service
    rules.

[^157]: 47 C.F.R. § 27.13.

[^158]: 47 C.F.R. § 27.14(b).

[^159]: *See 700 MHz First Report and Order* at para. 67.

[^160]: This date may be extended under particular circumstances set
    forth in 47 U.S.C. § 309(j)(14)(B) including for those markets where
    15 percent or more households do not have access to either
    DTV-equipped receivers or multi-channel video.

[^161]: The *700 MHz First Report and Order* erroneously identified this
    date as January 1, 2014. *See* In the Matter of 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, *Errata*, DA 00-450 (rel.
    March 1, 2000) ("*700 MHz Errata*").

[^162]: Given the large geographic licensing areas, each with a number
    of incumbent broadcasters, we set a definite license term, rather
    than one dependent on the date on which incumbent broadcasters
    complete their digital television transition.

[^163]: *See* 47 U.S.C. § 307(c)(1).

[^164]: 47 C.F.R. § 27.14(b). To claim a renewal expectancy, a renewal
    applicant involved in a comparative renewal proceeding must
    demonstrate that it has provided "substantial service" and has
    substantially complied with applicable provisions of the
    Commission's rules, policies, and the Communications Act. See 47
    C.F.R. § 27.14(b)(1)-(2). *See also 700 MHz First Report and Order*
    at para. 68.

[^165]: *See 700 MHz First Report and Order* at para. 68.

[^166]: *See 700 MHz First Report and Order* at para. 68. Because the
    Guard Band Manager will be a broker of spectrum rather than a
    commercial service provider, the use of its licensed spectrum, and
    thus "substantial service," will be demonstrated not by the
    facilities it constructs or the percentage of the population that it
    serves, but by the number and types of spectrum user agreements into
    which it enters. Therefore, in establishing its right to a renewal
    expectancy, a Guard Band Manager's showing will not be required to
    include all aspects of subparagraphs (1)-(3) in Section 27.14(c) of
    our rules. Instead, a Guard Band Manager will be required to make a
    showing that includes the type of information contained in its
    annual report. *See* *infra* paragraphs 79-80.

[^167]: *NPRM* at para. 33.

[^168]: 47 C.F.R. § 27.14(a). This section defines substantial service
    as "service which is sound, favorable, and substantially above a
    level of mediocre service which just might minimally warrant
    renewal." *See Part 27 Report and Order,* 12 FCC Rcd at 10843-45,
    paras. 111-115.

[^169]: AirTouch Comments at 25-26.

[^170]: The *700 MHz First Report and Order* erroneously identified this
    date as January 1, 2014. *See* "*700 MHz Errata*".

[^171]: *700 MHz First Report and Order* at para. 70.

[^172]: S*ee* Gregory L. Rosston & Jeffrey S. Steinberg, *Using
    Market-Based Spectrum Policy to Promote the Public Interest*, 50
    Fed. Comm. L.J. 87, 94-95 (1997).

[^173]: *See* PCIA November 23, 1999 *Ex Parte* Filing at 4.

[^174]: For this purpose, we consider the predominant amount of the
    Guard Band Manager's licensed spectrum to be 50.1 percent of that
    spectrum, measured in bandwidth. *See supra* paragraph 59.

[^175]: Congress has stipulated that OMB approval pursuant to the
    Paperwork Reduction Act of 1995, 44 U.S.C. § 3507, is not required
    for this information collection. *See* *Consolidated
    Appropriations*, Appendix E, Section 213(a)(4)(B). *See also* 145
    Cong. Rec. at H12493, Nov. 17, 1999. To minimize the burden placed
    on Guard Band Managers, we anticipate collecting this information
    electronically, through our Universal Licensing System. The specific
    information that Guard Band Managers will provide and the procedures
    that Guard Band Managers will follow in making this annual report
    will be announced in a subsequent Public Notice to be issued by the
    Wireless Telecommunications Bureau.

[^176]: *See, e.g.,* 47 C.F.R. § 24.709(d).

[^177]: *700 MHz First Report and Order* at para. 75. *See Part 27
    Report and Order* at 10836-37, 10839, paras. 97-99, 102, *citing*
    *Partitioning and Disaggregation Report and Order*, 11 FCC Rcd at
    21847-48, paras. 23-24.

