Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | GN Docket No. 01-74          |
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| Reallocation and Service Rules   | ) |                              |
| for the 698-746 MHz Spectrum     | * |                              |
| Band (Television Channels 52-59) | * |                              |
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**NOTICE OF PROPOSED RULE MAKING**

**Adopted:** March 16, 2001 **Released:** March 28, 2001

Comment Date: May 14, 2001

Reply Comment Date: June 4, 2001

By the Commission: Commissioner Tristani approving in part, dissenting
in part, and issuing a statement.

Table of Contents

Heading Paragraph \#

I. Introduction 1

II\. Background 2

III\. Discussion 8

A. Allocation Proceeding 9

1\. Reallocation 9

a\. Current Allocation 12

b\. Fixed, Mobile, and Broadcast Allocation 14

c\. Special Considerations for Broadcast Allocation 15

d\. Low Power Television Service 17

e\. Satellite Services 19

2\. Transition Issues 20

a\. Incumbent Broadcasters 20

\(i\) Analog Stations 21

\(ii\) Digital Stations 25

\(iii\) Low Power Stations 27

b\. Interference Protection for Television Services 29

\(i\) Protection of Analog Stations 30

\(ii\) Protection of Digital Stations 31

c\. Coordination with Canada and Mexico 34

B. Service Rules 35

1\. Scope of Licenses 40

a\. Permissible Licensed Services 40

b\. Size of Spectrum Blocks for Each License 46

c\. Size of Service Areas for Geographic-Area Licensing 53

d\. Paired or Unpaired Spectrum Bands 60

2\. Technical Rules 65

a\. General Technical Rules 65

b\. Co-Channel Interference Control 66

c\. Out-of-Band and Spurious Emission Limits 76

d\. Power Limits and RF Safety 78

3\. Licensing Rules 80

a\. Regulatory Status 81

b\. Eligibility 89

c\. Spectrum Aggregation Limits 91

d\. Foreign Ownership Restrictions 94

e\. License Term; Renewal Expectancy 97

f\. Performance Requirements 103

g\. Disaggregation and Partitioning of Spectrum. 106

4\. Operating Rules 110

a\. Forbearance 112

b\. Equal Employment Opportunity. 114

5\. Competitive Bidding Procedures 115

a\. Incorporation by Reference of the Part 1 Standardized Auction Rules
116

b\. Provisions for Designated Entities 117

c\. Public Notice of Initial Applications/Petitions to Deny 123

6\. Possible Measures to Facilitate Clearing of 698-746 MHz Band and
Accelerate DTV Transition 125

a\. Voluntary Transition Agreements 128

b\. Secondary Auctions 131

c\. Additional Proposals to Facilitate Band Clearing Accelerate the
Digital Television Transition 133

IV\. PROCEDURAL MATTERS 137

*A.* *Ex Parte* Rules -- Permit-But-Disclose 137

B. Initial Regulatory Flexibility Analysis 138

C. Initial Paperwork Reduction Analysis 139

D. Comment Period and Procedures 141

E. Further Information 146

V. Ordering Clauses 147

Appendix A: Proposed Rules

Appendix B: Incumbent TV Operations

Appendix C: Initial Regulatory Flexibility Analysis

# Introduction

1.  By this action, we propose to reallocate the 698-746 MHz spectrum
    band, currently comprising television ("TV") Channels 52-59. We are
    reclaiming this spectrum for new commercial services as part of our
    transition of TV broadcasting from analog to digital transmission
    systems. Digital television ("DTV") technology is more spectrally
    efficient thus allowing the same amount of television service to
    operate in a reduced allocation, *i.e.,* TV Channels 2-51, after the
    transition. We propose a co-primary allocation for the fixed,
    mobile, and broadcasting services for this 48 megahertz band. This
    flexible allocation will enable service providers to select the
    technology they wish to use to provide new broadband services in
    order to make the best use of this spectrum. We also examine
    possible licensing, operating, and competitive bidding rules for
    wireless and other services in this spectrum band. We anticipate
    that licenses will be assigned by competitive bidding consistent
    with statutory requirements.[^1] We also consider measures to
    protect the incumbent analog and digital broadcast television
    services from interference until the transition to digital
    television is complete. We believe these measures will enable an
    orderly transition for broadcasters while permitting the
    introduction of new services into the band.

# Background

2.  Section 309(j)(14) of the Communications Act of 1934, as amended
    ("Communications Act") requires the Commission to assign spectrum
    recaptured from broadcast television as a result of the transition
    from analog to digital transmission systems by competitive
    bidding.[^2] Section 309(j)(14)(C)(ii) states that the Commission
    shall assign licenses and report to the Congress the total revenues
    from such competitive bidding by September 30, 2002.[^3] The statute
    requires that analog broadcasters cease operation on the recaptured
    spectrum in 2006 unless certain service penetration criteria are
    met.[^4] Specifically, the statute requires the Commission to extend
    the end of the transition on a market-by-market basis if one or more
    of the four largest network stations or affiliates are not
    broadcasting in digital, digital-to-analog converter technology is
    not generally available, or 15% or more television households are
    not receiving a digital signal.[^5] Thus, while the end of the
    transition is targeted for 2006, and may extend beyond that date,
    the Commission must reallocate spectrum and assign commercial
    licenses in the encumbered television spectrum by September 30,
    2002.[^6] Therefore, auction of this spectrum for new services will
    occur a number of years in advance of the end of the digital
    transition, during which period, the incumbent broadcasters may
    continue to operate in the band. New licensees may operate in the
    band prior to the end of the transition to the extent they do not
    cause interference to existing analog and digital broadcasters.[^7]

3.  Under Section 309(j)(3) of the Communications Act, in developing a
    competitive bidding methodology and specifying the characteristics
    of licenses to be assigned by auction, we are required to promote a
    number of objectives, including the development and rapid deployment
    of new technologies, products, and services for the benefit of the
    public, the promotion of economic opportunity and competition, the
    recovery of a portion of the value of the spectrum made available
    for commercial use, and the efficient and intensive use of the
    spectrum, in a manner that provides adequate time for interested
    parties to develop their business plans.[^8] Our regulations shall
    prescribe area designations and bandwidth assignments that
    promote (a) equitable distribution of licenses and services among
    geographic areas, (b) economic opportunity for a wide variety of
    applicants, including small businesses, rural telephone companies,
    and businesses owned by members of minority groups and women,
    and (c) investment in and rapid deployment of new technologies and
    services.[^9]

4.  Section 303(y)(2) of the Communications Act authorizes the
    Commission to allocate spectrum to provide flexibility of use if
    certain conditions are met.[^10] Specifically, the Commission must
    make affirmative findings that such flexibility: (1) is consistent
    with international agreements; (2) would be in the public
    interest; (3) would not deter investment in communications services
    and systems, or technology development; and (4) would not result in
    harmful interference among users.[^11]

5.  Pursuant to legislative mandates, the Commission is requiring that
    the broadcast television service convert from the existing analog
    television transmission system to a new digital television system
    that will allow broadcasters the flexibility to provide a variety of
    new services, including high definition television service,
    multicasting of multiple programs, data services and other
    enhancements.[^12] Broadcasters have been provided a second channel
    to operate their DTV service during the transition from analog to
    digital service.[^13] At the end of this transition, analog service
    will cease and one of each broadcaster's two channels will be
    recovered.[^14] Because the DTV transmission system is more
    spectrally efficient than the analog system, less spectrum will be
    needed for broadcast television service after the transition.[^15] A
    portion of the TV spectrum, *i.e.*, Channels 52-69, is therefore
    being recovered for new uses. Spectrum currently allocated to
    Channels 2-51 will remain "core" television broadcast spectrum.
    Analog services on all TV Channels will cease operations at the end
    of the transition. Digital services on out-of-core stations will be
    relocated into the core spectrum (Channels 2-51).

6.  We are addressing the spectrum reclamation in two parts -- Channels
    60-69 ("Upper 700 MHz Band" or "746-806 MHz band") and Channels
    52-59 ("Lower 700 MHz Band" or "698-746 MHz band") primarily as a
    result of unique statutory requirements and varying degrees of
    incumbency. When we adopted the DTV Table of Allotments in the *DTV
    Sixth Report and Order*, we differentiated between these two bands,
    remarking that: "\[t\]he Table will also provide for early recovery
    of 60 MHz of spectrum (Channels 60-69) and recovery of \[\]
    additional ... spectrum at the end of the \[DTV\] transition
    period."[^16] The Commission's early recovery policies for Channels
    60-69 were predicated on the urgent need for additional spectrum by
    other services, particularly to meet the needs of public safety and
    other land mobile services.[^17] Given the relatively light use for
    full service broadcasting and the proximity of existing land mobile
    communications systems to Channels 60-69, the Commission concluded
    that equipment economies and enhanced interoperability between
    future public safety services and current systems operating in the
    800 MHz band supported early recovery.[^18] The DTV Table also,
    *inter alia*, facilitates the early recovery of Channels 60-69 by
    minimizing the use of these channels for DTV purposes.[^19]
    Subsequently, the BBA 97 was enacted which mandated that the
    Commission reallocate Channels 60-69 to new public safety and
    commercial services by January 1998.[^20] In ET Docket 97-157, the
    Commission reallocated the 746-806 MHz (TV Channels 60-69) band for
    new services. As required by statute, it reallocated 24 megahertz
    for public safety and 36 megahertz for new commercial services.[^21]
    Assignment by competitive bidding for six megahertz of this spectrum
    has been completed[^22] and auction of the remaining 30 megahertz is
    currently planned for later this year.[^23]

7.  Recovery of additional spectrum beyond the 746-806 MHz band (TV
    Channels 60-69) was planned for the end of the digital
    transition.[^24] Thus, early recovery of the 698-746 MHz band (TV
    Channels 52-59) was not contemplated in the DTV transition plan.
    This band is significantly more encumbered with TV operations.[^25]
    Further, both the Congress and the Commission initially expected to
    license the Lower 700 MHz subsequent to the auction of the Upper 700
    MHz Band.[^26] Congress did not specify in the statute the amount of
    spectrum the Commission must reclaim beyond Channels 60-69. The
    Commission determined that broadcasters could operate with digital
    transmission systems in Channels 2-51 and therefore Channels 52-59
    could be reclaimed for new services.[^27]

# Discussion

8.  Our framework for consideration of both allocation and service rules
    for the Lower 700 MHz Band is modeled on our approach in the Upper
    700 MHz proceeding.[^28] In this Notice, we address a number of
    issues similar to those we addressed in the Upper 700 MHz
    proceeding. We seek comment generally on whether the considerations
    that we found to be appropriate for the 746-806 MHz bands are
    equally applicable to the Lower 700 MHz spectrum once it has been
    reallocated, or whether, given the differences in the two bands, we
    should apply other approaches.

## Allocation Proceeding

### Reallocation

9.  In recent years, there has been tremendous growth in new wireless
    services and demand for spectrum.[^29] Notwithstanding the
    introduction of more efficient digital technologies that increase
    the potential capacity of spectrum to provide communications
    services, continuing expectations regarding increased demand raise
    the concern that spectrum may be a limiting factor for new
    technology and services. In the United States, virtually all
    spectrum, particularly in the most sought after bands below 3 GHz,
    has been assigned to various services. Consequently, with the
    exception of several small bandwidth segments of only a few
    megahertz each that are not sufficient to support high volume
    operations, there is very little unencumbered spectrum available for
    new uses or users. In order to provide spectrum for new services, we
    now have to find ways for such services to share spectrum with
    existing services or to reallocate spectrum from existing services
    to new services and technologies. In the latter case, we have
    sometimes implemented plans that relocate incumbent operations to
    other, generally higher frequency bands, and other times simply
    reduced the amount of bandwidth available for a service.[^30]

10. The transition to digital television and resulting spectrum
    reclamation is a prime example of the types of activities the
    Commission has undertaken to make new spectrum available. As a
    result of more spectrally efficient digital technology, the
    Commission is able to reduce the amount of spectrum currently
    allocated to broadcasting by 108 megahertz. This transition is a
    significant undertaking. In order to facilitate the transition, we
    must balance the desire for new services with the significant
    investment and planning required by the broadcasters to build new
    digital facilities and relocate operations.

11. As previously noted, the Commission has anticipated, given the
    degree of incumbency, that this band likely would remain principally
    a television band until the end of the digital transition. However,
    given the statutory requirement to auction this spectrum several
    years in advance of the end of the transition, we seek comment
    generally on our reallocation plans and service rules necessary to
    license the spectrum consistent with the Congressional mandate. We
    also seek comment on whether we should consider ways to facilitate
    the DTV transition and the availability of this band to auction
    bidders sooner. In making proposals, commenters should address
    consistency with the statutory requirements of Section 309(j)(14)
    and other relevant provisions of the Communications Act.

#### Current Allocation

12. Domestically, the 698-746 MHz band is currently allocated on a
    primary basis to non-government broadcasting, *i.e.,* TV Channels
    52-59, each having a bandwidth of six megahertz. TV broadcast
    services are also permitted to use TV subcarrier frequencies, and
    more generally the TV channel, on a secondary basis for other
    broadcast-related (*e.g.,* datacasting) and non-broadcast
    purposes.[^31] Further, the band is allocated to the fixed service
    for subscription television operations in accordance with Part 73 of
    our rules.[^32] Internationally, the band is allocated worldwide on
    a primary basis to the broadcasting service. The band is also
    allocated to the fixed and mobile services in Region 2 (which
    includes the United States) on a secondary basis and in Region 3 on
    a co-primary basis.[^33] A footnote to the International Table of
    Frequency Allocations elevates the allocation to the fixed and
    mobile services to primary status in the United States, Mexico, and
    several other Region 2 countries, but has not been implemented
    domestically.[^34]

13. In its 1999 *Spectrum Reallocation Policy Statement*, the Commission
    noted that it planned to consider reallocating the 698-746 MHz band
    for Fixed, Mobile and new Broadcast services for commercial uses
    following the same approach it adopted for reallocating the 36
    megahertz at 746-764 MHz and 776-794 MHz.[^35] In the Commission's
    recently adopted *3G Notice* on Advanced Fixed and Mobile Services,
    the 698-746 MHz band was identified as a possible candidate for
    third-generation ("3G") mobile services.[^36] Further, a resolution
    adopted at World Radiocommunication Conference ("WRC")-2000
    recognized that some administrations may use the 698-746 MHz band
    for 3G services.[^37] At WRC-2000, the United States proposed that
    the 698-746 MHz band be identified as one of several candidate bands
    for the terrestrial component of International Mobile
    Telecommunications ("IMT")-2000 (3G) and other advanced
    communication applications.[^38]

#### Fixed, Mobile, and Broadcast Allocation

14. Consistent with our *Spectrum Reallocation Policy Statement*, the
    allocation for the 746-806 MHz band, and U.S. positions taken at
    WRC, we propose to reallocate the entire 48 megahertz of spectrum in
    the 698-746 MHz band to the fixed and mobile services, and retain
    the existing broadcast allocation. Consistent with this proposal, we
    also make editorial modifications to Footnote NG 159 to the Table of
    Allocations.[^39] This allocation will support a family of services,
    including next generation broadband operations, and permit the
    maximum diversity in service offerings and the broadest licensee
    discretion, consistent with international allocations. This spectrum
    is located near spectrum now used for cellular radio telephone and
    other land mobile services, and it could be used to expand the
    capacities of these services. Other possible applications for this
    spectrum include wireless local loop telephone service, video and
    multimedia applications, and industrial communications services.
    Additionally, under our proposal, parties would be able to obtain
    licenses in this spectrum to offer broadcasting services. We request
    comment on whether this broad allocation is appropriate, or whether
    some other allocation would better serve the public interest. We
    also seek comment with respect to each of the findings required
    under Section 303(y) with respect to our proposed allocation of the
    698-746 MHz band.[^40]

#### Special Considerations for Broadcast Allocation

15. The DTV transition plan anticipates that broadcasters will vacate
    this spectrum by the end of the DTV transition period. For this
    reason, we would distinguish between broadcasters authorized
    pursuant to the current allocation and service rules from new
    licensees who may provide broadcasting service. New licensees will
    be subject to the rules we will adopt for the regulation of the
    reallocated spectrum. Broadcasters authorized under the current
    rules are entitled to protection or accommodation from new licensees
    and will have to vacate this spectrum by the end of the transition
    period. We envision that new broadcast services that may find this
    band attractive could include two-way interactive, cellular, and
    mobile television broadcasting services. For example, a number of
    existing broadcasters and others have expressed interest in
    operating DTV services with a coded orthogonal frequency division
    multiplex (COFDM) modulation system that they believe would support
    mobile television services. This allocation could provide
    opportunities for these parties to operate such services.

16. At the end of the transition, television broadcasting will remain
    adjacent to the 698-746 MHz band on channel 51.[^41] While we will
    consider issues such as field strength limitations in our service
    rules, we seek comment on whether restrictions to the allocation are
    necessary to protect adjacent channel broadcast television
    operations. For example, should we consider a guard band or a
    separate allocation at the lower end of the band limited to low
    power services? Alternatively, would the 698-746 MHz band be more
    useful for fixed services than mobile services in light of the high
    number of incumbent broadcasters that operate on the spectrum? In
    this regard, the comments should address whether fixed services may
    be more successful than mobile services in structuring their systems
    to avoid interference with incumbent broadcasters, and thus be able
    to use the spectrum more efficiently. We are also concerned about
    the effects of adjacent channel television broadcasting on low power
    mobile operations in the 698-746 MHz band, for example mobile
    receive antennas.[^42] We seek comment on whether we should adjust
    our allocation to perhaps minimize the presence of systems with low
    immunity to high-powered signals.

#### Low Power Television Service

17. The low power television ("LPTV") service currently operates on a
    secondary basis in the 698-746 MHz band. Thus, LPTV stations are
    allowed to operate to the extent they do not interfere with full
    power stations. In our *DTV Proceeding*, we determined that there is
    insufficient spectrum to preserve all existing LPTV and TV
    translator stations, and decided that LPTV and TV translator
    stations will retain their secondary allocation status.[^43] In the
    746-806 MHz proceeding, we permitted continuing operations on a
    secondary basis for existing low power services in that band. At the
    end of the transition, low power television will be required to
    cease operations on these frequencies. In the *DTV Proceeding*, we
    amended our rules to permit all LPTV stations on Channels 60 to 69
    to file displacement relief applications at any time requesting a
    channel below Channel 60, even where there is no predicted or actual
    interference conflict.[^44]

18. We subsequently extended the presumption of displacement to LPTV
    stations and TV translators authorized on Channels 52-59.[^45]
    Because we did not anticipate recovery of the 698-746 MHz band prior
    to the end of the transition, we did not specifically address the
    status of LPTV vis-à-vis new service providers prior to the end of
    the transition. Nor did we address whether LPTV stations should be
    permitted to operate in this band after the end of the transition.
    Section 337(e)(2) of the Communications Act states that after
    allocating the 746-806 MHz band "the Commission shall seek to
    assure, consistent with the Commission's plan for allotments for
    digital television service, that each qualifying low-power
    television station is assigned a frequency below 746 MHz to permit
    the continued operation of such station."[^46] As a result, we
    believe that low power television should be permitted to continue to
    operate on the 698-746 MHz band on a secondary basis. Accordingly,
    we propose that LPTV and TV translator stations not be permitted to
    cause harmful interference to stations of primary services,
    including new licensees in Channels 52-59, and cannot claim
    protection from harmful interference from stations of primary
    services, including new licensees in Channels 52-59. However, as set
    forth in the *DTV Sixth Report and Order*, we propose that LPTV and
    TV translator operations will not be required to alter or cease
    their operations until they actually cause interference to a DTV
    station or new service provider's operations in the 698-746 MHz
    band.[^47] Further, as we did in the 746-806 MHz band, we propose
    that LPTV stations be permitted to negotiate interference agreements
    with new service providers.[^48] We note that it may be possible for
    many low power stations operating on Channels 52-59 to co-exist with
    new service operations on a non-interfering basis. For example, in
    certain regions of the country, such as rural areas and the western
    mountainous states, LPTV stations and TV translators may not be
    affected by new service operations, at least not in the near future.
    Although we recognize that LPTV and TV translator stations retain
    this secondary status, we seek comment on these proposals and any
    additional considerations that might mitigate the impact on low
    power operations on Channels 52-59 during the transition period.