[^178]: *See* Geographic Partitioning and Spectrum Disaggregation by
    Commercial Mobile Radio Services Licensees; Implementation of
    Section 257 of the Communications Act -- Elimination of Market Entry
    Barriers, WT Docket No. 96-148, *Report and Order and Further Notice
    of Proposed Rulemaking*, 11 FCC Rcd 21831, 21843-44, paras. 13-17
    (1996) ("*Partitioning and Disaggregation Report and Order*").

[^179]: *See* 47 C.F.R. § 27.15(a).

[^180]: 47 C.F.R. § 27.15(b)(1).

[^181]: 47 C.F.R. § 27.15(c). *See also* 47 C.F.R. § 1.2111.

[^182]: *See 700 MHz First Report and Order* at paras. 76-78.

[^183]: *See* 47 C.F.R. § 27.15(e)(1). *See also Partitioning and
    Disaggregation Report and Order*, 11 FCC Rcd at 21857, para. 42.

[^184]: *See Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21857, para. 43.

[^185]: *See* 47 C.F.R. § 27.15(e)(2). *See also Partitioning and
    Disaggregation Report and Order*, 11 FCC Rcd at 21865, paras. 62-63.

[^186]: *See Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21864-65, para. 61.

[^187]: 47 U.S.C. §§ 309(b), 309(c). S*ee also* Section 309(d) regarding
    petitions to deny; 47 U.S.C. § 309(d).

[^188]: 47 U.S.C. §§ 309(b)(2)(F).

[^189]: 47 U.S.C. § 309(j) nt. 3.

[^190]: *See Consolidated Appropriations*, Appendix E, § 213. *See also*
    145 Cong. Rec. H12493-94 (Nov. 17, 1999).

[^191]: Amendment of Part 1 of the Commission\'s Rules -- Competitive
    Bidding Procedures, WT Docket No. 97-82, Allocation of Spectrum
    Below 5 GHz Transferred from Federal Government Use, 4660-4685 MHz,
    ET Docket No. 94-32, *Third Report and Order and Second Further
    Notice of Proposed Rulemaking*, 13 FCC Rcd 374, 431 (para. 98)
    (1997), *recon. pending*.

[^192]: 47 C.F.R. §§ 1.2108(b), 1.2108(c).

[^193]: We also determined that applicants filing for both common
    carrier and non-common carrier authorizations in a single license
    and wishing to make subsequent status changes will also be subject
    to the seven-day public notice requirement. *See 700 MHz First
    Report and Order* at para. 80.

[^194]: *See* 47 U.S.C. § 309(b)(2)(F).

[^195]: 47 U.S.C. §§ 310(a), 310(b). *See NPRM* at paras. 29-31.

[^196]: *See* AirTouch Comments at 25.

[^197]: 47 C.F.R. § 27.12. *See also* Section 27.302 of the
    Commission\'s Rules, 47 C.F.R. § 27.302.

[^198]: *700 MHz First Report and Order* at para. 63.

[^199]: *Id.* at para. 63.

[^200]: *Id.* at para. 64.

[^201]: The discussion that follows does not apply to Guard Band
    Managers themselves, because they are not common carriers, but to
    entities operating in the Guard Bands who use the Guard Band
    Manager's spectrum to provide commom carrier services.

[^202]: *See 700 MHz Report and Order* at paras. 82-88.

[^203]: We recently acted to forbear from requiring all common carriers
    to seek authority for interlocking directorates. Thus, common
    carriers that offer fixed services on the 746-764 MHz and 776-794
    MHz bands are also exempt from this requirement. *See* 1998 Biennial
    Regulatory Review of Part 62 of the Commission's Rules, CC Docket
    No. 98-195, *Report and Order*, FCC 99-163, rel. Jul. 16, 1999.

[^204]: 47 C.F.R. § 63.71.

[^205]: *See* Section 27.66 of the Commission's Rules, 47 C.F.R. §
    27.66.

[^206]: Implementation of Section 402(B)(2)(A) of the Telecommunications
    Act of 1996, Petition for Forbearance of the Independent Telephone &
    Telecommunications Alliance, CC Docket No. 71-11, AAD File No.
    98-43, *Report and Order*, FCC 99-104, rel. Jun 30, 1999.

[^207]: *See* Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services, GN
    Docket 93-252, *Third Report and Order*, 9 FCC Rcd 7988, 8097-8100,
    paras 231-237 (1994) ("*CMRS Third Report and Order*").

[^208]: Sections 22.321, 90.168 of the Commission's Rules, 47 C.F.R. §§
    22.321, 90.168.

[^209]: *See* 47 U.S.C. 332(c)(1)(A) (stating in relevant part "\[a\]
    person engaged in the provision of a service that is a commercial
    mobile service shall . . . be treated as a common carrier for
    purposes of this Act"). *See also* 47 C.F.R. § 1.815 (stating in
    relevant part "\[e\]ach common carrier licensee or permitee with 16
    or more full time employees shall file with the Commission . . . an
    annual employment report").

[^210]: The Commission in the *DBS NPRM* proposed that DBS (direct
    broadcast satellite) service licensees have the choice of providing
    service on a broadcast, common carrier, or non-broadcast, non-common
    carrier basis with an applicant's self-characterization determinant
    of the applicable EEO rules. *See* Policies and Rules for the Direct
    Broadcast Satellite Service, IB Docket 98-21, *Notice of Proposed
    Rulemaking,* 13 FCC Rcd 6907, 6924-6925 (1998) ("*DBS NPRM*").

[^211]: *See* Section III.A.1. "Band Plan: Protecting Public Safety
    Operations," *supra*.

[^212]: *See* Sections 27.51, 27.54, 27.56, 27.57, 27.59, 27.61, 27.63
    of the Commission\'s Rules, 47 C.F.R. §§ 27.51, 27.54, 27.56, 27.57,
    27.59, 27.61, 27.63. *See also 700 MHz First Report and Order* at
    para. 2.

[^213]: *See 700 MHz First Report and Order* at paras. 96-97. *See also*
    AirTouch Comments at 29; SBC Comments at 4-5.

[^214]: *See* Sections 90.7, 90.689, and 90.671, 47 C.F.R. §§ 90.7,
    90.689, and 90.671. *See also* Section 90.419(f), which permits SMR
    licensees to operate fixed services on a co-primary basis with their
    mobile operations. 47 C.F.R. § 90.419(f).

[^215]: *See 700 MHz First Report and Order* at para. 97. The predicted
    40 dBu/v field strength shall be calculated using Figure 10 of
    Section 73.699 of this chapter, with a correction factor for antenna
    height differential of --9 dB. 47 C.F.R. § 73.699, Fig. 10.

[^216]: 47 U.S.C. § 337(d)(1).

[^217]: 47 C.F.R. § 27.52.

[^218]: 47 C.F.R. §§ 1.1307(b), 2.1091, 2.1093. These rules identify
    services and devices for which an environmental evaluation must be
    performed. For fixed and base stations, criteria for requiring
    routine evaluation are given in Table 1 of Section 1.1307(b).
    Criteria for evaluation of mobile and portable devices are specified
    in Sections 2.1091 and 2.1093, respectively. Note that, in the case
    of fixed and base stations in this service, 1,000 watts ERP can also
    be expressed as the equivalent 1,640 watts EIRP. The RF radiation
    exposure limits are set forth in 47 C.F.R. §§ 1.1310, 2.1091, and
    2.1093, as modified in Guidelines for Evaluating the Environmental
    Effects of Radiofrequency Radiation, ET Docket No. 93-62, *Report
    and Order*, 11 FCC Rcd 15123 (1996); *First Memorandum Opinion and
    Order*, 11 FCC Rcd 17512 (1997); *Second Memorandum Opinion and
    Order*, 12 FCC Rcd 13494 (1997) (*RF Guidelines Second
    Reconsideration Order*).

[^219]: *700 MHz First Report and Order* at para. 111. SBC supports this
    approach. SBC Comments at 5.

[^220]: OET Bulletin No. 65 (Edition 97-01) was issued on August 25,
    1997, and is available for downloading at the FCC Web Site:
    www.fcc.gov/oet/rfsafety. Copies of OET Bulletin No. 65 also may be
    obtained by calling the FCC RF Safety Line at (202) 418-2464.

[^221]: Antenna heights greater than 305 m HAAT are permitted in
    accordance with Table 1 in Section 27.50 of our Rules, as amended.
    47 C.F.R. § 27.50.

[^222]: Radio transmitters produce energy not only on the desired
    frequency (such as 793 MHz) but also lesser amounts of energy on
    multiples of the desired frequency, known as harmonics. In this
    example, the second harmonic (twice the desired frequency) would be
    1586 MHz. Although most of the power generated is on the desired
    frequency, very sensitive receivers can detect the smaller amounts
    of power generated on the harmonic frequencies.