#### Satellite Services

19. While we are not making a specific proposal at this time concerning
    an allocation in this band for satellite services, we also seek
    comment on this issue. The 698-746 MHz band could possibly be used
    for satellite uplink transmissions.[^49] While there may be
    significant constraints on such uses because of the existing
    high-powered transmitters in this band, several satellite systems
    utilize technologies that may make satellite operations possible. We
    seek comment on whether satellite operations, including satellite
    feeder link operations, which typically involve a limited number of
    earth station locations, are technically feasible in this band. In
    addition, while the BBA 97 requires that we assign spectrum
    reclaimed from broadcasters as a result of the digital transition by
    competitive bidding,[^50] subsequently-enacted legislation restricts
    the use of competitive bidding to license spectrum used for the
    provision of certain international satellite services.[^51] We seek
    comment on whether these statutory provisions would affect our
    ability to allocate spectrum for flexible uses that would include
    the ability to deploy satellite services^,^ subject to appropriate
    interference and other technical limitations.[^52]

### Transition Issues

#### Incumbent Broadcasters 

20. As noted above, incumbent broadcasters may remain on the 698-746 MHz
    band until the end of the digital transition targeted for 2006. The
    target date of 2006 may be extended for several years depending on
    DTV consumer penetration levels.[^53] Upon completion of the
    transition, analog service will cease and the digital incumbents
    will be relocated into the "core" spectrum (Channels 2-51). The
    significant degree of incumbency will pose considerable challenges
    to the provision of viable new commercial services prior to the end
    of the transition.[^54] We seek comment generally on how we can
    further the viability of auction of this spectrum consistent with
    our statutory obligations and sound principles of spectrum
    management.

##### Analog Stations

21. Currently, there are 89 licensed full service NTSC analog stations
    and 12 approved analog construction permits on the 698-746 MHz band.
    For the 746-806 MHz band, we concluded that stations for which a
    construction permit has been granted are sufficiently far enough
    along the licensing process that they should be treated the same as
    operating TV stations and receive protection from new service
    providers during the DTV transition period.[^55] The Commission has
    established a three-year construction requirement to ensure that
    holders of construction permits, both for new facilities and
    modification of existing facilities, progress in construction.[^56]
    We propose to treat construction permits in the 698-746 MHz band in
    the same manner we adopted in the 746-806 MHz band and seek comment
    on this proposal.

22. In the *DTV Sixth Further Notice*, in order to accommodate parties
    who were in the process of preparing applications, we established a
    final opportunity for the filing of new applications for analog
    stations for vacant allotments.[^57] This filing period closed on
    September 20, 1996. Subsequently, the Commission established a
    second filing period to allow persons with certain pending requests
    for new analog stations to modify their requests, if possible, to
    eliminate technical conflicts with DTV stations and to move from
    Channels 60-69.[^58] This second filing period opened on November
    22, 1999 and closed on July 17, 2000.[^59] Applications could be
    submitted during this filing window for (1) amendments (other than
    channel changes) to pending applications for new full-service NTSC
    television stations on Channel 2-59, (2) petitions for rule making
    seeking a new channel below Channel 60 for those applicants with
    pending applications for new full-service NTSC television stations
    on Channels 60-69, (3) petitions for rule making seeking a new
    channel below channel 60 for those applicants with pending
    applications for new full-service NTSC television stations on
    Channels 2-59 at locations inside of the "TV Freeze Areas" and (4)
    amendments to pending rule making petitions to amend the TV Table of
    Allotments to add NTSC television allotments.[^60]

23. There are pending requests for approximately 57 new NTSC stations in
    this band, either with applications or allotment petitions
    originally filed during the filing windows established by the
    Commission. Some of the requests have been pending on these channels
    since they were filed, while others were amended to specify a
    channel in this band under procedures announced in Public Notice DA
    99-2605. Previously, those new station proposals had been for
    stations on Channels 2 through 59 at locations where they would have
    conflicted with one or more DTV allotments or for use of TV Channels
    60 through 69. The Commission recognized that those persons with
    pending applications and/or petitions for new full-service NTSC
    television stations on those channels had already invested time,
    money and effort into their applications and petitions.[^61]
    Therefore, the Commission stated that it would not summarily
    terminate the pending applications and petitions, and it would, at a
    later date, provide applicants and petitioners an opportunity to
    amend their applications and petitions, if possible, to a channel
    below Channel 60.[^62]

24. We recognize that continuing to process these applications could
    result in greater incumbency on the 698-746 MHz band, which may make
    new service operations more difficult. This band was originally
    intended to remain principally a television band until the end of
    the transition and we recognize that it may be inequitable not to
    process these applications, or a subset of them.[^63] In addition,
    given the significant number of analog and DTV incumbents that
    already exist on this band, the impact on the provision of new
    services may be marginal. Therefore, while we do not direct the Mass
    Media Bureau to suspend processing of applications (with the
    exception of stations on Channel 59) for new analog stations, we
    seek comment on our ultimate treatment of the remaining pending
    applications. For example, we seek comment on whether there are
    stronger equities for continuing to process any particular
    subcategory of these pending applications.[^64] In addition, if such
    applications are granted, we seek comment on whether we could
    require these stations to transition to available frequencies below
    698 MHz by a date certain, *i.e.*, 2006, to ensure that these
    stations do not encumber the provision of new services. We
    particularly seek comment on whether such a requirement would be
    consistent with our statutory requirements in Section 309(j)(14) of
    the Communications Act.[^65] We also seek comment on whether these
    applicants (or a particular subset thereof) should be allowed to
    amend their pending applications through a channel allotment rule
    making petition to specify a new digital channel in the core that
    may become available later. With regard to applications pending for
    stations on Channel 59, we believe that granting more analog station
    licenses could impact the licensing of new services in the Upper 700
    MHz Band due to adjacent channel interference problems.[^66]
    Therefore, for the pendency of this rulemaking proceeding, we direct
    the Mass Media Bureau to suspend processing of applications and
    channel allotment petitions for new analog stations on Channel 59,
    but to allow limited amendments to specify another channel, if
    available.

##### Digital Stations

25. Because the Commission was unable to accommodate a second digital
    channel for all broadcasters within the "core" broadcast spectrum,
    there are a substantial number of digital channels on Channels 52-59
    as well. While the planning for the DTV Table of Allotments sought
    to minimize use of out-of-core channels, it was necessary to make
    allotments outside this range, particularly in the most congested
    areas of the country. Thus, there are 165 DTV assignments on
    Channels 52-59 (includes licenses, construction permits, and pending
    applications). Also pending, are four DTV allotment petitions filed
    by entities that originally proposed NTSC operations.

26. While there are roughly the same number of analog stations on
    Channels 52-59 as there are on Channels 60-69, there are
    significantly more digital television incumbents. In particular,
    there are only 20 digital assignments[^67] on Channels 60-69
    compared to the 165 assignments on Channels 52-59 and this number
    may increase. As a result, it will be far more difficult for new
    services to operate on this band, particularly in major metropolitan
    markets, prior to the end of the transition. In the recently adopted
    *DTV Periodic Review Order* in the first DTV periodic review, the
    Commission took steps to try and facilitate the transition so that
    these incumbents can be relocated.[^68] Specifically, the Commission
    adopted a requirement for broadcasters with both their analog and
    digital assignments within the "core" to declare the channels they
    plan to ultimately use after the transition.[^69] This will more
    readily enable the Commission to identify in-core channels for the
    out-of-core digital assignments currently in Channels 52-69 so that
    the Commission can clear this spectrum.

#####  Low Power Stations 

27. There are currently 835 licenses and 244 construction permits for
    low power television operations on Channels 52-59. In addition,
    there are 607 applications pending for new low power stations. Many
    of these pending applications involve requests for replacement
    channels by low power stations displaced by DTV stations or seeking
    to vacate the use of TV Channels 60-69 (746-806 MHz). Section 3004
    of the BBA 97 states that anyone holding a television broadcast
    license in the 746-806 MHz band "may not operate at that frequency
    after the date on which the digital television transition period
    terminates, as determined by the Commission."[^70] The Conference
    Report confirms the plain language of the statute: "The conferees
    recognize that in clearing this band, the Commission will displace
    not only full-power licensees but also secondary broadcast services,
    including low-power licensees and television translator
    licensees."[^71] In our reallocation proceeding for Channels 60-69,
    we found that this provision leaves us no latitude in clearing LPTV
    and TV translator stations from the band at the end of the DTV
    transition period.[^72] Section 3004 of the BBA 97 requires the
    Commission to "seek to assure" that qualifying LPTV stations are
    assigned a frequency below 746 MHz (TV Channel 60) to permit their
    continued operation.[^73]

28. Throughout the DTV and related proceedings*,* we have recognized
    that the DTV transition and the reallocation of spectrum to other
    services will have a significant impact on LPTV and TV translators.
    Further, we have recognized that LPTV operators offer important
    services to specialized and minority audiences, foreign language
    communities, and rural areas. In this regard, we adopted a number of
    rule changes in the *DTV Proceeding* to mitigate the impact on these
    stations.[^74] These rule changes included allowing LPTV stations
    displaced by new DTV stations to apply for suitable replacement
    channels; considering such applications on a first-come,
    first-served basis without subjecting them to competing
    applications; and technical rule changes to provide additional
    operating flexibility for low power stations.[^75] We also stated
    that any industry negotiation and coordination efforts must be open
    to all parties, including LPTV stations.[^76] While we are committed
    in this proceeding to take reasonable additional steps to reduce the
    impact on such operations, we are obligated to facilitate the DTV
    transition and to reallocate this spectrum as directed under the
    BBA 97. We seek comment on whether there are additional measures we
    should consider for LPTV in the 698-746 MHz band.

+-----+--------+-------------+---------------+----------+------------+
| S   |        |             |               |          |            |
| umm |        |             |               |          |            |
| ary |        |             |               |          |            |
| of  |        |             |               |          |            |
| Ch  |        |             |               |          |            |
| ann |        |             |               |          |            |
| els |        |             |               |          |            |
| 52  |        |             |               |          |            |
| -59 |        |             |               |          |            |
| I   |        |             |               |          |            |
| ncu |        |             |               |          |            |
| mbe |        |             |               |          |            |
| nts |        |             |               |          |            |
+-----+--------+-------------+---------------+----------+------------+
|     | Li     | C           | Applications  | Total    | New[^77]   |
|     | censes | onstruction | & Allotment   |          |            |
|     |        |             | Petitions     |          |            |
|     |        | Permits     |               |          |            |
+-----+--------+-------------+---------------+----------+------------+
| N   | 89     | 12          | 57            | 158      | Not        |
| TSC |        |             |               |          | Permitted  |
+-----+--------+-------------+---------------+----------+------------+
| DTV | 17     | 95          | 53            | 165      | Not        |
|     |        |             |               |          | Permitted  |
+-----+--------+-------------+---------------+----------+------------+
| L   | 835    | 244         | 607           | 1,686    | Permitted  |
| PTV |        |             |               |          |            |
+-----+--------+-------------+---------------+----------+------------+

#### Interference Protection for Television Services

29. In the *DTV Proceeding*, we stated that all existing analog TV and
    new DTV stations in the 698-746 MHz band would be fully protected
    during the DTV transition period.[^78] Thus, it will be necessary
    for licensees in the reallocated spectrum to protect both analog TV
    and DTV stations in the 698-746 MHz band from interference. If any
    additional NTSC licenses or construction permits or DTV full service
    allotments are made as a result of pending petitions, they would be
    afforded full protection during the DTV transition period.

##### Protection of Analog Stations

30. For the 746-806 MHz (Channels 60-69) band, we adopted a methodology
    that specifies minimum separation distances based on the various
    heights and powers of land mobile stations to prevent harmful
    interference to incumbent analog television operations from new
    service providers. This methodology has been successfully used in
    existing land mobile-broadcasting sharing arrangements in the
    470-512 MHz band. We used a 40 dB desired-to-undesired (D/U) signal
    ratio for calculating the co-channel geographic separation
    requirements.[^79] We found this to be a reasonable value that will
    provide sufficient protection for TV stations, as prescribed by the
    BBA 97.[^80] Co-channel land mobile base station transmitters will
    be limited to a maximum signal strength at the assumed TV Grade B
    contour that is 40 dB below the 64 dBu Grade B contour signal
    strength value, or 24 dBu.[^81] We adopted a 0 dB D/U signal ratio
    for adjacent channel operations*.*[^82] Adjacent channel land mobile
    transmitters are thus limited to a maximum signal which can equal
    the TV Grade B signal of 64 dBu at the TV station assumed Grade B
    contour of 88.5 km (55 miles). A typical TV receiver's adjacent
    channel rejection is at least 10-20 dB, which will further safeguard
    TV from land mobile interference. The analog TV protections adopted
    in the 746-806 MHz reallocation proceeding were based on the need to
    balance protection for existing broadcasting services, while making
    this spectrum viable for new services, including public safety. We
    seek comment on whether we should employ the same method for
    protecting analog TV stations in the 698-746 MHz band.

##### Protection of Digital Stations

31. In our public safety proceeding, we determined that the same signal
    strength limits for land mobile operation criteria used for
    protection of analog stations, *i.e.*, 24 dBμ co-channel and 64 dBμ
    adjacent channel, should also apply for digital stations.[^83] These
    field strength values correspond to co-channel and adjacent channel
    protection ratios for a DTV station at its 41 dBμ field strength
    service contour of 17 dB and - 23 dB, respectively.[^84] We note
    that these determinations are consistent with the *DTV Sixth Report
    and Order*.[^85] There, the Commission specified a minimum
    geographic separation of 250 km (155 miles) for co-channel
    operations between DTV stations and the city-center in the areas
    where there are existing land mobile operations.[^86] Section
    90.305(a) of our rules provides that full power land mobile base
    stations can be located up to 80.5 km (50 miles) from the
    city-center of one of the specified cities.[^87] Consequently, under
    the geographic separation standards adopted in the *DTV Sixth Report
    and Order*, a land mobile base station could choose to locate its
    station as close as 169.5 km (250 km - 80.5 km), or 105 miles to a
    neighboring DTV station. At this distance, a typical land mobile
    base station would produce an interfering signal at the DTV
    station's 88.5 km (55 miles) equivalent Grade B contour
    corresponding to the 17 dB D/U protection ratio specified in the
    *Public Safety Service Rule Order* to a DTV receiver. Thus, our
    decision to require land mobile systems to provide signal ratios for
    DTV stations which will afford approximately the same separation
    distance as we did for analog TV stations, was considered to
    represent a reasonable balance between the needs of both DTV
    stations and new services.

32. With regard to this new allocation of the 698-746 MHz band, we seek
    comment on whether we should adopt the same criteria for protection
    of DTV stations as we use for protection of analog stations. We are
    particularly interested in comments addressing the provisions for
    transmissions that may have the characteristics of a wide band-noise
    like emission. As demonstrated by the table in Section
    73.623(c)(3)(ii), DTV receivers treat co-channel DTV signals as an
    increase in the noise floor of the desired signal. This increase in
    noise floor is proportional to the power received from the undesired
    station. Therefore, in order to maintain the minimum necessary
    signal-to-noise (S/N) ratio of 15.19 dB, the desired signal level
    must be increased. Section 73.623(c)(2) of the rules sets forth a
    value of 15 dB for co-channel interference for DTV into DTV which
    are only valid at receiving locations where the S/N ratio for the
    desired DTV signal is 28 dB or greater.[^88] At the edge of the DTV
    noise-limited service area, where the S/N ratio is 16 dB, the value
    of D/U is 23 dB for interference protection from another DTV
    station. New land mobile systems operating in this band employing
    wide band noise like signals may need to provide DTV stations the
    same increases in protection as indicated in Section
    73.623(c)(3)(ii) of the rules.[^89]

33. Since we do not know the characteristics (bandwidth and power
    spectrum shape) of the co-channel threat to DTV in the re-allocated
    Channels 52-59, we seek comment on whether digital, wide-band
    emissions from these services in this band could cause interference
    to possible co-channel DTV operations, and may require the
    imposition of more restrictive criteria than those provided for
    under Section 90.545 of the Commission's rules. In particular, we
    seek comment on the adequacy of 17 dB for co-channel protection of
    DTV from wide band transmissions or whether we should consider more
    conservative protection levels.

#### Coordination with Canada and Mexico

34. The United States has bilateral agreements with both Canada and
    Mexico setting forth allotment and assignment plans for TV broadcast
    stations covering the 698-746 MHz band (Channels 52-59). While the
    U.S. has identified this band for reallocation to new services,
    neither Canada nor Mexico has done so to date.[^90] Pursuant to
    these agreements, the U.S. must protect the signals of Canadian and
    Mexican TV broadcast stations located in the border areas, and such
    operations will therefore affect U.S. non-broadcast use and services
    in this band. Accordingly, we tentatively conclude that licenses
    issued for this band will be subject to whatever future agreements
    the United States develops with these two countries. We further
    tentatively conclude that, until such time as existing agreements
    are replaced or modified to reflect the new uses, licenses in this
    band will be subject to existing agreements and the condition that
    harmful interference not be caused to, and must be accepted from, TV
    operations originating in Canada and Mexico. We seek comment on our
    tentative conclusions.

## Service Rules

35. One of our primary goals in this proceeding is to establish service
    rules that will promote innovative services and encourage the
    flexible and efficient use of this spectrum.[^91] In recent years
    the Commission has implemented our statutory directives under
    Section 309(j) of the Communications Act by addressing the growing
    complexities of spectrum management using approaches consistent with
    general market-based principles. For example, in the Upper 700 MHz
    proceeding, we were guided by our conclusion in our *Spectrum
    Reallocation Policy Statement* that a flexible, market-based
    approach is the most appropriate method for establishing service
    rules for this band.[^92] Similarly, in our recent *Secondary
    Markets Policy Statement*, we stated that for competition to bring
    consumers the highest valued services in the most efficient manner,
    competing users of spectrum need flexibility to respond to market
    forces and demand.[^93] Consistent with the principles underlying
    the *Spectrum Reallocation Policy Statement* and the *Secondary
    Markets Policy Statement*, we tentatively conclude that our service
    rules for this band should implement flexible use for the full range
    of proposed allocated services, consistent with necessary
    interference requirements.

36. In seeking to achieve the above objectives, we recognize that our
    service rules must also take into account the presence of incumbent
    broadcasters on the Lower 700 MHz Band and the processes we have
    established in our *DTV proceeding* for relocating incumbent
    broadcasters into the DTV core spectrum. The 698-746 MHz band is
    currently used as Channels 52-59 by a significant number of existing
    full service analog stations, LPTV stations, TV translator and
    booster stations, and by new DTV stations. These incumbent
    broadcasters, both analog and digital, may continue to operate on
    channel allotments in this band until at least December 31,
    2006,[^94] or the relevant statutory conditions are met that allow
    incumbents to be relocated to channels in the DTV core spectrum of
    Channels 2-51.[^95] Therefore, the service rules for any new
    services on the Lower 700 MHz Band must provide for the protection
    of incumbent television stations during the DTV transition
    period.[^96]

37. We also seek to establish rules that will facilitate, rather than
    hinder, the clearing of incumbent broadcasters from this spectrum in
    a manner consistent with our policy goal of locating all television
    channels in the DTV core spectrum, thus making the band available
    for a wide range of advanced services. In the Upper 700 MHz
    proceeding, we considered the use of several voluntary "band
    clearing" mechanisms, such as the use of secondary auctions to
    determine the price that would be paid by Upper 700 MHz licensees to
    TV incumbents who agreed to clear their channels in that band.[^97]
    While we recognize that different circumstances apply to the Lower
    700 MHz Band, we are seeking comment in this Notice on potential
    mechanisms, with the focus on voluntary mechanisms, to encourage the
    smooth transition from incumbent broadcast services to new services
    due to the particular circumstances relating to the Lower 700 MHz
    Band.[^98]

38. In this section, we request comment on a number of issues, such as
    the appropriate relationship between potential uses of the spectrum,
    the optimal size of the spectrum blocks available for auction, the
    appropriate size of geographic service areas, any channelization
    plan, and other characteristics that we should use to define
    licenses in the Lower 700 MHz Band. Comments should address whether
    particular characteristics would encourage a variety of technologies
    and entrants, foster overall licensee flexibility, provide licensees
    with the maximum number of options to provide service, and promote
    the other objectives of the Communications Act.[^99] In addition, if
    we were to adopt allocations other than those proposed in this
    Notice, we seek comment on whether our service rules should provide
    for all allocated services including, for example, satellite
    service.[^100]

39. While we seek comment from the public in general concerning the
    matters set forth in this Notice, we specifically seek comment from
    Indian Tribal governments on the matters contained herein. As
    detailed in the *Tribal Government Policy Statement*, adopted in
    June 2000, the Commission is committed to (1) working with Indian
    tribes on a government-to-government basis to ensure that Indian
    tribes have adequate access to communications services, and (2)
    consulting with Tribal governments prior to implementing any
    regulatory action or policy that will significantly affect Tribal
    governments, their land, and resources.[^101] We believe the matters
    set forth in this Notice have the potential to foster the
    development and, ultimately, the deployment of new technologies and
    services to many communities, including tribal communities. In
    keeping with the principles of the *Tribal Government Policy
    Statement*, we welcome the opportunity to consult with Tribal
    governments on the issues raised by this Notice and we seek comment
    both from Tribal governments and other interested parties on the
    potential for the spectrum considerations set forth herein to serve
    the communications needs of tribal communities.