[^223]: GNSS, as presently envisioned, will consist of the GPS and
    GLONASS systems that provide radionavigation satellite services
    (RNSS) worldwide. The GPS is the United States component of the
    GNSS. It uses the lower portion of the Radionavigation-Satellite
    Service (space-to-Earth) allocation from 1559-1610 MHz on a primary
    basis and is maintained by the United States Department of Defense.
    The other component of the GNSS is GLONASS, the Russian Federation
    Global Orbiting Navigation Satellite System, which will use the
    1598-1605 MHz portion of that allocation (*i.e*., the second
    harmonic frequencies of TV channels 68 and 69) when the system
    reaches its final frequency configuration after 2005.

[^224]: AirTouch argues generally that the proposed OOBE limits could
    negatively affect the production of portable units and the
    consequent availability of the commercial 700 MHz spectrum for
    public use. AirTouch Comments at 30. On the other hand, the U.S. GPS
    Industry Council (USGPS) asserts that the cumulative effect from all
    services in the band operating at proposed emission levels of
    --70/80 dBW/MHz would be devastating for critical safety-of-life GPS
    applications and that, absent case-by-case independent studies, the
    only appropriate wideband out-of-band emission threshold limit would
    be --100 dBW/MHz. USGPS Comments at 4; USGPS Reply at 8.

[^225]: *700 MHz First Report and Order* at paras. 115-120.

[^226]: *NPRM* at para. 82.

[^227]: Codified at 47 U.S.C. § 309(j)(3).

[^228]: *NPRM* at para. 81.

[^229]: *700 MHz First Report and Order* at para. 124.

[^230]: *Id.* at para. 49. Paragraph 135 of the *700 MHz First Report
    and Order* states that public safety entities as defined in Section
    337(f) of the Act will not be permitted to participate in the
    auction of licenses for this spectrum. This statement, which is
    inconsistent with our decision announced in paragraph 49 of the *700
    MHz First Report and Order* regarding open eligibility, is in error.

[^231]: *See supra* paragraph 3.

[^232]: *NPRM* at para. 83.

[^233]: *Id*.

[^234]: *Id*.

[^235]: *700 MHz First Report and Order* at para. 129.

[^236]: The most recent comprehensive order in this proceeding was the
    *Third Report and Order and Second Further Notice of Proposed Rule
    Making*. *See* Amendment of Part 1 of the Commission's Rules --
    Competitive Bidding, WT Docket No. 97-82, Allocation of Spectrum
    Below 5 GHz Transferred from Federal Government Use, 4660-4685 MHz,
    ET Docket No. 94-32, *Third Report and Order and Second Further
    Notice of Proposed Rule Making*, 13 FCC Rcd 374 (1997) ("*Part 1
    Third Report and Order*" and "*Part 1 Second Further Notice*"),
    *recon. pending.*

[^237]: 47 C.F.R. §§ 1.2107(b), 1.2109(a).

[^238]: 47 C.F.R. §§ 1.2107(c).

[^239]: *NPRM* at paras. 85-86.

[^240]: *Id.* at para. 87.

[^241]: *Id*.

[^242]: *700 MHz First Report and Order* at para. 133.

[^243]: *Id.* at para. 134. *See Part 1 Third Report and Order*, 13 FCC
    Rcd at 403-04, paras. 47-48.

[^244]: *700 MHz First Report and Order* at para. 136.

[^245]: *Id.*

[^246]: For the 746-764 MHz and 776-794 MHz bands, the Commission is
    exempt from 15 U.S.C. § 632, which requires Federal agencies to
    obtain Small Business Administration approval before adopting small
    business size standards. *See* *Consolidated Appropriations*,
    Appendix E, Section 213(a)(4)(B). *See also* 145 Cong. Rec. at
    H12493, Nov. 17, 1999.

[^247]: *See Part 1 Second Further Notice*, 13 FCC Rcd at 477-78, paras.
    185-87.

[^248]: *See* Amendment of Parts 1, 2, 21, and 25 of the Commission\'s
    Rules to Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate
    the 29.5-30.0 GHz Frequency Band, to Establish Rules and Policies
    for Local Multipoint Distribution Service and for Fixed Satellite
    Services, CC Docket No. 92-297, *Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking*, 12 FCC
    Rcd 12545, 12692-93 (1997); 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, 19169 (1997); Amendment of Part 90 of
    the Commission\'s Rules to Adopt Regulations for Automatic Vehicle
    Monitoring Systems, PR Docket No. 93-61, *Second Report and Order*,
    13 FCC Rcd 15182, 15194 (1997).

[^249]: *See Part 1 Third Report and Order*, 13 FCC Rcd at 403-04,
    paras. 47-48.

[^250]: *See* 47 C.F.R. § 1.2110(e)(2)(iii).

[^251]: *See* 47 C.F.R. § 1.2110(e)(2)(ii). Bidding credits for small
    businesses are not cumulative; very small businesses may not
    accumulate a 15 percent credit and a 25 percent credit.

[^252]: *700 MHz First Report and Order* at para. 134. *See also Part 1
    Third Report and Order*, 13 FCC Rcd at 403-04, para. 47.

[^253]: *See* Alaskan Choice Comments at 4 (suggesting preferences for
    minorities, women, and underserved communities).

[^254]: *See Adarand Constructors, Inc. v. Peña*, 515 U.S. 200 (1995);
    *United States v. Virginia*, 518 U.S. 515 (1996).

[^255]: KM Comments at 4-5; APCO Comments at 6-7.

[^256]: *See* Advanced Television Systems and Their Impact Upon the
    Existing Television Broadcast Service, MM Docket No. 87-268, *Sixth
    Report and Order*, 12 FCC Rcd 14588, 14626-27 (para. 80)(1997)("*DTV
    Sixth Report and Order*").

[^257]: Reallocation of Television Channels 60-69, the 746-806 MHz Band,
    ET Docket No. 97-157, *Notice of Proposed Rule Making*, 12 FCC Rcd
    14141, 14148, para. 17 (1997)("*Reallocation Notice*").

[^258]: The Development of Operational, Technical and Spectrum
    Requirements For Meeting Federal, State, and Local Public Safety
    Agency Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *First Report and Order and Third Notice of Proposed
    Rulemaking,* 14 FCC Rcd 152, 220-227, paras. 150-164 (1998)
    ("*Public Safety Spectrum Report and Order*")*.*

[^259]: *See* Further Sharing of the UHF Television Band by Private Land
    Mobile Radio Services, General Docket No. 85-172, *Notice of
    Proposed Rulemaking*, 101 FCC 2d 852, 865 (1985), *proceeding
    suspended*, 2 FCC Rcd 6441 (1987).

[^260]: *700 MHz First Report and Order* at para. 139. Certain of our
    decisions with regard to TV protection in the Public Safety Spectrum
    Report and Order are the subject of reconsideration. To the extent
    that our actions with regard to that reconsideration result in
    subsequent changes to the rules adopted in that proceeding, those
    changes may be reflected as they apply or are relevant.

[^261]: *Id*. at para. 145.

[^262]: The provisions of Section 90.545 of our Rules have been
    incorporated into Section 27.60. 47 C.F.R. § 27.60. In addition,
    fixed station operations in the 746-747 MHz and 762-764 MHz bands
    must comply with the relevant provisions for "base stations" in
    Section 90.309 of our Rules, and fixed station operations in the
    776-777 MHz and 792-794 MHz bands must comply with the relevant
    provisions for "control stations" in Section 90.309 of our Rules. 47
    C.F.R. § 90.309.

[^263]: 47 U.S.C. §§ 336-337.

[^264]: *See Consolidated Appropriations*, Appendix E, Sec. 213. *See
    also* 145 Cong. Rec. at H12493-94, (Nov. 17, 1999).

[^265]: *See* Section III.B.4., *supra*.

[^266]: In the *700 MHz First Report and Order* we noted that the joint
    license structure adopted for incumbent television operators
    potentially complicates the negotiation process. *See* *id*. at
    para. 144 and *DTV Proceeding*, 12 FCC Rcd 12834, paras. 57-60.

[^267]: Both Canada and Mexico have been notified that the Commission
    has changed the allocation of these bands, and the Commission has
    discussed with them the possibility of mutually compatible spectrum
    use in all three countries.

[^268]: *700 MHz First Report and Order* at para. 146. Many agreements
    have used the geographic distance of 120 km from the border as the
    coordination or effected area. We will apply this criterion until
    agreements are reached.

[^269]: *See* Section IV, *supra.*

[^270]: Pursuant to Pub. Law 106-113, 113 Stat. 1501, Appendix E,
    Section 213, Chapter 6 of title 5, United States Code, section 3 of
    the Small Business Act (15 U.S.C. § 632), and sections 3507 and 3512
    of title 44, United States Code, shall not apply to this proceeding.