### Scope of Licenses

#### Permissible Licensed Services

40. In November 1999, this Commission issued its *Spectrum Reallocation
    Policy Statement* that sets forth principles to guide our spectrum
    management activities.[^102] We noted that demand has increased
    dramatically as a result of explosive growth in wireless
    communications, and that the Commission must focus on allowing
    markets to become more efficient in increasing the amount of
    spectrum available for use.[^103] We observed that flexibility could
    be permitted through the use of relaxed service rules, which would
    allow licensees greater freedom in determining the specific services
    to be offered.[^104] We further stated that the 698-746 MHz spectrum
    could be used to make a variety of technologies and services
    available to the American public.[^105] We also note that the BBA 97
    grants the Commission the authority to allocate spectrum for
    flexible use, provided that the Commission makes certain
    findings.[^106] In providing for competitive bidding, we shall seek
    to promote the development and rapid deployment of new technologies
    without delay, encourage the efficient and effective use of the
    spectrum, promote competition, and ensure that new and innovative
    technologies are readily accessible.[^107] In this Notice, we seek
    comment on the scope of services that should be licensed under the
    service rules that we adopt for the Lower 700 MHz Band. Comments
    that are submitted in response to this Notice should address whether
    our service rules would encourage the active and efficient use of
    the Lower 700 MHz Band and enable new technologies and services.

41. In this Notice, we emphasize our continued interest in the
    development of a variety of mechanisms to make spectrum markets more
    flexible and efficient in the choice of service to be offered by
    licensees and in the applicable service rules. We seek comment on
    whether to reallocate this spectrum in the 698-746 MHz band to
    permit fixed, mobile, and broadcast services on the 698-746 MHz
    band. We seek to develop service rules that are not based on a
    Commission prediction of how these bands will ultimately be used,
    but instead enables us to establish maximum practicable flexibility.
    Accordingly, we request comment on how innovative service rules and
    assignment mechanisms can maximize the use of this spectrum. We also
    seek comment on how new technologies may affect the extent to which
    service rules effectively provide for flexible, efficient, and
    intensive use of the spectrum.[^108]

42. In the *Upper 700 MHz First Report and Order*, we decided not to
    adopt service rules that would permit both full power television and
    wireless services to operate on the Upper 700 MHz Band.[^109] We
    found that the contrasting technical characteristics of full power
    television broadcasting, using power levels authorized by Part
    73,[^110] and wireless services effectively preclude the development
    of interference rules that would enable the practicable provision of
    both sets of services on the spectrum under consideration in that
    proceeding.[^111] We determined that if there is a disparity between
    the two services' characteristic power levels and between their
    transmitter heights, these factors would have an impact on the
    ability of either of the services to provide adequate service.[^112]
    We further found that any substantial disproportion between the
    power levels of services sharing a spectrum band creates much
    greater interference difficulties for the lower-power service than
    when sharing or adjacent-band services operate at comparable power
    levels.[^113] As a result, we adopted service rules primarily
    directed toward fulfilling the need for a variety of new wireless
    services. The service rules we adopted provided flexibility to
    licensees to make determinations respecting the services provided
    and technologies to be used, including the provision of new
    broadcast-type service on the band, provided those services comply
    with the applicable technical rules.

43. We solicit comment in this Notice on the extent to which our service
    rules can permit both new full power broadcasting, in particular DTV
    and other digital broadcast operations, and wireless services to
    operate on the Lower 700 MHz Band. Commenters should consider the
    interference concerns that we addressed in the Upper 700 MHz
    proceeding, as well as any other relevant factors. We seek comment
    on whether the possible technology or technologies used to provide
    digital broadcast services, such as those using a cellular
    architecture, would be compatible with wireless services operating
    on the spectrum. In that regard, we seek comment on whether a 50 kW
    limit for full power broadcasting would permit both broadcasting
    operations and wireless services to use this spectrum, yet still
    allow flexible use of the spectrum consistent with technical and
    interference requirements. We also request comment on whether
    service rules that allow licensing of full power broadcasting on the
    band would affect the efficient use of the spectrum. To what extent
    would efforts to manage interference between such dissimilar
    transmissions as full power television and wireless services
    increase the possibility of substantial spectrum inefficiencies in
    the band? We also seek comment on whether the licensing of full
    power broadcasters on this band would impose disproportionate,
    offsetting burdens on wireless services, both fixed and mobile, and
    whether full power broadcasting would have a substantial impact on
    the technical effectiveness and economic practicability of wireless
    service providers operating on this band. In addition, we seek
    comment on whether any differences between the Part 27 and Part 73
    rules that may affect our determination as to whether the service
    rules for the 698-746 MHz band should permit both full power
    television and wireless providers to operate on this band. We note
    that Sections 309(j)(14)(C) and (D) of the Act, which apply to all
    spectrum reclaimed as part of the DTV transition, prevents the
    Commission from declaring any party ineligible, for "any license
    that may be used for any digital television service" in certain
    cities, on the basis of our duopoly rule and newspaper
    cross-ownership rule.[^114] We seek comment on the impact of these
    provisions on our determination of whether and how our service rules
    can and should permit broadcast and wireless providers to operate on
    the Lower 700 MHz Band.

44. In the *Upper 700 MHz First Report and Order*, we adopted service
    rules that addressed the need for a range of wireless applications
    and recast the Part 27 rules to reflect their revised scope. The
    Commission decided to allow any new broadcast-type services
    consistent with the Table of Allocations, provided that such
    services satisfied our technical and service rules.[^115] Such
    services, to the extent they may be offered, would not necessarily
    resemble current radio and television broadcast services subject to
    Part 73 and 74 of our rules, but could still meet the statutory
    definition of "broadcasting."[^116] Because such new broadcast-type
    services would necessarily use lower power levels than even existing
    low-power television service, and may differ significantly in both
    technical and public policy respects from full power broadcasting,
    we did not seek to anticipate or develop a regulatory framework
    beyond the technical and operational rules that were adopted in the
    Upper 700 MHz proceeding or that already applied to broadcast
    services in general. However, we did remind potential applicants for
    such new broadcast-type services that compliance with Part 27
    technical standards did not alter the underlying nature of such
    services, or the licensees' related regulatory and statutory
    obligations.[^117] We seek comment on whether to license new
    broadcast-type service on the Lower 700 MHz Band.

45. In this Notice, we do not make a specific proposal concerning an
    allocation in the Lower 700 MHz Band for satellite service, but
    request comment on the matter. In the event that an allocation is
    made in this band for satellite service, we seek comment on whether
    auction winners should be afforded the flexibility to deploy
    satellite services, either themselves or by agreement with a
    satellite operator, within their licenses' geographic area, provided
    that such operations do not cause unacceptable interference to
    services operating in adjacent geographic areas.[^118] Further, if
    an allocation is made in this band for satellite service, we seek
    comment on the service rules that would apply to such service.

#### Size of Spectrum Blocks for Each License

46. We seek comment on the appropriate amount of spectrum for each
    license in the 698-746 MHz band. Should we license, for example, the
    spectrum as a single 48 megahertz block or should it be licensed as
    two or more smaller blocks?

47. We seek comment first on whether the utility, and therefore value,
    of the spectrum would be enhanced by providing for the auction of a
    single block. A spectrum block of such size would seem to minimize
    the potential for third-party interference and thereby minimize the
    needed scope of our interference rules. In this regard, given the
    difficult incumbency issues associated with this band, we seek
    comment on whether economics associated with being a licensee of a
    large block of spectrum would make it easier for the licensee to
    develop services around existing incumbents, clear the band of
    incumbents, and generally deal with interference issues in the band.
    We also request comment on whether a single licensee, as opposed to
    numerous licensees, would be more likely to successfully negotiate
    the clearing of incumbent broadcasters from the spectrum. Would it
    be in the public interest to leave the determination of the internal
    framework of the 698-746 MHz band to one licensee? Comments should
    address both the possible and expected scope of use by a single 48
    megahertz licensee. Commenters should identify the range of services
    that could be offered if we employ a license of this size. In
    addition, we seek comment on what spectrum block size would best
    facilitate the "reasonable and timely"[^119] deployment of broadband
    applications which may be spectrum-intensive.

48. We seek comment, alternatively, on whether we should establish two
    or more blocks to license this spectrum, and what should be their
    size. We seek comment, for instance, on whether the spectrum should
    be licensed in two blocks of 24 megahertz each. Commenters also
    should address whether a block of 12 megahertz or more is required
    to provide access to a wide range of advanced telecommunications
    services. In addition, they should explain whether a block of six
    megahertz is necessary to enable wireless telecommunications
    services, or a viable digital television service. Licensing based on
    smaller spectrum blocks may be preferable for rural and small
    carriers. Parties who prefer smaller spectrum block sizes to larger
    blocks should identify the advantages that licensing based on
    smaller spectrum blocks would have on potential auction
    participants. If commenters support licensing based on spectrum
    blocks other than those we discuss herein, they should state why
    other size spectrum blocks are more appropriate. The comments also
    should address the impact that the size of the spectrum blocks will
    have on the services that may be provided on this band, especially
    given the difficult incumbency issues.

49. Comments are invited on whether we should adopt a licensing plan for
    this band that provides for different sized blocks. The comments
    should address whether this approach could improve spectrum
    efficiency, offer greater flexibility in the use of spectrum,
    increase the diversity of services offered to consumers, and
    facilitate the development of advanced telecommunications services.

50. We also seek comment generally on the minimum size of spectrum
    blocks needed to enable competitive commercial services. In this
    regard, we note that our simultaneous multiple round and
    combinatorial (or "package") auction design generally offers bidders
    substantial flexibility to aggregate blocks of spectrum for their
    particular uses.[^120] We seek comment on whether in light of the
    auction designs that may be available, we should define spectrum
    block sizes that would require bidders to aggregate spectrum at
    auction to achieve the most efficient result. Such an approach may
    provide bidders with greater flexibility to implement their plans,
    as compared with the Commission's traditional approach toward
    defining spectrum blocks, which attempts to define optimal block
    size and allows adjustments through secondary market mechanisms,
    such as disaggregation, if such fine-tuning is necessary.

51. Commenters should consider the relationship between the amount of
    spectrum per license and the ability to protect existing broadcast
    operations in this band during the transition to DTV. The comments
    should address how the size of the spectrum blocks will affect the
    licensees' ability to deploy new, innovative services and the impact
    that the size of the spectrum blocks may have on the ability of
    licensees to compete with existing fixed and mobile service
    providers. The comments also should consider the need to preserve
    licensee flexibility in technical and service application choices.

52. In light of the presence of incumbent broadcasters on this band, we
    seek comment on whether spectrum blocks of six megahertz could be
    aligned in the 698-746 MHz band plan to correspond with individual
    six megahertz television channels. We request comment on whether our
    adoption of six megahertz blocks as an appropriately-sized spectrum
    block would facilitate clearing of the band by incumbent
    broadcasters or otherwise enhance the value of the spectrum. In
    addition, in this Notice, we seek comment on the possibility of a
    guard band or some other form of protection for services provided
    below this 698-746 MHz band, on television Channel 51. We request
    comments on the impact of the adoption of service rules in this
    proceeding on the incumbent use of Channel 51.

#### Size of Service Areas for Geographic-Area Licensing

53. We tentatively conclude that we should adopt a geographic area
    licensing approach to assign licenses in the 698-746 MHz band. In
    contrast to station-defined licensing (*i.e*., site-by-site
    licensing), our experience has been that geographic area licensing
    affords licensees substantial flexibility to respond to market
    demand and may result in significant improvements in spectrum
    utilization. Geographic licensing provides licensees with
    flexibility to dynamically adjust spectrum usage depending upon
    market conditions, and thus maximize the use of spectrum in areas of
    highest demand. These same adjustments may be significantly more
    difficult under a site-by-site licensing regime where prior
    Commission approval is needed before a licensee can modify its
    service and coverage. Geographic area licensing schemes have been
    employed in a number of services with which licensees in the 698-746
    MHz band may potentially compete.[^121] In addition, consistent with
    Part 27, we adopted a geographic licensing approach for the 746-764
    and 776-794 MHz bands in the Upper 700 MHz proceeding.

54. Assuming that we utilize a geographic area approach for the 698-746
    MHz band, we seek comment on the appropriate size of service areas
    on which licenses should be based. Should we license, for example,
    all or part of the 48 megahertz of reallocated spectrum on a
    nationwide basis, or would smaller geographic license sizes be more
    appropriate for this spectrum?

55. We seek comment, first, on a possible nationwide license. Nationwide
    licenses have the advantage of providing carriers with more
    flexibility in the buildout of their services, as well as in
    coordinating with incumbents. In this regard, we seek comment on
    whether any problems associated with the operation of the many
    incumbent TV stations in this band may be better addressed by
    licensing this spectrum in larger areas where there may be less of a
    need for complicated protection agreements. Does the presence of a
    large number of broadcasters in the 698-746 MHz band make nationwide
    licenses more desirable than regional or other license sizes? We
    also seek comment on the extent to which nationwide licenses
    maximize the opportunity to provide the widest array of services and
    business plans. Do nationwide geographic licensing areas, especially
    in light of our proposal to permit partitioning[^122] and our
    seeking comment about spectrum leasing,[^123] provide the necessary
    incentives for fostering the growth of existing technologies while
    encouraging the development of new applications? Would the adoption
    of nationwide geographic licensing areas provide potential savings
    to the time and cost of developing applications and manufacturing
    equipment to operate in the 698-746 MHz band?

56. In the Upper 700 MHz proceeding, the Commission chose six large,
    regional Economic Area Groupings ("EAGs") for the 747-762 MHz and
    777-792 MHz bands.[^124] The use of regional licenses may permit
    licensees to take advantage of the opportunities afforded by
    licensing spectrum on a wide regional basis. Accordingly, we request
    comments that address the possibility of issuing large, regional
    licenses in the 698-746 MHz band. Are the six EAGs the appropriate
    license size for this reallocated band?[^125] Are EAGs (or other
    regional licenses) preferable to nationwide licenses because they
    may more easily allow partitioning to serve the needs of smaller
    users and regional communities? If we adopt six regional EAGs, we
    seek comment on what would be the optimal spectrum block size.
    Commenters should address whether blocks of 48 megahertz, 24
    megahertz, or smaller sizes would be appropriate for regional EAGs.
    We note that our simultaneous multiple round and combinatorial or
    package bidding auction designs generally offer bidders flexibility
    to aggregate multiple licenses to cover larger geographic areas for
    their particular uses. Would the opportunity to aggregate a small
    number of regional licenses be sufficient for those seeking to build
    a nationwide footprint? We invite comment on how to define an
    appropriate geographic service area in light of the various types of
    bidding procedures that the Wireless Telecommunications Bureau now
    has at its disposal.

57. Commenters should also address whether smaller geographic license
    sizes are appropriate for all or a subset of this spectrum. For
    example, the Commission has licensed spectrum using smaller
    territories defined by the 306 Metropolitan Statistical Areas
    ("MSAs") and 428 Rural Statistical Areas ("RSAs"), and the 172 EAs
    and three EA-like areas. When combined, the MSA and RSA service
    areas create the 734 geographic areas that were originally used to
    license cellular service.[^126] Rural and smaller carriers may
    prefer licensing based on small geographic areas.[^127] If so, which
    license sizes are preferable to the larger, regional license sizes?
    Should we license part of the 48 megahertz of spectrum on a large
    regional (or national) basis and the remaining part of the band in
    geographic areas of a medium or smaller scale? If commenters support
    licensing based on service territories other than those discussed
    above, they should discuss why other types of service areas are more
    appropriate. In addition, we seek comment on the impact that the
    size of the service area will have on the participation in the
    auction by parties that may be eligible for the Commission's
    designated entities provisions.[^128]

58. We also seek comment on whether we should license the Gulf of Mexico
    as part of larger service areas, as we did for the Upper 700 MHz
    Band, or whether we should separately license a service area or
    service areas to cover the Gulf of Mexico. Commenters who advocate a
    separate service area or areas to cover the Gulf of Mexico should
    discuss what boundaries should be used and whether special
    interference protection criteria or performance requirements are
    necessary due to the unique radio propagation characteristics and
    antenna siting challenges that exist for Gulf licensees.

59. We seek comment on the possible impact that broadcast use of this
    spectrum would have on the determination of the appropriate
    geographic service area. We seek comment elsewhere in this Notice on
    service rules that may permit the 698-746 MHz band to be used by
    both full power broadcasting and wireless services.[^129] Parties
    who believe that such combined use should be permitted should first
    comment on the various choices we are considering in this proceeding
    for Part 27 geographic license areas and spectrum blocks and the
    impact that this scheme would have on the concept of a station's
    serving the needs and interests of its community of license pursuant
    to Part 73.[^130] Those parties should also comment on any relation
    between our geographic service area and spectrum block decisions and
    the combined use of these bands by CMRS and full power broadcast
    services, which operate using significantly different power levels.
    We seek comment on how any decisions regarding spectrum
    channelization and power levels, if combined use were to be
    permitted, would affect the appropriate size of geographic licenses,
    in contrast to limiting or precluding broadcast use of the spectrum.
    We also seek comment on alternatives that would rely on licensing by
    geographic area, by community of license, or by some combination of
    these approaches.

#### Paired or Unpaired Spectrum Bands

60. In the Upper 700 MHz proceeding, we determined that spectrum blocks
    be established and licenses be assigned on the basis of paired
    bands.[^131] We configured the 30 megahertz of spectrum in two
    paired bands: a 10 megahertz band, designated Block C, and a 20
    megahertz band, designated Block D. Each paired band constituted a
    spectrum block on which auction bids would be based in an EAG. Our
    decision to adopt this paired band architecture reflected an
    assessment that the most commonly-used transmission procedure for
    Personal Communications Services ("PCS"), cellular, and other
    established mobile and fixed wireless applications, Frequency
    Division Duplex ("FDD"), requires paired spectrum.[^132] As
    discussed below, on reconsideration in the Upper 700 MHz proceeding,
    we revised our rules to enable Time Division Duplex ("TDD") based
    technologies to use unpaired bands, or both bands.[^133]

61. If we decide that the spectrum in the 698-746 MHz band should be
    licensed in two or more blocks, should the spectrum be offered as
    contiguous or paired blocks and, if paired blocks, should the blocks
    be symmetric or asymmetric in size? We seek comment on the extent to
    which the spectrum should be paired or unpaired to enable viable
    commercial wireless services. Given bidders' opportunities to
    aggregate licenses under our simultaneous multiple round,
    combinatorial, and package auction designs, how would the adoption
    of either a paired or unpaired band structure impact the
    Commission's ability to achieve its spectrum management goals,
    including flexible and efficient spectrum use.[^134] We request
    comment on the degree to which paired or unpaired bands are suited
    to new technologies, particularly such technologies that would
    enhance the offering of advanced wireless telecommunications
    services. Comments should address the particular requirements of the
    various services and their technologies, including transmission
    procedures such as FDD or TDD, that would use this spectrum, and the
    impact on such services and technologies of our adopting either a
    paired or unpaired band architecture.

62. We seek comment on the extent to which the power limits that are to
    be established in this rulemaking should affect our adoption of a
    paired or unpaired band structure. In the Upper 700 MHz proceeding,
    we allowed 1000 watt effective radiated power ("ERP") base and fixed
    stations in both the lower and upper bands, and 30 watt ERP mobile
    and control station, as well as 3 Watts ERP portables, in both the
    upper and lower bands.[^135] We found that such power limits would
    enable both base and mobile transmitters on both the upper and lower
    bands, and thus permitted TDD-based technologies to use either the
    upper or lower bands, or both, as circumstances warrant. If we
    decide to adopt a paired band architecture for the 698-746 MHz band,
    should we enable the use of both base and mobile transmitters on
    both bands? Furthermore, should we use the same power limits as we
    adopted in the Upper 700 MHz proceeding, or should some other power
    limits be authorized instead? To what extent should we adopt power
    limits or out-of-band emission limits for the 698-746 MHz spectrum
    that are aimed at enabling TDD operations, or operations that are
    based on some other form of technology? Comments should address both
    the methodology to be used, *e.g.*, whether the power limits should
    be the same or different for the two bands, and the specific power
    levels to be adopted.

63. We request comment on the impact that our decisions on the size of
    spectrum blocks and of the service area should have on our decision
    on whether to adopt paired or unpaired spectrum bands. For example,
    would the adoption of smaller spectrum blocks be more or less
    appropriate in a paired band structure than in an unpaired band
    structure? Would a decision to license blocks that are large enough
    for full power broadcast service and to permit sharing of the
    spectrum by wireless and full power broadcast providers have an
    impact on our decision to license spectrum on a paired or unpaired
    basis?