[^271]: See Separate Statement of Commissioner Harold Furchtgott-Roth in
    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 (rel. *Jan. 7, 2000*).

[^272]: 47 U.S.C. § 337 (d)(1).

[^273]: The majority invokes the "test" rationale as a basis for
    limiting affiliated use to less than 50% and prohibiting each guard
    band licensee from obtaining both licenses in one region during the
    first bidding cycle. See ¶¶ 59, 62.

[^274]: See Order at ¶¶ 29, 59.

[^275]: The majority has mandated that a guard band manager licensee
    lease a "predominant" amount of its spectrum to unaffiliated third
    parties. Order at ¶ 59. It is difficult to discern the exact
    parameters of such a requirement. As a proxy for the purposes of
    this statement, I have simplified this requirement into a 50% cap on
    affiliated uses. Presumably that represents at least one viable
    interpretation of this requirement.

[^276]: For example, our frequency coordinators provide many of the same
    interference protections as guard band managers.

[^277]: See Order ¶¶ 32-34

[^278]: In addition to meeting our technical restrictions designed to
    protect public safety, the Order provides that Guard Band licensees
    (1) must make the licensed spectrum available to third parties only
    through "leasing" the spectrum and act only as a "spectrum broker,"
    not as a wireless service provider (Order at ¶¶ 27 and 54); (2) are
    required to lease the \"predominant amount of their spectrum\" to
    non-affiliates (*Id.* at ¶ 59); (3) are limited in the first auction
    to one of the Guard Band Manager licenses in each market for
    competitive reasons (*Id.* at ¶ 62); and (4) are prohibited from
    imposing on end users \"unduly restrictive requirements\" on use of
    the licensed frequencies, such as requiring an end user to purchase
    telecommunications equipment only from one manufacturer or vendor,
    to require use of a particular technology, or to impose operating
    rules that would have the same practical effect (*Id.* at ¶ 66). I
    fear that these limitations on a Guard Band licensee's business will
    also tend to restrict eligibility and participation in this auction.

[^279]: 47 U.S.C. 337(a)(2); Reallocation of Television Channels 60-69,
    the 746-806 MHz Band, ET Docket No. 97-157, *Report and Order*, 12
    FCC Rcd 22953, 22962-63 ¶ 20 (1998) ("The Budget Act requires that
    we assign this portion of the band for commercial use by auction.
    Private organizations or industry groups, however, will have the
    opportunity to seek the desired spectrum by participating in the
    auction.\").

[^280]: 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, *Notice of Proposed Rule Making*, 14 FCC Rcd. 11006,
    11014-15 ¶ 15 (1999) (emphasis added). Several commenters in this
    proceeding suggested that our band plan should include spectrum
    allocated for use by the private wireless industry and licensed to
    Band Managers through auction.

[^281]: *See* Order at ¶¶ 36-41 (dedicating significant ink to these
    "statutory considerations" and concluding that the business of
    leasing spectrum as a GBM constitutes a "commercial use" even if
    private users are permitted to lease spectrum from GBMs.)

[^282]: Order at ¶¶ 2 and 41.

[^283]: *See* Order at ¶ 41. As Commissioner Furchtgott-Roth points out,
    it is unclear whether GBMs are permitted to provide service directly
    to the "public" or only through a separate affiliate. *See also*
    Order at n. 61.

[^284]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended, WT Docket No. 99-87, *Notice
    of Proposed Rule Making*, 14 FCC Rcd 5206, 5247-49 ¶¶ 88-95 (1999)
    ("\[A\] Band Manager would be eligible to apply for a private radio
    license, with mutually exclusive applications subject to resolution
    through competitive bidding. The Commission\'s principal role would
    be to allocate spectrum for private services, establish the size and
    scope of the Band Manager license, and conduct auctions if mutually
    exclusive applications are received. As a condition of the Band
    Manager license, the Band Manager would be required to restrict its
    operations to the offering of internal communications services
    and/or capacity to an identified class of private radio
    eligibles.").

[^285]: 47 U.S.C. § 337(a), amended by the Balanced Budget Act of 1997,
    Pub. L. No. 105-33, 111 Stat. 251, § 3004 (1997) (directing that 24
    megahertz of spectrum be reallocated for public safety use and 36
    megahertz be reallocated for commercial use).

[^286]: 47 U.S.C. § 337(d)(4).

[^287]: H.R. Conf. Rep. No. 105-2015, at 580 (1997).