64. We also solicit comment on whether and to what extent the use of
    paired or unpaired spectrum bands would accommodate entities seeking
    to negotiate voluntary transition agreements with incumbent
    television licensees that could enable the clearing of such
    incumbent licensees from the 698-746 MHz band. Comments should
    address whether such efforts to facilitate transition agreements are
    consistent with our objectives of seeking to promote the rapid
    development of new technologies and the efficient and effective use
    of the spectrum.[^136]

### Technical Rules

#### General Technical Rules

65. We seek comment on whether the general provisions of Part 27 of the
    rules should be applied to the 698-746 MHz band, and specifically on
    any rules that would be affected by our proposal to apply elements
    of the Part 27 framework, whether separately or in conjunction with
    Part 73 requirements, to full power broadcast services, or to any
    other parts of our rules. We solicit comment concerning the
    appropriate rules to adopt for co-channel interference control,
    out-of-band[^137] and spurious emission[^138] limits, and power
    limits and radiofrequency (RF) safety requirements. The comments
    also should address whether all of these technical rules would apply
    to all licensees in the 698-746 MHz band, including licensees who
    acquire their licenses through partitioning or disaggregation.

#### Co-Channel Interference Control

66. Historically, the Commission has issued rules governing the
    technical and operating parameters of radio transmitters in order to
    reduce to a pre-determined level the interference between licensees
    using the same spectrum assignment in adjacent geographical
    locations.[^139] This methodology of interference control generally
    is most successful where the type of service provided and technology
    used by geographically adjacent licensees are established by rule
    and reasonable assumptions can be made about the technical
    characteristics of receivers that will be used.

67. Recently, the Commission has established new broadband wireless
    services[^140] wherein licensees are authorized to utilize any
    technology satisfying basic technical rules[^141] to provide any
    type of fixed or mobile service. For these flexible use services,
    substantially different services and technologies could be utilized
    in close proximity by geographically adjacent licensees. The
    multiplicity of existing and future technologies and services that
    could be deployed side-by-side in a flexible use service may
    increase the possibility for interference, thus raising the question
    of whether it is practical to devise rules intended to limit
    interference in the traditional sense (*i.e.* to a pre-determined
    level) for all potential interference.[^142] This Notice seeks
    comment on a wide range of uses in the Allocation Table.
    Accordingly, we are potentially allowing a broad range of
    technologies and services for possible co-existence within this
    spectrum, and the nature of the services and technologies can affect
    the potential for interference between licensees using the same
    spectrum in adjacent service areas. We are particularly interested
    in receiving comments on potential interference issues that could
    arise in the event that we decide to reallocate the 698-746 MHz band
    for use by fixed, mobile, and broadcast services or any combination
    of these services.

68. The Commission has adopted rules employing one or the other of two
    methods for broadband fixed and mobile services in regard to
    addressing the issue of co-channel interference between adjacent
    systems. In the Cellular Radiotelephone Service, the Commission has
    mandated that adjacent users coordinate spectrum usage by facilities
    within 121 kilometers (75 miles) of each other and to resolve
    technical problems that may inhibit effective and efficient use of
    the spectrum.[^143] This method is a coordination requirement.[^144]
    In the Personal Communications Service and the Wireless
    Communications Service, the Commission has instead adopted rules
    requiring that the licensees limit the strength of their signals
    ("field strength") to some prescribed value at the boundary of their
    geographical license area.[^145] Provided that the specified field
    strength limit is met, licensees may unilaterally deploy facilities
    in the boundary area without coordinating with adjacent
    licensees.[^146] This latter method is the field strength limit.

69. In the Upper 700 MHz proceeding, the Commission adopted a field
    strength limit rather than a coordination requirement to control
    co-channel interference in the band.[^147] The Commission found that
    a coordination method could impose unnecessary coordination costs in
    the case of facilities that were unlikely to cause interference, and
    possibly could lead to anti-competitive activities.[^148] The
    Commission also determined that the field strength limit will apply
    to base and fixed stations,[^149] the maximum field strength
    permitted along the geographic area border will be 40 dBμV/m,[^150]
    and that issues of compliance will be determined by calculations
    using the TV broadcast field strength curves.[^151] The use of this
    procedure was found to potentially enable licensees to deploy their
    facilities effectively, while minimizing interference to co-channel
    licensees in adjacent areas.[^152] We seek comment on whether this
    universal field strength limit rule will in fact *minimize*
    interference between all adjacent systems using the same or
    overlapping spectrum regardless of what types of service,
    technologies, emission types or power levels are used.

70. We seek comment on whether we should adopt rules establishing a
    boundary field strength limit to control co-channel interference in
    the 698-746 MHz band. If we were to choose this method, what should
    be the field strength limit? Should it be 40 dBμV/m or some other
    value?[^153] We request comment on whether a field strength limit
    would reduce the need for coordination by giving licensees the
    ability unilaterally to deploy facilities in boundary areas as long
    as the limit is met. We also seek comment on whether a field
    strength limit by itself may provide insufficient assurance against
    interference among co-channel licensees. Even with a boundary limit,
    would some degree of coordination and joint planning between
    bordering licensees be needed to ensure efficient use across the
    boundary? To the extent such coordination between adjacent licensees
    is likely to be needed, to what extent can we rely on purely
    voluntary procedures to reach efficient results? Would any rules or
    guidelines be beneficial in facilitating such coordination? We also
    seek comment on whether we should adopt criteria to protect Lower
    700 MHz stations employing video broadcasting similar to the
    protection criteria that we establish herein to protect incumbent
    DTV stations.

71. We seek comment on whether we should adopt a coordination
    requirement instead of a field strength limit to control co-channel
    interference in this band. In the event we decide to use a
    coordination requirement, how far from the boundary should the
    coordination zone be located? Would a general coordination
    requirement minimize the potential for interference or impose
    unnecessary coordination for facilities with a low potential for
    interference under either approach?

72. Commenters should provide an analysis of the advantages and
    disadvantages of both approaches, or approaches that combine a
    boundary limit and coordination procedure. We seek comment, for
    example, on whether anti-competitive behavior could result from our
    adoption of either approach. Moreover, how do the two methodologies
    compare in terms of their effect on licensee costs? The comments
    should address these questions in the context of whether one method
    or the other would enable licensees to deploy their facilities
    effectively, while minimizing interference to co-channel licensees
    in adjacent geographic areas. We also seek comment on whether there
    are methods to control interference in the Lower 700 MHz Band that
    would be more effective than coordination or boundary field strength
    limits.

73. In the event that we adopt a field strength methodology, we seek
    comment on whether licensees in adjoining areas should be permitted
    to agree to alternative field strengths at their common border. If
    we were to agree to such a procedure, what would be the impact in
    terms of increased flexibility and harmful interference? We invite
    comment on this approach to control interference in the context of
    the 698-746 MHz band, both generally and if used in conjunction with
    field strength standards. Should we adopt a general coordination
    approach is adopted, comments are requested on whether specific
    aspects of procedures, such as those contained in Section 22.150 of
    the Commission's rules,[^154] should apply or, alternatively,
    whether a general requirement such as the cellular rule[^155] should
    apply.

74. Section 27.64 of the Commission's rules[^156] states generally that
    Part 27 stations operating in full accordance with applicable
    Commission rules and the terms and conditions of their
    authorizations are normally considered to be non-interfering, and
    provides for Commission action, after notice and hearing, to require
    modifications to eliminate significant interference. In view of the
    variety of services that might be provided by Part 27 licensees on
    this band, including broadcasting, we solicit comment on whether we
    should apply this rule for this spectrum. We also seek comment
    regarding whether interference protection can be achieved and
    whether Section 27.64 of our rules should be modified to direct
    adjacent service area licensees to cooperate to eliminate or
    ameliorate interference. This alternative would require each
    licensee ultimately to assume responsibility for protecting its own
    receiving system from interference from transmitters in adjoining
    areas that meet our standards.

75. We seek comment on what interference criteria should be established
    in the event we adopt service rules that permit full power
    broadcasting[^157] and wireless services to sharing the 698-746 MHz
    band. We also seek comment on whether we should adopt any protection
    of television service provisions addressed elsewhere in the Notice
    into the co-channel interference rule.

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

76. In many of our radio services, the Commission often requires that
    out-of-band emissions be limited to no more than 50 microWatts (50
    μW) of transmitter output power over a typical instrument
    measurement bandwidth.[^158] The rules that implement this
    requirement generally do so in the form of an attenuation
    requirement of 43 + 10 log P dB. In the Upper 700 MHz proceeding,
    the Commission adopted this general out-of-band emission limit to
    apply to equipment transmitting in the 747-762 and 777-792 MHz bands
    that were the subject of the service rules under
    consideration.[^159] However, we also adopted more strict limits for
    out-of-band emissions that fall within the Global Positioning
    Service ("GPS") band[^160] and within the 764-776 MHz and 794-806
    MHz public safety bands.[^161] We invite comment on what out-of-band
    emission standards should be established in our service rules for
    the Lower 700 MHz Band. We seek comment on whether we should adopt a
    rule applying our general out-of-band emission attenuation
    requirement of 43 + 10 log P dB to equipment used in the 698-746 MHz
    band. What are the potential costs and benefits of requiring greater
    or lesser attenuation of out-of-band emissions? We also request
    comment on any other emission limits that commenters believe to be
    appropriate. For example, should the limit specify a single
    out-of-band attenuation level or should it specify a power roll-off
    that increases attenuation as frequency separation from the channel
    boundary increases?

77. In the Upper 700 MHz proceeding we found that stricter attenuation
    requirements were required to adequately protect the public safety
    bands from interference.[^162] We adopted an attenuation requirement
    of 65 + 10 log P dB per 6.25 kHz for mobile and portable
    transmitters, and an attenuation requirement of 76 + 10 log P dB per
    6.25 kHz for base and fixed transmitters for out-of-band emissions
    that fall within the 764-776 MHz and 794-806 MHz public safety
    bands.[^163] In this Notice, we request comment on whether it is
    necessary to adopt a rule, applicable to equipment transmitting in
    the 698-746 MHz band, that provides more stringent attenuation
    requirements for out-of-band emissions that fall within the 764-776
    MHz and 794-806 MHz public safety bands. We seek comment on whether
    equipment transmitting in the upper portion of the 698-746 MHz
    commercial band poses a risk of interference to public safety
    operations that justifies adoption of these more stringent
    attenuation requirements. We also seek comment on what resolution
    bandwidth should be used for measurements to determine compliance
    with the out-of-band emission limits.

#### Power Limits and RF Safety

78. In the Upper 700 MHz proceeding, the Commission concluded that with
    regard to communications power requirements, equipment transmitting
    in the 747-762 MHz and 777-792 MHz bands will have characteristics
    similar to equipment used in other services in the sub-microwave UHF
    frequency bands. Accordingly, rules were adopted that provided a
    maximum power limit of 1000 Watts ERP for base and fixed stations,
    30 Watts ERP for vehicular mobile transmitters and 3 Watts ERP for
    hand held portable transmitters.[^164] We request comment on whether
    these limits are also appropriate for base, fixed, mobile and
    portable transmitters operating in the 698-746 MHz band, or whether
    some other limits should be adopted. As indicated above, we also
    seek comment on the use of up to 50 kW ERP for video broadcasting in
    this band.[^165]

79. The Commission considers RF safety procedures to be essential in
    protecting human beings from excessive exposure to RF energy.
    Accordingly, we propose to require that facilities and devices
    operating in the Lower 700 MHz Band be subject to the existing RF
    safety criteria and procedures applicable to facilities and devices
    having similar technical parameters and operating
    characteristics.[^166] We seek comment on this proposal.

### Licensing Rules

80. We seek comment below on the licensing rules for a full range of
    possible licensees, in accordance 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.[^167] We seek comment generally on whether
    licensees in the reallocated 698-746 MHz band should be governed by
    Part 27 of the Commission's rules. Part 27 was established to
    satisfy the requirement in Section 3001 of the Omnibus Consolidated
    Appropriations Act of 1997 to reallocate and assign the use of the
    frequencies at 2305-2320 MHz and 2345-2360 MHz. Part 27 was
    initially adopted to govern services offered on those bands, and
    accorded licensees the flexibility to provide any fixed, mobile or
    radiolocation service contained in the Table of Allocations in Part
    2 of the Commission's rules. The regulatory framework of Part 27
    includes, *inter alia*: (i) the limitation of eligibility
    requirements to foreign ownership restrictions set forth in Section
    310 of the Communications Act; (ii) exclusion of Part 27 spectrum
    holdings from application of the CMRS spectrum cap; (iii)
    flexibility to partition geographic service areas and disaggregate
    spectrum blocks; (iv) determination of regulatory status by
    licensee's designation in their long-form applications; and (v)
    incorporation, with some exceptions, of the competitive bidding
    rules set forth in Part 1 of the Commission's rules. We adapted and
    applied the Part 27 licensing procedures to the 746-764 MHz and
    776-794 MHz bands in our Upper 700 MHz proceeding.

#### Regulatory Status

81. We tentatively conclude that a licensee in the 698-746 MHz band may
    include any or a combination of services with more than one
    regulatory status in a single license. In adopting a flexible
    licensing framework for Part 27, the Commission permitted applicants
    to request more than one regulatory status for authorization in a
    single license, rather than require the applicant to choose a single
    status for its proposed services. Thus, a Part 27 license may
    authorize a combination of common carrier, non-common carrier and
    broadcast services in a single license, and the Part 27 licensee may
    render any kind of communications service consistent with that
    regulatory status. As we tentatively conclude to authorize licensees
    in the 698-746 MHz band to provide a variety of services (*e.g.*,
    fixed, mobile, *etc.*) under more than one regulatory status
    (*i.e.*, common carrier, non-common carrier, and/or broadcast), any
    one licensee would be permitted to provide any combination of
    services, anywhere within its licensed area at any time, consistent
    with its regulatory status and interference protection requirements.
    Given our decision to apply this Part 27 licensing framework in the
    Upper 700 MHz proceeding, we seek comment on our tentative
    conclusion to adopt this same framework for licensing services in
    the 698-746 MHz band. Does applying the same approach used for the
    Upper 700 MHz Band to this reallocated 698-746 MHz spectrum achieve
    efficiencies in the licensing and administrative processes?

82. Assuming that a 698-746 MHz licensee regulated under Part 27 may
    provide any communications service consistent with its authorized
    regulatory status, we seek comment on whether that licensee should
    be subject to other Commission rules specifically applicable to the
    nature of the service provided. Alternatively, we seek comment on
    whether we should amend Part 27 to include any other obligations for
    certain services authorized on this band. For example, the
    Communications Act applies specific requirements to broadcasters and
    common carriers that are not applied to other Part 27 licensees. In
    our *Upper 700 MHz First Report and Order*, we determined that the
    provision of "new broadcast-type" services does not alter the
    underlying broadcast nature of such services on the Upper 700 MHz
    Band, and as a result, such services are subject to the regulatory
    and statutory provisions governing broadcast service.[^168] However,
    in our *Upper 700 MHz MO&O and FNPRM*, we declined to go so far as
    to apply an "equivalent regulatory regime" from Part 73 of our rules
    to Part 27 broadcast licensees in the Upper 700 MHz band, stating
    that we would determine the applicable regulatory framework in the
    context of the offering of specific, actual new broadcast-type
    services.[^169] We tentatively conclude that we will adopt the same
    approach for Part 27 broadcast licensees on the 698-746 MHz band as
    we did for the Upper 700 MHz Band. We seek comment generally on any
    provisions in existing, service-specific rules that may require
    specific recognition or adjustment to comport with the potential
    supervening application of Part 27, as well as any provisions that
    would be necessary in Part 27 to fully describe the scope of covered
    service and technologies.

83. The possible inclusion of full power broadcasting within the
    reallocated 698-746 MHz band is more problematic with respect to the
    licensing and administrative process. We ask commenters to address
    whether a decision to permit full power broadcasting within this
    band affects our tentative conclusion that there should be no
    additional requirements for new broadcast-type licensees operating
    under Part 27.[^170] If we decide to permit full power broadcasting
    in this reallocated spectrum,[^171] should Part 73 apply to
    licensees to the extent they provide any broadcast services
    (including full power broadcasting as well as new broadcast-type
    services) and should Part 27 apply to the extent licensees provide
    other wireless services?

84. Consistent with the Part 27 framework adopted for the Upper 700 MHz
    Band, we seek comment on whether applicants and licensees in the
    698-746 MHz band should also be required to indicate to the
    Commission the regulatory status of any services that they choose to
    provide. To ensure compliance with the statutory requirements of
    Titles II and III of the Communications Act, the Commission has
    often required applicants to designate the regulatory status of the
    services they intend to provide. For example, the Commission's
    current Form 601 Application for Wireless Telecommunications Bureau
    -- Radio Service Authorization requires an applicant to indicate
    whether the service it intends to offer will be common carrier,
    non-common carrier, private, broadcast, and/or band manager. If we
    decide to require 698-746 MHz applicants and licensees to designate
    their regulatory status, does the Form 601 need to be revised in any
    way? To the extent that full power broadcast service is included in
    this reallocated spectrum, is there a need to modify the Form 601 or
    any other appropriate form(s) that an applicant may use to seek
    these services, either solely or in conjunction with other services
    under a single license?

85. We seek comment on whether applicants and licensees in the 698-746
    MHz band should be required to describe their proposed services. In
    adopting Part 27, the Commission stated that, apart from this
    designation of regulatory status, the Commission would not require
    applicants to describe the services they seek to provide. Likewise,
    in the Upper 700 MHz proceeding, the Commission stated that it is
    sufficient that an applicant indicate its choice of regulatory
    status in a streamlined application process. Should we apply a
    similar approach to services provided in the Lower 700 MHz Band,
    including full power broadcast as well as new broadcast-type
    services? If potential applicants are unsure of the nature of their
    services and their classification, we seek comment on whether we
    should require applicants to submit a petition with their
    applications requesting clarification and including service
    descriptions for that purpose.

86. We also seek comment on whether we should permit licensees to change
    their service in such a way that it alters their regulatory status.
    If we permit licensees to alter their regulatory status, what
    procedures should the Commission adopt to provide for this change?
    We seek comment on whether we should require such licensees to
    notify the Commission that they have altered their status, even if
    such change would not require prior Commission authorization.
    Similar to Upper 700 MHz Band licensees, should licensees in the
    Lower 700 MHz Band be required to notify the Commission within 30
    days of the change, unless the change results in the discontinuance,
    reduction, or impairment of the existing service, in which case a
    different time period may apply? In these situations, how can we
    best maximize a carriers' flexibility in service offerings while
    also implementing, for example, the requirement in Section 214(a) of
    the Communications Act that the Commission certify that the public
    convenience and necessity will not be adversely affected by such
    actions initiated by carriers?[^172] Does the potential inclusion of
    broadcasting, including full power broadcast services, require us to
    modify this approach? Because full power broadcast licensees are
    subject to different ownership rules and attribution standards than
    wireless licensees, we request comment on what procedures should
    apply when a licensee changes its offerings between these regulatory
    classifications.

87. Finally, we seek comment on whether we should permit licensees to
    lease their licensed spectrum usage rights in accordance with the
    proposals we may adopt in our *Secondary Markets NPRM*
    proceeding.[^173] In the alternative, we ask commenters to address
    any unique attributes of the Lower 700 MHz Band (*e.g.,* level of
    incumbency) that would justify a level of flexibility different from
    what we adopt generally in that proceeding. In considering leasing
    arrangements in our *Secondary Markets NPRM*, we stated the primary
    issue may be whether all licensees in certain services should have
    the option to use some or all of their licensed spectrum in the same
    manner as a band manager, *i.e.*, to make spectrum available to
    third party users without the need for prior Commission approval,
    while retaining primary responsibility for compliance with the
    Commission's rules.[^174] We also seek comment on the potential for
    band manager licensing to provide flexibility for the Lower 700 MHz
    Band given the distinctive technical and/or policy issues associated
    with its reallocation. Because we have not issued a decision in the
    Secondary Markets proceeding, we seek comment on the extent to which
    leasing arrangements and/or band manager licensing would help
    achieve the maximum flexibility possible for the use of this
    spectrum, consistent with technical and regulatory constraints.

88. We also seek comment on whether our service and auction rules should
    have any special provisions for private radio and/or public safety
    services on the 698-746 MHz band. For example, should parties who
    would function as band managers with the ability to lease their
    spectrum rights to various types of users, including private radio
    and/or public safety users, be eligible to bid for this spectrum? To
    enable the full and flexible use of this reallocated spectrum, we
    ask commenters to address any specific measures that should be taken
    to accommodate the provision of private and public safety regulatory
    classes of services.

#### Eligibility 

89. In the *Upper 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,[^175] other than the foreign ownership
    restrictions set forth in Section 310 of the Communications
    Act.[^176] Consistent with this approach, we propose that there be
    no restrictions on eligibility for a license in the 698-746 MHz
    band.[^177] We seek comment on our view that opening this spectrum
    to as wide a range of applicants as possible will encourage
    entrepreneurial efforts to develop new technologies and services,
    while helping to ensure efficient use of this spectrum. Commenters
    also should address how our proposed policy to not impose
    restrictions on eligibility should apply to possible use of this
    spectrum for broadcasting.[^178]

90. We also seek comment on the character qualification standard that
    should be applied to licensees in the 698-746 MHz band. While the
    character qualification standards applied to broadcasters have
    provided guidance in common carrier proceedings, the Commission has
    said that these standards are not "directly applicable" to common
    carriers.[^179] We seek comment on whether there is any reason that
    full power broadcasters who share spectrum with Part 27 wireless
    services, including wireless common carrier offerings, should not be
    governed by the existing standards applied to Part 73 licensees. We
    also seek comment on whether there is any reason we cannot apply our
    current rules to decide whether an entity that has been disqualified
    from holding a full power Part 73 broadcasting license pursuant to
    our character qualification rules should be eligible to provide
    non-broadcasting services pursuant to a Part 27 license.

#### Spectrum Aggregation Limits

91. To the extent that we allocate spectrum within the 698-746 MHz band
    for the provision of CMRS, we seek comment on whether spectrum in
    this band, if used to provide CMRS, should be subject to the
    Commission's 45/55 MHz CMRS spectrum cap.[^180] Currently, 180 MHz
    of broadband PCS, cellular, and SMR spectrum regulated as CMRS is
    subject to the Commission's 45 MHz (55 MHz in rural areas) spectrum
    cap. Part 27 of the Commission's rules does not limit the amount of
    spectrum that an entity may aggregate in any given geographic area.
    In the Upper 700 MHz proceeding, we refrained from extending the
    CMRS spectrum cap to the newly reallocated 746-764 and 776-794 MHz
    bands.[^181] We determined that the presence of a CMRS spectrum cap
    for the existing 180 MHz of spectrum subject to the cap provides a
    sufficient safeguard against consolidation of spectrum. In addition,
    we determined that factors such as the level of encumbrance, the
    extended transition period, and the degree to which spectrum would
    be used for CMRS all weighed against including the Upper 700 MHz
    Band in the spectrum cap.[^182]

92. In light of our findings in the Upper 700 MHz proceeding, we seek
    comment on whether we should abstain from counting the 698-746 MHz
    band against the CMRS spectrum cap? Alternatively, if we decide to
    apply the spectrum cap to this spectrum, we seek comment on whether
    and if so, how much, we should increase the amount of spectrum a
    single entity can hold beyond the 45/55 MHz threshold. In this
    regard, it has been our expectation that newly available
    CMRS-suitable spectrum either should be excluded from the cap, or if
    it is included, that the cap should be adjusted accordingly.[^183]
    Under the former alternative, if the spectrum does not count towards
    the cap and licensees use it for provision of CMRS, what impact will
    that have on competition in the CMRS marketplace? Under the latter
    alternative, what impact would an increase of the cap have on the
    reduction or concentration of competition and on changes in the
    prices or to the quality of services. Commenters should address the
    relevance of the factors that we considered in our decision not to
    apply the spectrum cap to the 746-764 and 776-794 MHz bands,
    including 1) whether applying the spectrum cap would be consistent
    with our goals of seeking flexible use of this spectrum; 2) whether
    permitting licensees to acquire all of the available lower 700 MHz
    spectrum in a given geographic area would result in economies of
    scale that could promote a variety of services, including advanced
    wireless services; and 3) whether it makes sense to count this
    spectrum against the cap if the extent to which the 698-746 MHz band
    will be used for CMRS services is not clear.

93. We also seek comment on whether spectrum in the 698-746 MHz band
    should be subject to any other aggregation limits. We decided not to
    adopt any in-band spectrum aggregation limits for the 747-762 MHz
    and 777-792 MHz bands. Similarly, should we not restrict the amount
    of commercial spectrum that any one licensee may obtain in the
    698-746 MHz band in the same licensed geographic service area? If
    so, we then seek comment on whether there should be any cross-band
    aggregation limits between the 747-762 MHz and 777-792 MHz bands,
    and the 698-746 MHz band. Should we preclude or otherwise limit an
    entity from obtaining all 78 MHz of spectrum in the combined Upper
    and Lower 700 MHz Bands in the same geographic area?

#### Foreign Ownership Restrictions

94. Sections 310(a), (b) of the Communications Act[^184] provide:

###### The station license required under this Act shall not be granted to or held by any foreign government or the representative thereof. 

###### No broadcast or common carrier or aeronautical en route or aeronautical fixed radio station license shall be granted to or held by\--

(1) any alien or the representative of any alien;

(2) any corporation organized under the laws of any foreign government;

(3) any corporation of which more than one-fifth of the capital stock is
    owned of record or voted by aliens or their representatives or by a
    foreign government or representative thereof or by any corporation
    organized under the laws of a foreign country;

(4) any corporation directly or indirectly controlled by any other
    corporation of which more than one-fourth of the capital stock is
    owned of record or voted by aliens, their representatives, or by a
    foreign government or representative thereof, or by any corporation
    organized under the laws of a foreign country, if the Commission
    finds that the public interest will be served by the refusal or
    revocation of such license.

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```
95. In the *Upper 700 MHz First Report and Order*, we concluded that
    Section 27.12 of the Commission's rules, which implements Section
    310 of the Act, should apply to applicants for licenses in the
    747-762 MHz and 777-792 MHz bands.[^185] We also decided that common
    carriers and non-common carriers will not be subject to varied
    reporting obligations. To enable the Commission to monitor
    effectively compliance with the alien ownership restrictions, we
    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 pursuant to the
    reporting requirements in Part 27 of our rules.[^186]

96. We tentatively conclude that Section 27.12 of the Commission's Rules
    should apply to applicants for 698-746 MHz band licenses. With
    respect to our alien ownership reporting requirements, we
    tentatively conclude that we will require all licensees in the
    698-746 MHz band spectrum to file changes in foreign ownership
    information to the extent required by Part 27 of our rules. We
    request comment on this approach.

#### License Term; Renewal Expectancy

97. The Communications Act imposes no term limit on licenses issued by
    the Commission, other than those for broadcast services, which are
    limited to an eight-year license term.[^187] The statute also
    specifies renewal criteria for broadcast stations.[^188] Part 27 of
    the Commission's rules provides for license term limits and renewal
    expectancy for other than new broadcast-type services. Section
    27.13(a) limits license terms for certain licensees to 10 years from
    the date of original issuance or renewal,[^189] and Section 27.14(b)
    establishes a right to a renewal expectancy.[^190]

98. In the *Upper 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.[^191] We decided that initial licenses for the 746-764
    MHz and 776-794 MHz bands[^192] would 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, (*i.e.,*
    January 1, 2015),[^193] subject to certain conditions.[^194]
    However, 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.[^195]

99. We seek comment on the appropriate license term to apply with
    respect to licensees in the 698-746 MHz band. We seek comment on
    whether to adopt the license term and renewal provisions in Part 27
    of the Commission's Rules, for other than new broadcast-type
    services.[^196] We therefore seek specific comment on whether the
    initial license term for licenses, other than new broadcast-type
    services, should expire on January 1, 2015. In addition, we seek
    comment on other alternatives, such as a 10-year license term.
    Commenters should also address whether it would be possible to have
    different license terms, depending on the type of service offered by
    the licensee. We also seek comment on how we would administer such
    an approach, particularly if licensees provide more than one service
    in their service area, or decide to change the type of service they
    plan to offer.

100. Furthermore, in the *Upper 700 MHz First Report and Order*, we
     adopted the right to a renewal expectancy established in Section
     27.14(b).[^197] We found that in order for a licensee involved in a
     comparative renewal proceeding[^198] to claim a renewal expectancy
     that licensee must include, at a minimum, the showing required by
     Section 27.14(c) of the Commission's rules.[^199] We seek comment
     on whether we should likewise adopt the right to a renewal
     expectancy established in Section 27.14 for licensees in the
     698-746 MHz band.

101. We also seek comment on whether a new broadcast licensee operating
     in the Lower 700 MHz Band would be able to claim the renewal
     expectancy established by Section 309(k) of the Act.[^200] We seek
     comment on whether there should be a distinction between the
     renewal expectancy that we will provide to new broadcasters in the
     Lower 700 MHz Band and licensees offering other services (*i.e.*,
     datacasting and other wireless services) on this band.

102. Consistent with Part 27, in the *Upper 700 MHz First Report and
     Order*, we found that in the event that a license is partitioned or
     disaggregated, any partitionee or disaggregatee shall be 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.[^201]
     Further, we decided that all licensees meeting the substantial
     service requirement will be deemed to have met this part of the
     renewal expectancy requirement regardless of which of the
     construction options the licensees have chosen. We concluded that
     this approach is appropriate because a licensee, through
     partitioning, should not be able to confer greater rights than it
     has been awarded under the terms of its license grant.[^202] We
     seek comment on taking this approach with respect to 698-746 MHz
     licensees.

#### Performance Requirements

103. Section 27.14(a) of the Commission's rules requires licensees to
     provide "substantial service" in their service areas within their
     prescribed license term. Failure to meet this requirement will
     result in forfeiture of the license.[^203] In the *Upper 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 in the 747-762 MHz and 777-792 MHz bands to
     provide substantial service to their service areas no later than
     January 1, 2015,[^204] eight years after December 31, 2006, the
     date as of which incumbent broadcasters are required to have
     relocated to other portions of the spectrum.[^205] 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."[^206] In the *Part 27 Report and
     Order,* the *LMDS Second Report and Order*, and the *Upper 700 MHz
     First Report and Order*, the Commission adopted safe harbors that
     would demonstrate substantial service.[^207] In implementing its
     auction procedures, Section 309(j)(4)(B) of the Communications Act
     requires the Commission to include safeguards to protect the public
     interest in the use of the spectrum and performance requirements
     "to ensure prompt delivery of service to rural areas, to prevent
     stockpiling or warehousing of spectrum by licensees or permittees,
     and to promote investment in and rapid deployment of new
     technologies and services."[^208] In addition, we seek to promote
     the efficient and effective use of the spectrum.[^209] We invite
     comment on the development of service rules to meet these
     objectives.

104. We seek comment on whether we should require licensees in the
     698-746 MHz band to provide substantial service on January 1, 2015,
     the date that we require licensees in the 747-762 and 777-792 MHz
     band to provide substantial service. We also seek comment on
     whether we should adopt any safe harbors for licensees in the
     698-746 MHz band. In the *Upper 700 MHz First Report and Order*, we
     adopted two safe harbors for fixed services: (1) for a licensee who
     chooses to offer fixed, point-to-point services, the construction
     of four permanent links per one million people in its licensed
     service area during its license term or at the license-renewal mark
     would constitute substantial service; and (2) for a licensee who
     chooses to offer fixed, point-to-multipoint services, a
     demonstration of coverage for 20 percent of the population of its
     licensed service area during its licensed term or at the
     license-renewal mark would constitute substantial service.[^210] We
     also there encouraged licensees to build out not only in urban
     areas and areas of high density population but in rural areas as
     well, or to partition their license to allow others to do so.[^211]
     In addition, we seek comment on whether we should adopt safe
     harbors for mobile services (assuming we adopt the substantial
     service requirement for mobile services) and, if so, what safe
     harbors would be appropriate. If commenters support safe harbors
     other than those listed above, they should discuss what other safe
     harbors should be adopted.

105. We also seek comment on distinct issues raised by applying this
     proposal to new potential broadcast use of the spectrum. Broadcast
     permittees operating pursuant to Part 73 are required to construct
     their facilities within three years.[^212] We request comment on
     whether there are any reasons not to apply these rules to new
     broadcasters on these bands. Further, we seek comment on whether to
     adopt a substantial service test for broadcasters operating on this
     band and, if so, what safe harbors would be appropriate.

#### Disaggregation and Partitioning of Spectrum.

106. In the *Upper 700 MHz First Report and Order*, we provided
     licensees in the 746-764 MHz and 776-794 MHz bands flexibility by
     permitting geographic partitioning of any service area defined by
     the partitioner and partitionee and spectrum disaggregation without
     restriction on the amount of spectrum to be disaggregated.[^213] We
     tentatively conclude that we also should permit licensees in the
     698-746 MHz band to partition and disaggregate their licenses. We
     tentatively conclude that geographic partitioning and spectrum
     disaggregation can result in efficient spectrum use and economic
     opportunity for a wide variety of applicants, including small
     business, rural telephone, minority-owned, and women-owned
     applicants.[^214] We also tentatively conclude that this approach
     will provide a means to overcome entry barriers through the
     creation of smaller licenses that require less capital, thereby
     facilitating greater participation by rural telephone companies and
     other smaller entities, many of which are owned by minorities and
     women.[^215] We seek comment on each of these matters.

107. Section 27.15 of the Commission's rules[^216] permits licensees
     seeking approval for partitioning and disaggregation arrangements
     to request authorization from the Commission for partial assignment
     of a license, and provides that licensees may apply to partition
     their licensed geographic service areas or disaggregate their
     licensed spectrum at any time following the grant of their
     licenses. In the *Upper 700 MHz First Report and Order*, we decided
     to permit geographic partitioning of any service area defined by
     the partitioner and partitionee, to permit spectrum disaggregation
     without restriction on the amount of spectrum to be disaggregated,
     and to permit combined partitioning and disaggregation.[^217]
     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.[^218] Licenses that partition
     and disaggregate also are subject to the provisions against unjust
     enrichment set forth in Section 27.15(c).[^219] We concluded that
     allowing parties to decide without restriction the exact amount of
     spectrum to be disaggregated or geographic area to be partitioned
     will encourage more efficient use of the spectrum and permit the
     deployment of a broader mix of service offerings, both of which
     will lead to a more competitive wireless marketplace.[^220] We
     request comment on whether licensees in the 698-746 MHz band should
     be eligible to partition service areas and disaggregate spectrum to
     the same extent that licensees in the 746-764 MHz and 776-794 MHz
     bands are permitted to do so. We also request comment on what
     limits, if any, should be placed on the ability of licensees to
     partition service areas and disaggregate spectrum.

108. We also propose to adopt the methods that the Commission adopted in
     the *Upper 700 MHz First Report and Order* for parties to
     partitioning, disaggregation, or combined partitioning and
     disaggregation agreements to meet construction requirements.[^221]
     Specifically, we propose that parties to partitioning agreements be
     permitted to choose between two options for satisfying the
     construction requirements.[^222] 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 licensee fails to meet its
     substantial service requirement during the relevant license term,
     the non-performing licensee's authorization would be subject to
     cancellation at the end of the license term. Under the second
     option, the partitioner certifies that the requirement has been or
     will be met for the entire market. If the partitioner fails to meet
     the substantial service standard during the relevant license term,
     only its license would be subject to cancellation at the end of the
     license term. The partitionee's license would not be affected by
     such failure.

109. Finally, we propose to allow parties to disaggregation agreements
     to choose between two options for satisfying the construction
     requirements.[^223] Under the first option, the disaggregator and
     disaggregatee would certify that they will share responsibility for
     meeting the substantial service requirement for the geographic
     service area. If parties choose this option, both parties'
     performance will be evaluated at the end of the relevant license
     term and both licenses could be subject to cancellation. The second
     option would allow the parties to agree that either the
     disaggregator or the disaggregatee would be responsible for meeting
     the substantial service requirement for the geographic service
     area. If parties choose this option, and the party responsible for
     meeting the construction requirement fails to do so, only the
     license of the non-performing party would be subject to
     cancellation.

### Operating Rules

110. In the *Upper 700 MHz First Report and Order*, we decided that
     licensees in the 747-762 MHz and 777-792 MHz bands would be subject
     to the operational rules contained in Part 27 that govern
     operations, modified to accommodate the particular circumstances of
     the Upper 700 MHz proceeding.[^224] We considered operating 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
     Act. The discussion in the Upper 700 MHz proceeding focused on
     operating rules for licensees to the extent that they offer common
     carrier services. We did not determine to survey at that time the
     range of statutory and regulatory provisions that may be relevant
     to any new service offerings on the band that qualify as new
     broadcast-type services.

111. We seek comment generally on the applicability of these rules to
     the 698-746 MHz band and whether any operating rules contained in
     other Parts of the Commission's rules should be adopted for the
     698-746 MHz band. In addition, we ask commenters to suggest any
     alternatives to such regulations governing a licensee's operations
     in order to minimize the potential significant economic impact, if
     any, from such rules on small entities.

#### Forbearance

112. Pursuant to Section 10(a) of the Communications Act,[^225] the
     Commission is directed to forbear from applying any regulation or
     provision of the Act to a telecommunications carrier or service, or
     class of telecommunications carriers or services, in any or some of
     its geographic markets, if we determine that: (1) enforcement of
     such regulation or provision is not necessary to ensure that the
     charges, practices, classifications, or regulations by, for, or in
     connection with that telecommunications carrier or
     telecommunications service are just and reasonable and are not
     unjustly or unreasonably discriminatory; (2) enforcement of such
     regulation or provision is not necessary for the protection of
     consumers; and (3) forbearance from applying such provision or
     regulation is consistent with the public interest. In determining
     whether forbearance is consistent with the public interest, we are
     directed to consider whether forbearance will promote competitive
     market conditions, including whether it will enhance competition
     among existing telecommunications service providers, and a
     determination that forbearance will promote competition may be the
     basis for a finding that forbearance is in the public
     interest.[^226]

113. We seek comment on whether we should consider forbearance
     initiatives that are targeted specifically to new licensees that
     will operate in the Lower 700 MHz Band. Commenters should address
     how forbearance might apply to the various services that might be
     offered in the Lower 700 MHz Band, including CMRS, fixed wireless
     and new broadcast-type service.[^227]

#### Equal Employment Opportunity.

114. In the *Upper 700 MHz First Report and Order*, we declined to
     include specific EEO provisions in Part 27 for application to the
     747-762 MHz and 777-792 MHz bands. Because the Commission's EEO
     Rules are service-specific, we determined that an applicant's EEO
     requirements will depend on the type of service it chooses to
     provide.[^228] In adopting rules for the Upper 700 MHz proceeding,
     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.*[^229] We found that an
     applicant's election on its FCC Form 601 will determine the EEO
     Rules that apply to the applicant. In this Notice, we tentatively
     conclude that for the Lower 700 MHz Band an applicant's EEO
     requirements will be determined by the type of service an applicant
     chooses to provide. We seek comment on this matter.

### Competitive Bidding Procedures

115. As is discussed above, Section 309(j)(14)(C) requires the
     Commission to assign licenses for the 698-746 MHz band by means of
     the competitive bidding procedures adopted pursuant to Section
     309(j) of the Act.[^230] Consistent with that directive, we request
     comment on a number of issues relating to the competitive bidding
     procedures for the 698-746 MHz band.

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

116. We propose to conduct the auction of initial licenses in the
     698-746 MHz band 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.[^231] Specifically, we propose
     to employ the Part 1 rules governing competitive bidding design,
     designated entities, application and payment procedures, reporting
     requirements, collusion issues, and unjust enrichment.[^232] Under
     this proposal, such rules would be subject to any modifications
     that the Commission may adopt in the Part 1 proceeding.[^233] In
     addition, consistent with current practice, matters such as the
     appropriate competitive bidding design for the auction of 698-746
     MHz band licenses, as well as minimum opening bids and reserve
     prices, would be determined by the Wireless Telecommunications
     Bureau pursuant to its delegated authority.[^234] We note that the
     Wireless Telecommunications Bureau has established combinatorial
     bidding procedures for the auction of licenses in the 747-762 MHz
     and 777-792 MHz bands (Auction No. 31).[^235] We seek comment on
     whether any of our Part 1 rules would be inappropriate in an
     auction of licenses in the 698-746 MHz band.

#### Provisions for Designated Entities

117. In authorizing the Commission to use competitive bidding, Congress
     mandated that the Commission "ensure that small businesses, rural
     telephone companies, and businesses owned by members of minority
     groups and women are given the opportunity to participate in the
     provision of spectrum-based services."[^236] In addition, Section
     309(j)(3)(B) of the Act provides that in establishing eligibility
     criteria and bidding methodologies the Commission shall promote
     "economic opportunity and competition . . . by avoiding excessive
     concentration of licenses and by disseminating licenses among a
     wide variety of applicants, including small businesses, rural
     telephone companies, and businesses owned by members of minority
     groups and women."[^237]

118. The Commission's designated entity preferences apply based on an
     entity's qualification as a small business.[^238] We note that
     minority- and women-owned businesses and rural telephone companies
     that qualify as small businesses may take advantage of the special
     provisions we have adopted for small businesses.[^239] We
     tentatively conclude that our small business provisions are
     sufficient to promote participation by businesses owned by
     minorities and women, as well as rural telephone companies. To the
     extent that commenters propose additional provisions to ensure
     participation by minority- or women-owned businesses, they should
     address how such provisions should be crafted to meet the relevant
     constitutional standards.[^240]

119. We seek comment on the appropriate definitions of small businesses
     that should be used to determine eligibility for bidding credits in
     the 698-746 MHz band. In the *Competitive Bidding Second Memorandum
     Opinion and Order*, the Commission stated that it would define
     eligibility requirements for small businesses on a service-specific
     basis, taking into account the capital requirements and other
     characteristics of each particular service in establishing the
     appropriate threshold.[^241] The *Part 1 Third Report and Order*,
     while it standardizes many auction rules, provides that the
     Commission will continue a service-by-service approach to defining
     small businesses.[^242]

120. We propose to apply the same small business definitions here that
     we adopted for the Upper 700 MHz Band. In the *Upper 700 MHz First
     Report and Order*, we defined 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.[^243] We believe the services that will
     be deployed in this band will have similar capital requirements to
     the commercial services in the Upper 700 MHz Band, and thus the
     same small business definitions should apply. We believe that new
     licensees both in this band and the Upper 700 MHz Band may be
     presented with similar issues and costs, including those involved
     in relocating incumbents and developing markets, technologies, and
     services. We invite comment on this analysis. In further support of
     our proposed definitions, we note that a majority of winning
     bidders in the auctions for licenses in the Upper 700 MHz guard
     bands claimed eligibility as small businesses.[^244] These results
     appear to confirm our belief, as stated in the *Upper 700 MHz First
     Report and Order*, that "these two definitions will provide
     businesses seeking to provide a variety of services with
     opportunities to participate in the auction of licenses for this
     spectrum."[^245]

121. Commenters proposing alternative standards should give careful
     consideration to the likely capital requirements for developing
     services in this spectrum. For example, interested parties should
     consider the impact of our band plan on small business size
     standards. In this regard, we seek comment on whether our band plan
     or any other factors that might have an impact on capital
     requirements warrant the adoption of an additional definition for
     entities with average annual gross revenues for the three preceding
     years of not more than \$3 million. Commenters should also consider
     whether the band plan and characteristics of the Lower 700 MHz Band
     suggest that the adoption of small business size definitions and
     the use of bidding credits would be inappropriate in this instance.

122. In the *Part 1 Third Report and Order*, we adopted a standard
     schedule of bidding credits for certain small business definitions,
     the levels of which were developed based on our auction
     experience.[^246] Our standard schedule may be found at Section
     1.2110(f)(2) of the Commission's rules.[^247] We continue to
     believe that these levels of bidding credits will provide adequate
     opportunities for small businesses of varying sizes to participate
     in spectrum auctions.[^248] Assuming that we adopt our proposal to
     define for the services in this band 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, we propose to provide qualifying
     "small businesses" with a bidding credit of 15% and "very small
     businesses" a 25% bidding credit, consistent with Section
     1.2110(f)(2).[^249] We seek comment on this proposal. We also seek
     comment on whether, if we adopt a third small business definition
     for entities with average annual gross revenues of not more than
     \$3 million for the past three years, the 35% bidding credit set
     out in Section 1.2110(f)(2)(i) should be made available to such
     entities.[^250] Finally, we invite comment on whether there may be
     any distinctive characteristics to this band that might suggest a
     more limited use of bidding credits here.

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

123. Section 309(b) and Section 309(c) of the Communications Act require
     public notice for initial applications, and substantial amendments
     thereof.[^251] 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. The same provision also
     grants the Commission the authority to impose public notice
     requirements for other licenses, even though the statute does not
     require public notice. However, the administrative procedures for
     spectrum auctions adopted in Section 3008 of the BBA 97[^252] and
     Consolidated Appropriations Act, 2000,[^253] 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*,[^254] the Commission exercised
     this statutory authority by amending Section 1.2108(b) and Section
     1.2108(c) of the Commission's Rules to provide for a five-day
     period for filing petitions to deny and a seven-day public notice
     period for all auctionable services.

124. In the *Upper 700 MHz First Report and Order*, we adopted the
     seven-day notice requirement for initial applications and the
     five-day deadline for petitions to deny.[^255] We also determined
     that an applicant filing for both common carrier and non-common
     carrier authorizations in a single license and wishing to make
     subsequent status changes will be subject to the seven-day public
     notice requirement. We tentatively conclude in this Notice that
     services in the 698-746 MHz spectrum will be auctionable services.
     Therefore, we propose that a seven-day notice period for initial
     applications and a five-day deadline for petitions to deny would be
     applicable. We request comments on this proposal and whether longer
     periods should apply for some services. Commenters should address
     whether imposing the proposed seven-day notice requirement and
     five-day petition to deny period would be an undue burden on
     parties, and whether it would be administratively useful by
     enabling us to ensure that any applicant filing for both common
     carrier and non-common carrier authorizations in a single license
     is in compliance with (1) the licensing requirements for common
     carriers and broadcasters established in Title III of the
     Communications Act; and (2) any related requirements we may adopt.
     Commenters also should address whether we should allow all
     licensees to make subsequent status changes under reduced
     notification requirements.

### Possible Measures to Facilitate Clearing of 698-746 MHz Band and Accelerate DTV Transition

125. As we discuss in this Notice, the 698-746 MHz band at issue here
     has historically been used exclusively by television stations
     (Channels 52-59).[^256] In developing the DTV transition plan, the
     Commission announced its belief that "the recovery of spectrum
     continue\[s\] to be a key component of our implementation of DTV
     service. In this regard, we remain committed to the recovery of the
     channels temporarily assigned for the transition and to ensuring
     that the spectrum is used efficiently."[^257] The Commission also
     announced that the DTV transition plan would "permit the eventual
     recovery" of additional spectrum nationwide while minimizing
     disruptions to broadcasters, and identified only the Channels 60-69
     portion of the spectrum for "early recovery," noting that under the
     plan "it may be possible to recover 60 MHz of spectrum almost
     immediately from the band 746-806 MHz, *i.e.*, UHF Channels 60-69,
     while protecting the relatively few full-service analog and digital
     broadcasters in that spectrum."[^258] The incumbent television
     broadcasters are permitted by statute to continue operations until
     their markets are converted to DTV,[^259] which is not scheduled to
     occur until December 31, 2006, and that date may be extended under
     certain circumstances.[^260] Congress has, however, directed the
     Commission to commence competitive bidding for licenses to use the
     lower 700 MHz spectrum well before the scheduled termination date
     of the DTV transition.[^261] Thus, in the event that we decide to
     reallocate this spectrum, we will be faced with a situation that is
     in many respects similar to that which the Commission has recently
     addressed in regard to the Upper 700 MHz Band, which is currently
     used by Channels 60-69.[^262] In the Upper 700 MHz proceeding, the
     Commission announced policies and adopted mechanisms to facilitate
     the voluntary clearing of the 740-806 MHz band to allow for the
     introduction of new wireless services, and to promote the early
     transition of analog television licensees to DTV.[^263] In this
     Notice, we solicit comment as to the band clearing mechanisms and
     policies that would be appropriate for the 698-746 MHz band.

126. With respect to the Upper 700 MHz Band, we adopted rules and
     policies that allow the private sector to determine the
     band-clearing mechanisms that will best suit broadcasters' and
     potential new 700 MHz licensees' needs. In the *Upper 700 MHz Third
     Report and Order*, we announced our intention to rely upon
     voluntary band clearing agreements among incumbent broadcasters and
     new Upper 700 MHz licensees to open that band to new uses and
     accelerate the transition to DTV. In so doing, we were guided by
     our conclusion in our *Spectrum Reallocation Policy Statement* that
     a flexible, market-based approach is the most appropriate method
     for establishing service rules for this band.[^264] Here, we
     propose to extend the rules and policies adopted in the Upper 700
     MHz proceeding to voluntary clearing of the 698-746 MHz spectrum,
     and seek comment on this proposal.

127. As discussed above, incumbent full-power broadcast stations are
     entitled to interference protection throughout the DTV
     transition.[^265] We acknowledge that, as a practical matter, it
     may be difficult to identify vacant allotments into which
     broadcasters may feasibly relocate, particularly in light of the
     larger number of incumbent analog and DTV stations on the Lower 700
     MHz Band than on the Upper 700 MHz Band. In the later stages of the
     DTV transition, however, we expect that such opportunities will
     increase as other broadcasters begin to surrender analog allotments
     (consistent with the policies we adopted in the *Upper 700 MHz
     Third Report and Order*) and the DTV transition and band clearing
     processes gain momentum. We seek comment as to whether any
     particular characteristics of broadcast operations on the Lower 700
     MHz Band may make it more difficult to clear this spectrum when
     compared with the Upper 700 MHz Band.[^266] In addition, we pose a
     number of questions on issues relating to band clearing that are
     designed to elicit comment on whether the policies adopted in the
     Upper 700 MHz proceeding should be extended to the 698-746 MHz
     spectrum.

#### Voluntary Transition Agreements

128. In the Upper 700 MHz proceeding, we adopted certain policies
     regarding the Commission's review of regulatory requests submitted
     in connection with voluntary clearing agreements that are intended
     to facilitate clearing and streamline the review process. Among
     these policies were a general presumption, standards of review, and
     procedural policies concerning bilateral and three-way agreements.
     Under bilateral agreements, broadcasters might relinquish one of
     their two television allotments for use by new wireless licensees.
     Three-way clearing agreements would provide for TV incumbents on
     television Channels 52-69 to relocate to lower band TV channels
     that, in turn, would be voluntarily cleared by the lower band TV
     incumbents.

129. In the Upper 700 MHz proceeding, we stated that we generally do not
     intend to review the wisdom of private parties' business decisions
     in reaching agreements, and that our role would be limited to
     weighing the effect on the public interest of regulatory requests
     made in connection with such agreements.[^267] With respect to our
     review of such regulatory requests, we established a rebuttable
     presumption that, in certain circumstances, substantial public
     interest benefits will arise from a voluntary agreement between a
     700 MHz licensee and an incumbent broadcast licensee on Channels
     59-69 that clears the Upper 700 MHz Band of incumbent television
     licensee(s). We stated that we would presume that the public
     interest is substantially furthered when an applicant demonstrates
     that the grant of its request will both result in certain specific
     benefits and avoid specific detriments.[^268] In particular, to
     obtain this presumption, an applicant must first demonstrate that
     grant of its request would result in one of the following: (1) make
     new or expanded wireless service, such as "2.5G" or "3G" services,
     available to consumers; (2) clear commercial frequencies that
     enable provision of public safety services; or (3) result in the
     provision of wireless service to rural or other underserved
     communities.[^269] To obtain the presumption, the applicant must
     also show that grant of its request would not result in any one of
     the following: (1) the loss of any of the four stations in the
     designated market area with the largest audience share; (2) the
     loss of the sole service licensed to the local community; or (3)
     the loss of a community's sole service on a channel reserved for
     noncommercial educational broadcast service.[^270] However, this
     presumption is not conclusive or dispositive.[^271] When the
     presumption is not established or is rebutted, the Commission will
     review regulatory requests by weighing the loss of service and the
     advent of new wireless service on a case-by-case basis.[^272] In
     addition, we adopted various procedural changes in order to
     streamline the process of reviewing regulatory requests that are
     necessary to effectuate private band-clearing agreements, and
     affirmed our commitment to process regulatory requests associated
     with relocation agreements expeditiously.[^273]

130. We propose to extend these policies to band clearing agreements
     involving broadcasters in the 698-740 MHz band. We seek comment on
     this proposal. We also request input as to whether the streamlined
     procedural policies could be improved to facilitate such
     agreements. While we do not intend to entertain collateral attacks
     on our Upper 700 MHz policy, we invite commenters to explain any
     particular differences about Channels 52-58, such as the impact
     that the greater numbers of broadcast incumbents may have on the
     recovery of this band, which may warrant a change from our policy
     with regard to the voluntary band clearing agreements for Channels
     59-69.

#### Secondary Auctions

131. A secondary band clearing auction would be a mechanism to determine
     the price that would be paid by new licensees to TV incumbents who
     agree to clear their channels. We recognized in the Upper 700 MHz
     proceeding that a secondary auction mechanism may produce
     significant benefits. Thus, we observed in the *Upper 700 MHz Third
     Report and Order*:

> A secondary auction may encourage band clearing in a more systematic
> and comprehensive fashion than would be the case with individual *ad
> hoc* clearing arrangements among incumbent broadcasters and winning
> bidders. A secondary auction may give potential wireless licensees
> greater certainty that the spectrum will be cleared. The efficiency of
> such a secondary market mechanism is likely to ensure that the
> spectrum is employed in the most highly valued economic use.[^274]

We propose here to leave any such auction to private, voluntary efforts
that are otherwise consistent with our stated policies and do not
interfere with the proper functioning of the Commission's spectrum
auction processes.[^275] Our proposal is based on our belief that, as we
stated in the *Upper 700 MHz Third Report and Order*, "the private
sector is better suited to determine what mechanisms interested parties
might demand and to implement a secondary auction in a manner that is
most responsive to broadcasters' and potential bidders' needs."[^276]

132. We seek comment on all aspects of this approach. In this regard, we
     invite commenters to identify any existing regulations or policies
     that may unnecessarily restrict the operation of such private,
     voluntary band clearing mechanisms.

#### Additional Proposals to Facilitate Band Clearing Accelerate the Digital Television Transition

133. In the Upper 700 MHz proceeding, we solicited ideas on additional
     proposals that might accelerate the DTV transition.[^277] A number
     of commenters used that opportunity to request relief on a number
     of issues related to the DTV transition, such as urging the
     adoption of DTV must-carry rules, in order to encourage
     clearing.[^278] To the extent that these issues are before the
     Commission in separate proceedings, we will not address them
     here.[^279] As we did in the Upper 700 MHz proceeding, we invite
     comment on other related proposals to facilitate band clearing and
     expedite the DTV transition, such as the possible use of
     cost-sharing rules, cost recovery limitations, or band sharing. We
     note that financial payments to cable operators or satellite
     carriers for the voluntary carriage of broadcast signals might
     facilitate clearance of the band on a more rapid basis.

134. *Cost-Sharing Rules and Limitations on Cost Recovery*. While the
     Commission has at times relied on cost-sharing rules and
     limitations on cost recovery to assist in clearing other bands so
     as to enable faster deployment of new services,[^280] in the *Upper
     700 MHz Third Report and Order,* we concluded that it would not be
     necessary or appropriate to adopt cost-sharing rules or caps on
     clearing costs.[^281] In reaching those conclusions, we reasoned
     that we could rely on market forces to produce any desirable
     cost-sharing relationships, and that private parties are best
     suited to assess, quantify, and reach agreement on the appropriate
     sharing of risk.[^282] We tentatively conclude that we should
     similarly rely on market forces to apportion all costs to
     facilitate clearing of the 698-746 MHz band, and that limitations
     on the recovery of such costs would not be appropriate at this
     time. We seek comment on this tentative conclusion and on whether
     we should consider other alternative approaches.

135. *Spectrum Sharing and Other Proposals to Facilitate Early
     Transition.* In the *Upper 700 MHz MO&O and FNPRM,* we sought
     comment on two additional proposals to accelerate the digital
     television transition: sharing of the 700 MHz spectrum between
     broadcasters and new wireless licensees, and sharing between
     broadcasters during the transition.[^283] We received no comments
     on the possible sharing of 700 MHz spectrum between incumbent
     broadcasters and new licensees, and one comment in support of
     sharing by a broadcaster of another television station's digital
     spectrum under certain circumstances.[^284] We recognize that it is
     technically feasible for two or more DTV signals to be broadcast in
     a single six megahertz allotment. Sharing between broadcasters and
     some types of new services may be technically feasible as well.

136. In this regard, we seek comment as to whether the Commission should
     allow incumbent broadcasters and new service providers to share
     spectrum in time and/or bits, provided such arrangements are
     otherwise consistent with the objectives of this proceeding and the
     DTV transition. This proposal would preserve broadcast service
     while also providing opportunity for new service providers to
     commence service. In addition, sharing arrangements may assist
     broadcasters in rapidly transitioning to digital service.
     Similarly, we request comment on whether we should permit
     broadcasters to share DTV facilities and spectrum during the
     transition. This proposal may facilitate clearing of in-core
     channels for relocation of television operations on out-of-core
     channels.

# PROCEDURAL MATTERS

## *Ex Parte* Rules -- Permit-But-Disclose

137. This is a permit-but-disclose notice and comment rulemaking
     proceeding. *Ex parte* presentations are permitted, except during
     the Sunshine Agenda period, provided they are disclosed pursuant to
     the Commission**'**s Rules.[^285]

## Initial Regulatory Flexibility Analysis

138. As required by the Regulatory Flexibility Act of 1980 (RFA),[^286]
     the Commission has prepared an Initial Regulatory Flexibility
     Analysis (IRFA) of the possible significant economic impact on
     small entities of the policies and rules proposed in the
     Notice.[^287] The analysis is found in Appendix C. We request
     written public comment on the analysis. Comments must be filed in
     accordance with the same filing deadlines as comments filed in this
     rulemaking proceeding, and must have a separate and distinct
     heading designating them as responses to the IRFA. The
     Commission**'**s Consumer Information Bureau, Reference Information
     Center, will send a copy of this Notice, including the IRFA, to the
     Chief Counsel for Advocacy of the Small Business Administration.

## Initial Paperwork Reduction Analysis

139. This Notice may contain a proposed information collection. As part
     of our continuing effort to reduce paperwork burdens, we invite the
     general public and the Office of Management and Budget (OMB) to
     take this opportunity to comment on the information collections
     contained in this Notice, as required by the Paperwork Reduction
     Act of 1995.[^288] Public and agency comments are due at the same
     time as other comments on this Notice; OMB comments are due 60 days
     from the date of publication of this Notice in the Federal
     Register. Comments should address: (a) whether the proposed
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practical utility; (b) the accuracy of the
     Commission**'**s burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology.

140. Written comments by the public on the proposed information
     collections are due May 14, 2001. Written comments must be
     submitted by the OMB on the proposed and/or modified information
     collections on or before 60 days after the date of publication in
     the Federal Register. In addition to filing comments with the
     Secretary, a copy of any comments on the information collections
     contained herein should be submitted to Judy Boley, Federal
     Communications Commission, 445 12^th^ Street, S.W., Room 1-C804,
     Washington, D.C. 20554, or via the Internet to jboley@fcc.gov, and
     to Edward C. Springer, OMB Desk Officer, 10236 New Executive Office
     Building, 725 17^th^ Street, N.W., Washington, D.C. 20503 or via
     the Internet to Edward.Springer@omb.eop.gov.

## Comment Period and Procedures

141. Pursuant to applicable procedures set forth in Sections 1.415 and
     1.419 of the Commission**'**s Rules,[^289] interested parties may
     file comments on this Notice on or before May 14, 2001 and reply
     comments on or before June 4, 2001. Comments and reply comments
     should be filed in GN Docket No. 01-74, and may be filed using the
     Commission's Electronic Comment Filing System (ECFS) or by filing
     paper copies.[^290] All relevant and timely comments will be
     considered by the Commission before final action is taken in this
     proceeding.

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

143. Parties who choose to file by paper must file an original and four
     copies of each filing. If more than one docket or rulemaking number
     appears in the caption of this proceeding, commenters must submit
     two additional copies for each additional docket or rulemaking
     number. If parties want each Commissioner to receive a personal
     copy of their comments, they must file an original plus nine
     copies. All filings must be sent to the Commission's Secretary,
     Magalie Roman Salas, Office of the Secretary, Federal
     Communications Commission, 445 12^th^ Street, S.W., Room TW-A325,
     Washington, D.C. 20554. Furthermore, parties are requested to
     provide courtesy copies for the following Commission staff: (1)
     Lisa Gaisford, Office of Engineering and Technology, Federal
     Communications Commission, 445 12^th^ Street, S.W., Room. 7-C115,
     Washington, D.C. 20554; and (2) G. William Stafford, Commercial
     Wireless Division, Wireless Telecommunications Bureau, Federal
     Communications Commission, 445 12^th^ Street, S.W., Room. 4-B455,
     Washington, D.C. 20554. One copy of each filing (together with a
     diskette copy, as indicated below) should also be sent to the
     Commission's copy contractor, International Transcription Service,
     Inc., (ITS, Inc.), 1231 20^th^ Street, N.W., Washington, D.C.
     20036.

144. Parties who choose to file by paper should also submit their
     comments on diskette. These diskettes should be attached to the
     original paper filing submitted to the Office of the Secretary.
     Such a submission should be on a 3.5 inch diskette formatted in an
     IBM compatible format using Microsoft ^TM^ Word 97 for Windows or
     compatible software. The diskette should be accompanied by a cover
     letter and should be submitted in "read only" mode. The diskette
     should be clearly labeled with the commenter's name, proceeding,
     type of pleading (comment or reply comment), date of submission,
     and the name of the electronic file on the diskette. The label
     should also include the following phrase "Disk Copy -- Not an
     Original." Each diskette should contain only one party's pleadings,
     preferably in a single electronic file. In addition, commenters
     should send diskette copies to the Commission's copy contractor,
     ITS, Inc., 1231 20^th^ Street, N.W., Washington, D.C. 20036.

145. The public may view the documents filed in this proceeding during
     regular business hours in the FCC Reference Information Center,
     Federal Communications Commission, 445 12^th^ Street, S.W., Room
     CY-A257, Washington, D. C. 20554, and on the Commission's Internet
     Home Page: [http://www.fcc.gov](http://www.fcc.gov/). Copies of
     comments and reply comments are also available through the
     Commission**'**s duplicating contractor: ITS, Inc., 1231 20^th^
     Street, N.W., Washington, D.C. 20036, (202) 857-3800.

## Further Information

146. For further information concerning this rulemaking proceeding,
     contact the following for:

     Allocation Issues: Lisa Gaisford at (202) 418-7280, Office of
     Engineering and Technology, Federal Communications Commission,
     Washington, D.C. 20554; or via the Internet to lgaisfor@fcc.gov

     Service Rules Issues: G. William Stafford at (202) 418-0563,
     Wireless Telecommunications Bureau, Federal Communications
     Commission, Washington, D.C. 20554; or via the Internet to
     wstaffor@fcc.gov.

# Ordering Clauses

147. Accordingly, IT IS ORDERED, pursuant to Sections 1, 2, 4(i), 7, 10,
     201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 316,
     319, 324, 331, 332, 333, 336, 337, 614 and 615 of the
     Communications Act of 1934, 47 U.S.C. §§ 151, 152, 154(i), 157,
     160, 201, 202, 208, 214, 301, 302a, 303, 307, 308, 309, 310, 311,
     316, 319, 324, 331, 332, 333, 336, 337, 534, 535, that this Notice
     of Proposed Rulemaking is hereby ADOPTED.

148. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
     regulatory changes described in this Notice, and that comment is
     sought on these proposals.

149. IT IS FURTHER ORDERED that the Commission's Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of this
     Notice, including the Initial Regulatory Flexibility Analysis, to
     the Chief Counsel for Advocacy of the Small Business
     Administration.

> Federal Communications Commission
>
> Magalie Roman Salas
>
> Secretary

APPENDIX A: Proposed Rules

Part 2 of title 47 of the Code of Federal Regulations is proposed to be
amended as follows:

**PART 2 \-- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS**

1\. The authority citation for part 2 continues to read as follows:

AUTHORITY: 47 U.S.C. 154, 302a, 303 and 336, unless otherwise noted.

2\. Section 2.106, the Table of Frequency Allocations, is amended as
follows:

a\. Revise page 37.

b\. In the International Footnotes under heading I., revise footnotes
S5.293, S5.296, and S5.297.

c\. In the list of non-Government (NG) Footnotes, revise footnotes NG149
and NG159.

The revisions and additions read as follows:

**§ 2.106 Table of Frequency Allocations.**

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

![](media/image1.jpeg){width="5.15625in" height="8.502083333333333in"}

INTERNATIONAL FOOTNOTES

\* \* \* \* \*

I. New "S" Numbering Scheme

\* \* \* \* \*

S5.293 [Different category of servic]{.underline}e: in Canada, Chile,
Colombia, Cuba, the United States, Guyana, Honduras, Jamaica, Mexico,
Panama and Peru, the allocation of the bands 470-512 MHz and 614-806 MHz
to the fixed and mobile services is on a primary basis (see No. S5.33),
subject to agreement obtained under No. S9.21. In Argentina and Ecuador,
the allocation of the band 470-512 MHz to the fixed and mobile services
is on a primary basis (see No. S5.33), subject to agreement obtained
under No. S9.21.

\* \* \* \* \*

S5.296 [Additional allocation:]{.underline} in Germany, Austria,
Belgium, Cyprus, Denmark, Spain, Finland, France, Ireland, Israel,
Italy, Libya, Lithuania, Malta, Morocco, Monaco, Norway, the
Netherlands, Portugal, Syria, the United Kingdom, Sweden, Switzerland,
Swaziland and Tunisia, the band 470-790 MHz is also allocated on a
secondary basis to the land mobile service, intended for applications
ancillary to broadcasting. Stations of the land mobile service in the
countries listed in this footnote shall not cause harmful interference
to existing or planned stations operating in accordance with the Table
in countries other than those listed in this footnote.

S5.297 [Additional allocation:]{.underline} in Costa Rica, Cuba, El
Salvador, the United States, Guatemala, Guyana, Honduras, Jamaica and
Mexico, the band 512-608 MHz is also allocated to the fixed and mobile
services on a primary basis, subject to agreement obtained under No.
S9.21.

NON-GOVERNMENT (NG) FOOTNOTES

\* \* \* \* \*

NG149 The frequency bands 54-72 MHz, 76-88 MHz, 174-216 MHz, 470-512
MHz, 512-608 MHz, and 614-698 MHz are also allocated to the fixed
service to permit subscription television operations in accordance with
Part 73 of the rules.

\* \* \* \* \*

NG159 Full power analog television stations licensed and new digital
television (DTV) broadcasting operations in the band 698-806 MHz shall
be entitled to protection from harmful interference until the end of the
DTV transition period. Low power television and television translators
in the band 746-806 MHz must cease operations in the band at the end of
the DTV transition period. Low power television and television
translators in the band 698-746 MHz are secondary to all other
operations in the band 698-746 MHz.

APPENDIX B: Incumbent TV Operations

The following pages contain maps showing the Grade B contours of all
co-channel and adjacent channel TV stations on Channels 52-59 in the
United States.

Maps Showing the Following are Attached:

Channels 52-59: DTV and NTSC Incumbents: Grade B Contours

Channels 52-59: DTV and NTSC Incumbents: Adjacent and Co-Channel
Protection Zones

Channel 52: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 53: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 54: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 55: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 56: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 57: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 58: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channel 59: DTV and NTSC Incumbents: Adjacent and Co-Channel Protection
Zones

Channels 52-59: LPTV Stations

![](media/image2.png){width="5.208333333333333in"
height="3.4791666666666665in"}

![](media/image3.png){width="5.208333333333333in"
height="3.3958333333333335in"}

![](media/image4.png){width="5.84375in" height="3.5520833333333335in"}

![](media/image5.png){width="5.677083333333333in"
height="3.5104166666666665in"}

![](media/image6.png){width="5.75in" height="3.6145833333333335in"}

![](media/image7.png){width="5.708333333333333in"
height="3.4895833333333335in"}

![](media/image8.png){width="5.6875in" height="3.4583333333333335in"}

![](media/image9.png){width="5.697916666666667in"
height="3.4583333333333335in"}

![](media/image10.png){width="5.71875in" height="3.53125in"}

![](media/image11.png){width="5.635416666666667in"
height="3.4583333333333335in"}

![](media/image12.png){width="6.250694444444444in"
height="4.368055555555555in"}

APPENDIX C: Initial Regulatory Flexibility Analysis

1.  As required by the Regulatory Flexibility Act ("RFA"),[^291] the
    Commission has prepared this Initial Regulatory Flexibility Analysis
    ("IRFA") of the possible significant economic impact on small
    entities by the policies and rules proposed in this Notice of
    Proposed Rulemaking ("Notice"), GN Docket No. 01-74. Written public
    comments are requested on this IRFA. Comments must be identified as
    responses to the IRFA and must be filed by the deadlines for
    comments on the Notice as provided above in paragraph 141. The
    Commission will send a copy of the Notice, including the IRFA, to
    the Chief Counsel for Advocacy of the Small Business Administration
    ("SBA").[^292] In addition, the Notice and IRFA (or summaries
    thereof) will be published in the Federal Register.[^293]

## Need for, and Objectives of, the Proposed Rules

150. This Notice is part of the Commission's plan to reclaim the 698-746
     MHz band ("698-746 MHz band" or "Lower 700 MHz Band"), currently
     used for television ("TV") Channels 52-59, for new commercial
     services as part of our transition of TV broadcasting from analog
     to digital transmission systems, consistent with the statutory
     directives enacted in the Balanced Budget Act of 1997.[^294] This
     Notice consists of two parts. First, the Notice proposes to
     reallocate the 698-746 MHz band, currently used for TV Channels
     52-59, from use solely for broadcast services to Fixed, Mobile, and
     Broadcast services. Second, the Notice proposes to adopt certain
     service, licensing, and competitive bidding rules for the 698-746
     MHz band.

151. The Notice proposes to reallocate the entire 48 megahertz of
     spectrum in the 698-746 MHz band to the fixed and mobile services,
     and retain the existing broadcast allocation. The Notice also seeks
     comment on whether the band should also be allocated for satellite
     services.

152. In this Notice, we also propose to license the 698-746 MHz
     commercial band under a flexible framework established in Part 27
     of the Commission's Rules. We expect that provisions of Part 27
     will be modified to reflect the particular characteristics and
     circumstances of services offered through the use of spectrum on
     these bands. Depending on the extent and nature of provisions in
     the service rules that enable broadcast services, these
     modifications may also reference or incorporate rules in other
     Parts of the Commission's Rules, such as Part 73 governing
     broadcast services. We believe that this flexible approach will
     encourage new and innovative services and technologies in this band
     without significantly limiting the range of potential uses for this
     spectrum.

153. The Notice proposes to apply the same small business definitions
     here that the Commission adopted for the Upper 700 MHz Band. In
     particular, the Notice proposes 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. The Notice reflects the
     Commission's belief that the services that will be deployed in this
     band will have similar capital requirements to the commercial
     services in the Upper 700 MHz Band, and thus proposes to apply the
     same small business definitions. The Notice also observes that new
     licensees both in this band and the Upper 700 MHz Band may be
     presented with similar issues and costs, including those involved
     in relocating incumbents and developing markets, technologies, and
     services. The Notice also seeks alternative standards proposals,
     and specifically seeks comment on whether we should adopt an
     additional definition for entities with average annual gross
     revenues for the three preceding years of not more than \$3
     million.[^295]

154. Among our principal objectives in this proceeding are: (1) to
     license these commercial spectrum blocks through competitive
     bidding, as directed by the Balanced Budget Act of 1997; (2) to
     accommodate the introduction of new uses of spectrum and the
     enhancement of existing uses; (3) to implement the Section 303(y)
     requirement that flexible use allocations not create harmful
     interference or discourage investment; (4) to facilitate the
     awarding of licenses to entities that value them the most. The
     Commission seeks to develop a regulatory plan for these commercial
     spectrum blocks that will allow for efficient licensing and
     intensive use of the band, eliminate unnecessary regulatory
     burdens, enhance the competitive potential of the band, and provide
     a wide variety of radio services to the public.

## Legal Basis for Proposed Rules

155. This action is authorized under Sections 1, 2, 4(i), 7, 10, 201,
     202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 316, 319,
     324, 331, 332, 333, 336, 337, 614 and 615 of the Communications Act
     of 1934, 47 U.S.C. §§ 151, 152, 154(i), 157, 160, 201, 202, 208,
     214, 301, 302a, 303, 307, 308, 309, 310, 311, 316, 319, 324, 331,
     332, 333, 336, 337, 534, 535.

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

156. The RFA directs agencies to provide a description of, and, where
     feasible, an estimate of the number of small entities to which the
     rule will apply or an explanation of why no such estimate is
     available.[^296] The RFA generally defines the term "small entity"
     as having the same meaning as the terms "small business," "small
     organization," and "small governmental jurisdiction" under section
     3 of the Small Business Act^.^[^297] In addition, the term "small
     business" has the same meaning as the term "small business concern"
     under the Small Business Act.[^298] Under the Small Business Act, a
     "small business concern" is one which: (1) is independently owned
     and operated; (2) is not dominant in its field of operation;
     and (3) satisfies any additional criteria established by the
     SBA.[^299] According to SBA reporting data, there were
     approximately 4.44 million small business firms nationwide in
     1992.[^300] A small organization is generally "any not-for-profit
     enterprise which is independently owned and operated and is not
     dominant in its field."[^301] Nationwide, as of 1992, there were
     approximately 275,801 small organizations.[^302] "Small
     governmental jurisdiction" generally means "governments of cities,
     counties, towns, townships, villages, school districts, or special
     districts, with a population of less than 50,000."[^303] As of
     1992, there were approximately 85,006 local governments in the
     United States.[^304] This number includes 38,978 counties, cities,
     and towns; of these, 37,566, or 96 percent, have populations of
     fewer than 50,000.[^305] The Census Bureau estimates that this
     ratio is approximately accurate for all governmental entities.
     Thus, of the 85,006 governmental entities, we estimate that 81,600
     (96 percent) are small entities. Below, we further describe and
     estimate the number of small entity licensees and regulatees that
     may be affected by the proposed rules, if adopted.

157. The proposals in this Notice affect applicants who wish to provide
     services in the 698-746 MHz band. The Notice proposes to apply the
     same small business definitions here that the Commission adopted
     for the Upper 700 MHz Band. In particular, the Notice proposes 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.[^306] The Notice reflects the Commission's belief that the
     services that will be deployed in this band will have similar
     capital requirements to the commercial services in the Upper 700
     MHz Band, and thus proposes to apply the same small business
     definitions. The Notice also observes that new licensees both in
     this band and the Upper 700 MHz Band may be presented with similar
     issues and costs, including those involved in relocating incumbents
     and developing markets, technologies, and services. The Notice also
     seeks alternative standards proposals, which consider the impact of
     our band plan on small business size standards. The Notice
     specifically seeks comment on whether we should adopt an additional
     definition for entities with average annual gross revenues for the
     three preceding years of not more than \$3 million.

158. The Commission used these same small business size definitions for
     Blocks C and F broadband PCS licensees.[^307] This regulation
     defining "small business" and "very small business" in the context
     of broadband PCS auctions has been approved by the SBA.[^308] The
     Commission has also adopted this same definition for 746-764 and
     776-794 MHz applicants.[^309]

159. The Commission, however, has not yet determined or proposed how
     many licenses will be awarded, nor will it know how many entities
     will seek small business or very small business status until the
     auction process begins. Even after that, the Commission will not
     know how many licensees will partition their license areas or
     disaggregate their spectrum blocks, if partitioning and
     disaggregation are allowed. In view of our lack of knowledge of the
     entities which will seek licenses in the 698-746 MHz band, we
     therefore assume that, for purposes of our evaluations and
     conclusions in the IRFA, all of the prospective licenses are small
     entities, as that term is defined by the SBA or our proposed
     definitions for these bands.

160. **Wireless services.** The policies and rules proposed in the
     Notice would affect all small entities that seek to acquire
     licenses in wireless services in the Lower 700 MHz Band currently
     used for television broadcasts on Channels 52-58, or are incumbent
     television broadcasters on Channels 52-58.[^310] As noted *supra*,
     we propose to use the small and very small business size standard
     adopted in the PCS proceeding.[^311] No channelization plan or
     licensing plan has been proposed or adopted for the Lower 700 MHz
     Band. Therefore, no reasonable estimate can be made at this time of
     the potential number of small entities that might become licensees
     in the Lower 700 MHz Band.[^312]

161. **Television Broadcast.** The SBA defines a television broadcasting
     station as a small business where it is independently owned and
     operated, is not dominant in its field of operation, and has no
     more than \$10.5 million in annual receipts.[^313] Television
     broadcasting stations consist of establishments primarily engaged
     in broadcasting visual programs by television to the public, except
     cable and other pay television services.[^314] Included in this
     industry are commercial, religious, educational, and other
     television stations.[^315] Also included are establishments
     primarily engaged in television broadcasting and which produce
     taped television program materials.[^316] There were 1,509
     television stations operating in the nation in 1992, of which 1,155
     produced less than \$10.0 million in revenue (76.5 percent).[^317]
     As of May 31, 1998, official Commission records indicate that 1,579
     full power television stations, 2,089 low power television
     stations, and 4,924 television translator stations were
     licensed.[^318] Using the percentage of television broadcasting
     licensees that were small entities in 1992 (76.5 percent), we
     conclude that there are approximately 1,208 full power television
     stations that are small entities.

162. The rules may affect approximately 1,663 television stations,
     approximately 1,281 of which are considered small businesses.[^319]
     The proposed rules will affect some 12,717 radio stations,
     approximately 12,209 of which are small businesses.[^320] These
     estimates may overstate the number of small entities because the
     revenue figures on which they are based do not include or aggregate
     revenues from non-television or non-radio affiliated companies.
     There are also 2,366 LPTV stations.[^321] Given the nature of this
     service, we will presume that all LPTV licensees qualify as small
     entities under the SBA definition.

163. **Auxiliary or Special Broadcast.** This service involves a variety
     of transmitters, generally used to relay broadcast programming to
     the public (through translator and booster stations) or within the
     program distribution chain (from a remote news gathering unit back
     to the station). The Commission has not developed a definition of
     small entities applicable to broadcast auxiliary licensees. The
     applicable SBA definition is that noted previously, under the SBA
     rules applicable to television broadcasting stations.[^322] The
     Commission estimates that there are approximately 2,700 translators
     and boosters. The FCC does not collect financial information on any
     broadcast facility, and the Department of Commerce does not collect
     financial information on these auxiliary broadcast facilities. We
     believe that most, if not all, of these auxiliary facilities could
     be classified as small businesses if viewed apart from any
     associated broadcasters. We also recognize that most commercial
     translators and boosters are owned by a parent station which, in
     some cases, would be covered by the revenue definition of small
     business entity discussed above. These stations would likely have
     annual revenues that exceed the SBA maximum to be designated as a
     small business (\$10.5 million for a TV station). Furthermore, they
     do not meet the Small Business Act's definition of a "small
     business concern" because they are not independently owned and
     operated.[^323]

164. We invite comment on this analysis.

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

165. Entities interested in acquiring initial licenses to use spectrum
     in the 698-746 MHz band will be required to submit short form
     applications to participate in an auction and high bidders will be
     required to apply for their individual licenses.[^324] The
     proposals under consideration in this item also include requiring
     commercial licenses to make showings that they are in compliance
     with construction requirements, file applications for license
     renewals, and make certain other filings as required by the
     Communications Act and Commission regulations. In addition to the
     general licensing requirements of Part 27 of the Commission's
     Rules, other parts may be applicable to commercial licensees,
     depending on the nature of service provided. For example,
     commercial licensees proposing to provide broadcast services on
     these bands may be required to comply with all or part of the
     broadcast-specific regulations in Part 73 of the Commission's
     Rules. We request comment on how these requirements can be modified
     to reduce the burden on small entities and still meet the
     objectives of the proceeding.

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

166. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its proposed approach, which may
     include the following four alternatives (among others): (1) the
     establishment of differing compliance or reporting requirements or
     timetables that take into account the resources available to small
     entities; (2) the clarification, consolidation, or simplification
     of compliance or reporting requirements under the rule for small
     entities; (3) the use of performance, rather than design,
     standards; and (4) an exemption from coverage of the rule, or any
     part thereof, for small entities.[^325]

167. In this Notice, we seek comment on a number of proposals and
     alternatives regarding the reallocation of, and service rules for,
     the 698-746 MHz band. This Notice seeks to adopt rules that will
     reduce regulatory burdens, promote innovative services and
     encourage flexible use of this spectrum. It opens up economic
     opportunities to a variety of spectrum users, including small
     businesses. We consider various proposals and alternatives partly
     because we seek to minimize, to the extent possible, the economic
     impact on small businesses.

168. In the Notice, we propose to reallocate the entire 48 megahertz of
     spectrum in the 698-746 MHz band to the fixed and mobile services,
     and to retain the existing broadcast allocation.[^326] The Notice
     tentatively concludes that service rules for this band should
     implement flexible use for the full range of proposed allocated
     services consistent with necessary interference requirements. We
     seek comment on how this approach will impact small entities.

169. We seek comment on various alternative licensing and service rules.
     The Notice seeks comment on a number of issues relating to how the
     Commission should craft service rules for this spectrum, that could
     have an impact on small entities. With respect to the size of
     spectrum blocks for licensees, we seek comment on whether we should
     license the spectrum as a single 48 megahertz block or as two or
     more blocks, and how the size of spectrum blocks would impact small
     entities.[^327] With respect to service areas, we propose a
     geographic area approach and seek comment on the appropriate size
     of service areas. We ask for comment on whether smaller geographic
     areas would better serve the needs of small entities.[^328] We
     propose to permit geographic partitioning and spectrum
     disaggregation, which promotes efficient spectrum use and economic
     opportunity for small business entities.[^329] We also seek comment
     on whether we should permit licensees to lease their licensed
     spectrum usage rights. Spectrum leasing could benefit small
     businesses because many different types of spectrum users
     (including small businesses) would be permitted to satisfy their
     spectrum needs without having to acquire a license or go through
     the Commission's procedures for assigning or transferring control
     of a license or a partial license through partitioning,
     disaggregation, or partial assignment.[^330] With respect to
     spectrum aggregation, we seek comment on whether we should abstain
     from counting the 698-746 MHz band against the Commercial Mobile
     Radio Services ("CMRS") spectrum cap, and how this would impact the
     marketplace, which includes the impact on small entities.[^331]

170. The Notice proposes the small business definitions for bidders in
     auctions of licenses in the counting the 698-746 MHz band: a "small
     business" would be defined as an entity with average annual gross
     revenues for the three preceding years not exceeding \$40 million,
     and a "very small business" would be defined as an entity with
     average annual gross revenues for the three preceding years not
     exceeding \$15 million. As discussed above, these definitions are
     consistent with the definitions the Commission applied to broadband
     PCS and the Upper 700 MHz Band. We have also sought comment on
     whether alternative approaches may be appropriate in light of the
     particular characteristics of this band. For example, the Notice
     seeks comment on whether to adopt an additional definition for
     entities with average annual gross revenues for the three preceding
     years of not more than \$3 million. The Notice also proposes to
     provide qualifying "small businesses" that participate in an
     auction with a bidding credit of 15%, and "very small businesses"
     with a 25% bidding credit. The Commission has previously found that
     bidding credits provide adequate opportunities for small businesses
     of varying sizes to participate in spectrum auctions.[^332] The
     Notice also seeks comment on whether, if we adopt a third small
     business definition for entities with average annual gross revenues
     of not more than \$3 million for the past three years, the 35%
     bidding credit set out in Section 1.2110(f)(2)(i) should be made
     available to such entities. In addition, small business may combine
     any additional tribal lands bidding credits pursuant to Section
     1.2110(f)(3) of the rules with the proposed small business bidding
     credits.

171. The regulatory burdens contained in the Notice, such as filing
     applications on appropriate forms, are necessary in order to ensure
     that the public receives the benefits of innovative new services,
     or enhanced existing services, in a prompt and efficient manner. We
     will continue to examine alternatives in the future with the
     objectives of eliminating unnecessary regulations and minimizing
     any significant economic impact on small entities. We seek comment
     on significant alternatives commenters believe we should adopt.

## Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

172. None.

SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI

Approving in Part, Dissenting in Part

> *Re:* *Reallocation and Service Rules for the 698-746 MHz Spectrum
> Band (Television Channels 52-59), GEN Docket No. 01-74*

In 1997, the Commission adopted a comprehensive Table of Allotments for
the introduction of Digital Television (DTV) and concluded that, while
channel 60-69 spectrum could be recovered early, other reclaimed
spectrum would only be recovered "at the end of the transition
period."[^333] Today, the Commission suggests that we alter course by
proposing ways to promote early recovery of spectrum in channels 52-59.

My views expressed in the upper 700 MHz proceeding extend to this
Notice.[^334] I do not support a presumption that the public is better
served by loss of existing television service than by delay in receiving
new services. My convictions run even deeper here given the Commission's
previous commitment to preserve the lower 700 MHz band for broadcast
services until the end of the transition. I thus respectfully dissent
from the band clearing proposals.

The 1997 DTV Table of Allotment decision was based on sound principles
of spectrum management. The Commission could not locate all stations'
DTV channel allotments within the "core" broadcast spectrum (currently
channels 2-51), so it placed 165 DTV stations in channels 52-59 as a
transitional measure pending final placement within the core. The
Commission stated that "the public interest is best served by developing
a Table of DTV Allotments that meets the DTV spectrum needs of
broadcasters during the transition; facilitates the early recovery of
spectrum from channels 60-69; and also facilitates the eventual recovery
of \[other\] spectrum currently being used for analog broadcasting."
[^335] Consistent with this approach, pending applicants that were
either displaced from the core or from channels 60-69 were later allowed
to seek temporary refuge in this band as well.

Later in 1997, Congress mandated an auction of this spectrum by
September 30, 2002. In doing so, however, Congress did not suggest that
we encourage early recovery of the spectrum. To the contrary, although
the Commission had just announced that reclaimed spectrum would be
recovered at the end of the DTV transition, Congress proceeded to define
the end of the transition as 2006 or beyond.[^336]

With the auction date looming, however, the majority proposes policies
to promote band clearing in channels 52-59. Unless Congress directs this
agency otherwise, I do not believe we should change course. I support
the DTV Table of Allotment and the spectrum transition plan adopted in
1997. The DTV transition should be guided by sound principles of
spectrum management, not auction consequences.

In the end, these band clearing proposals may have little effect other
than fueling false expectations of available spectrum. Today, roughly
100 NTSC and 165 DTV incumbents are in channels 52-59. These proposals
alone are unlikely to clear substantial swaths of spectrum. Nonetheless,
my commitment to free, over-the-air broadcast services and our DTV
transition plan compel me to dissent from these proposals.

[^1]: *See* Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat.
    251 § 3003 (1997) (adding new Section 309(j)(14) to the
    Communications Act of 1934, as amended) ("BBA 97"); § 3007
    (uncodified, reproduced at 47 U.S.C. § 309(j) note 3).

[^2]: *See* 47 U.S.C. § 309(j)(14)(C)(ii).

[^3]: *Id*.

[^4]: *See id.* § 309(j)(14)(A)-(B). The DTV transition will end
    December 31, 2006, but may be extended in some markets pursuant to
    Section 309(j)(14)(B) as follows:

    > The Commission shall extend the date \[of the DTV transition
    > period\] for any station that requests such extension in any
    > television market if the Commission finds that --
    >
    > \(i\) one or more of the stations in such market that are licensed
    > to or affiliated with one of the four largest national television
    > networks are not broadcasting a digital television service signal,
    > and the Commission finds that each such station has exercised due
    > diligence and satisfies the conditions for an extension of the
    > Commission's applicable construction deadlines for digital
    > television service in that market;

    \(ii\) digital-to-analog converter technology is not generally
    available in such market; or

    > \(iii\) in any market in which an extension is not available under
    > clause (i) or (ii), 15 percent or more of the television
    > households in such market -- (I) do not subscribe to a
    > multichannel video programming distributor (as defined in section
    > 602) that carries one of the digital television service
    > programming channels of each of the television stations
    > broadcasting such a channel in such market; and (II) do not have
    > either -- (a) at least one television receiver capable of
    > receiving the digital television service of the television
    > stations licensed in such market; or (b) at least one television
    > receiver of analog television service signals equipped with
    > digital-to-analog converter technology capable of receiving the
    > digital television service signals of the television stations
    > licensed in such market.

[^5]: *See id*. § 309(j)(14)(B)

[^6]: *See* BBA 97, *supra* note 1, §§ 3003, 3007.

[^7]: *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, ¶ 80 (1997) (*DTV
    Sixth Report and Order*).

[^8]: *See* 47 U.S.C. § 309(j)(3)(A)-(E).

[^9]: *Id*. § 309(j)(4). We must also consider other factors, including
    payment schedules, performance requirements, the use of bidding
    preferences, and the use of a reserve price or minimum bid.

[^10]: *See id.* § 303(y)(2).

[^11]: *Id*.

[^12]: *See generally* Advanced Television Systems and Their Impact upon
    the Existing Television Broadcast Service, MM Docket No. 87-268*,
    Second Memorandum Opinion and Order on Reconsideration of the Fifth
    and Sixth Report and Orders*, 14 FCC Rcd 1348 (1998) (*DTV Second
    MO&O of the Fifth and Sixth Report and Orders*); Advanced Television
    Systems and Their Impact upon the Existing Television Broadcast
    Service, MM Docket No. 87-268, *Memorandum Opinion and Order on
    Reconsideration of the Sixth Report and Order*, 13 FCC Rcd 7418
    (1998) (*DTV MO&O of the Sixth Report and Order*); Advanced
    Television Systems and Their Impact upon the Existing Television
    Broadcast Service, MM Docket No. 87-268, *Memorandum Opinion and
    Order on Reconsideration of the Fifth Report and Order*, 13 FCC Rcd
    6860 (1998) (*DTV MO&O of the Fifth Report and Order*); *DTV Sixth
    Report and Order*, 12 FCC Rcd 14588; Advanced Television Systems and
    Their Impact upon the Existing Television Broadcast Service, MM
    Docket No. 87-268, *Fifth Report and Order*, 12 FCC Rcd 12809 (1997)
    (*DTV Fifth Report and Order*) (collectively *DTV Proceeding*).

[^13]: *See, e.g., DTV Fifth Report and Order*, 12 FCC Rcd at 12812-13,
    ¶ 8.

[^14]: *See generally id*. at 12848-51, ¶¶ 94-100; *DTV Sixth Report and
    Order*, 12 FCC Rcd at 14590-93, ¶¶ 1-7.

[^15]: The DTV transmission system is more spectrally efficient because
    it allows DTV stations to provide the same geographic coverage as an
    analog station, but with significantly less power, and because it
    precludes the use of the same and other channels at nearby locations
    to a lesser extent than for analog television transmissions.
    DTV-to-DTV protection requirements are limited to co-channel and
    first adjacent channel protection while analog-to-analog involves
    protection to stations operating on a number of other related
    channels as well. As a result, the DTV transmission system allows
    stations to be allotted with reduced related channel protection for
    UHF receivers. The UHF related channel protection requirements for
    analog service are set forth in Section 73.698 of the Commission's
    rules. *See* 47 C.F.R. § 73.698.

[^16]: *DTV Sixth Report and Order,* 12 FCC Rcd at 14590, ¶ 1. *See also
    id.* at 14624-25, ¶ 76 ("\[W\]e believe that the public interest is
    best served by developing a Table of DTV Allotments that meets the
    DTV spectrum needs of broadcasters during the transition;
    facilitates the early recovery of spectrum from channels 60 to 69;
    and also facilitates the eventual recovery of 138 MHz of spectrum
    currently being used for analog broadcasting.").

[^17]: *See* *id.* at 14626, ¶ 79.

[^18]: *See* Reallocation of Television Channels 60-69, the 746-806 MHz
    Band, ET Docket No. 97-157, *Notice of Proposed Rulemaking*, 12 FCC
    Rcd 14141, 14142, ¶ 3 (1997) (*Upper* *700 MHz Reallocation
    Notice*).

[^19]: *Id*.

[^20]: *See* BBA 97 *supra* note 1.

[^21]: *See* *generally* *Upper* *700 MHz Reallocation Notice,* 12 FCC
    Rcd 14141.

[^22]: *See* 700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced, *Public Notice*, DA 00-2154 (rel. Sep. 25, 2000); 700 MHz
    Guard Bands Auction Closes: Winning Bidders Announced, *Public
    Notice*, DA 01-178 (rel. Feb. 22, 2001).

[^23]: Auction of Licenses for the 747-762 and 777-792 MHz Bands
    Postponed Until September 12, 2001, *Public Notice*, Report No.
    AUC-01-31-A, DA 01-266 (rel. Jan. 31, 2001).

[^24]: *See* *DTV Sixth Report and Order*, 12 FCC Rcd at 14590, ¶ 1.

[^25]: *See* *id.* at 14609, ¶ 37. The NTSC incumbents and pending
    applications on Channels 52-59 include 89 licenses, 12 construction
    permits, and applications and allotment petitions for 57 new
    stations. The DTV incumbents and allotment petitions on Channels
    52-59 include 17 licenses, 95 construction permits, and 53
    applications. The LPTV incumbents and pending applications on
    Channels 52-59 include 835 licensees, 244 construction permits, and
    607 applications.

[^26]: The BBA 97 directed the Commission to reallocate certain portions
    of the Upper 700 MHz spectrum from broadcast use to commercial use
    by December 31, 1997, *see* 47 U.S.C. § 337(a) (as added by § 3004
    of the BBA 97), but not to commence competitive bidding for the
    commercial licenses on the reallocated spectrum before January 1,
    2001, (*see* 47 U.S.C. § 337(b)(2). That deadline was subsequently
    accelerated. *See* Consolidated Appropriations Act, 2000, Pub. L.
    No. 106-113, 113 Stat. 2502, app. E, § 213; 145 Cong. Rec. H12493-94
    (Nov. 17, 1999) ("Consolidated Appropriations Act"). By contrast,
    the statutory deadline of September 30, 2002 has remained unchanged
    since it was first enacted in the BBA 97. *See* 47 U.S.C. §
    309(j)(14)(C)(ii); *see also* BBA 97 § 3007 (reproduced at 47 U.S.C.
    § 309(j) note 3).

[^27]: *See* *DTV MO&O of the Sixth Report and Order*, 13 FCC Rcd at
    7435-36, ¶ 42.

[^28]: *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, *Third Report and Order*, FCC 01-25 (rel. Jan. 23, 2001)
    (*Upper 700 MHz Third Report and Order*); Service Rules for the
    746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 99-168, *Second Memorandum Opinion
    and Order*, FCC 01-2 (rel. Jan. 12, 2001) (*Upper 700 MHz Second
    MO&O*); 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, *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, FCC 00-224 (rel. June 30, 2000) (*Upper 700 MHz MO&O
    and FNPRM*); Service Rules for the 746-764 and 776-794 MHz Bands,
    and Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *Second Report and Order*, 15 FCC Rcd 5299 (2000) (*Upper
    700 MHz Second Report and Order*); Service Rules for the 746-764 and
    776-794 MHz Bands, and Revisions to Part 27 of the Commission's
    Rules, WT Docket No. 99-168, *First Report and Order*, 15 FCC Rcd
    476 (2000*) (Upper 700 MHz First Report and Order*); 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) (collectively "Upper 700 MHz
    proceeding").

[^29]: *See generally* Principles for Reallocation of Spectrum to
    Encourage the Development of Telecommunications Technologies for the
    New Millennium, *Policy Statement*, 14 FCC Rcd 19868 (1999)
    (*Spectrum Reallocation Policy Statement*); Principles for Promoting
    the Efficient Use of Spectrum by Encouraging the Development of
    Secondary Markets, *Policy Statement*, FCC 00-401 (rel. Dec. 1,
    2000) (*Secondary Markets Policy Statement*).

[^30]: *See, e.g.*, Redevelopment of Spectrum to Encourage Innovation in
    the Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *First Report and Order and Third Notice of Proposed Rulemaking*, 7
    FCC Rcd 6886 (1992) (relocation of 2 GHz fixed microwave services to
    available frequencies in higher bands or alternative media);
    Amendment of Section 2.106 of the Commission's Rules to Allocate
    Spectrum at 2 GHz for Use by the Mobile-Satellite Service, ET Docket
    No. 95-18, *Second Report and Order and Second Memorandum Opinion
    and Order*, 15 FCC Rcd 12315 (2000) (reducing spectrum allocation
    for Broadcast Auxiliary Service from 120 megahertz to a total of 85
    megahertz at 2025-2110 MHz).

[^31]: *See* 47 C.F.R. § 2.106 note NG128.

[^32]: *See* *id.* § 2.106 note NG149.

[^33]: *Id.*

[^34]: *Id.* § 2.106 note S5.293.

[^35]: *See* *Spectrum Reallocation Policy Statement,* 14 FCC Rcd at
    19879-80, ¶ 25.

[^36]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Notice of
    Proposed Rulemaking*, FCC 00-455 (rel. Jan. 5, 2001) app. D (*3G
    Notice*).

[^37]: *Id.* at ¶ 38.

[^38]: *See International Telecommunications Union Final Acts of the
    World Radiocommunication Conference* (*WRC-2000*), Istanbul, 2000.

[^39]: Proposed rule changes to the Table of Frequency Allocations are
    set forth in Appendix A to this Notice.

[^40]: *See, e.g.,* *supra* para. 4.

[^41]: This will include both full power and Class A low power
    television stations. Class A is a subset of low power television
    defined by the Community Broadcast Protection Act of 1999.

[^42]: *See, e.g.*, Broadcast Corporation of Georgia (WVEU-TV) Atlanta,
    Georgia, for Authority to Resume Full Power Operations, *Memorandum
    Opinion and Order*, 55 Rad. Reg. 2d (P&F) 854 (Mar. 8, 1984).

[^43]: *See, e.g.,* *DTV Sixth Report and Order*, 12 FCC Rcd at 14595,
    14627, 14652-53, ¶¶ 11, 81, 141-42.

[^44]: *See DTV MO&O of the Sixth Report and Order*, 13 FCC Rcd at
    7465-66, ¶ 116.

[^45]: *See* Establishment of a Class A Television Service, MM Docket
    No. 00-10, *Report and Order*, 15 FCC Rcd 6355, 6395-96, ¶ 100
    (2000).

[^46]: 47 U.S.C. § 337(e)(2).

[^47]: *See* *DTV Sixth Report and Order*, 12 FCC Rcd at 14652-53, ¶
    142.

[^48]: *See* Reallocation of Television Channels 60-69, The 746-806 MHz
    Band, ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953,
    22966, ¶ 27 (1998) (*Upper 700 MHz Reallocation Order*).

[^49]: The International Telecommunication Union ("ITU") is currently
    studying whether additional spectrum can be made available for use
    by systems in the mobile satellite service, and this matter is on
    the agenda for the WRC in 2003. *See* ITU Resolution 214 (Rev.
    WRC-2000), "Sharing studies relating to consideration of the
    allocation of bands below 1 GHz to the non-geostationary
    mobile--satellite service" (urging studies on sharing between
    non-geostationary mobile satellite and other services in frequencies
    below 1 GHz); ITU Resolution 800 (WRC-2000), "Agenda for the 2003
    World Radiocommunication Conference," *resolves* 1.20; *cf.* ITU
    Resolution 728 (Rev. WRC-2000), "Studies relating to consideration
    of allocations in the band 470-862 MHz to non-geostationary
    mobile-satellite services." *See also* ITU Radio Regulations S5.311.

[^50]: 47 U.S.C. § 309(j)(14)(C).

[^51]: *See* *Open-Market Reorganization for the Betterment of
    International Telecommunications Act*, Pub. L. No. 106-180, 114
    Stat. 48 (2000) ("ORBIT Act"). Specifically, Section 647 of the
    ORBIT Act provides:

    > Notwithstanding any other provision of law, the Commission shall
    > not have the authority to assign by competitive bidding orbital
    > locations or spectrum used for the provision of international or
    > global satellite communications services. The President shall
    > oppose in the International Telecommunication Union and in other
    > bilateral and multilateral fora any assignment by competitive
    > bidding of orbital locations and or spectrum used for provision of
    > such services.

[^52]: *Cf*. Amendment of the Commission's Rules with Regard to the
    3650-3700 MHz Government Transfer Band, ET Docket No. 98-237, *First
    Report and Order and Second Notice of Proposed Rulemaking*, FCC
    00-363 (rel. Oct. 24, 2000) (*3650-3700 MHz First Report and
    Order*).

[^53]: *See supra* para. 2.

[^54]: Maps showing the Grade B contours of all co-channel and adjacent
    channel TV stations on Channels 52-59 in the United States are set
    forth in Appendix B to this Notice.

[^55]: *See* *Upper 700 MHz Reallocation Order*, 12 FCC Rcd at 22969, ¶
    35.

[^56]: 47 C.F.R. § 73.3598.

[^57]: *See* Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service, MM Docket No. 87-268, *Sixth
    Further Notice of Proposed Rule Making*, 11 FCC Rcd 10968 (1996)
    *(DTV Sixth Further Notice)*. The adoption date of this Notice (July
    25, 1996) was the last opportunity to file petitions to add analog
    channels to the TV Table of Allotments. The application filing
    deadline (September 20, 1996) was established as 30 days after
    publication of the Notice in the Federal Register. Regarding these
    applications, we decided to continue our "cut-off" process for
    accepting competing applications. We also decided to continue the
    policy of considering requests for waiver of the 1987 freeze Order
    on a case-by-case basis. *See Order*, RM 5811, Mimeo No. 4074 (rel.
    July 17, 1987).

[^58]: *See* Mass Media Bureau Announces Window Filing Opportunity for
    Certain Pending Applications and Allotment Petitions for New Analog
    TV Stations, *Public Notice*, 14 FCC Rcd 19559 (1999) (*Analog TV
    Filing PN*).

[^59]: *See* Window Filing Opportunity for Certain Pending Applications
    and Allotment Petitions for New Analog TV Stations Extended to July
    15, 2000, *Public Notice*, 15 FCC Rcd 4974 (2000).

[^60]: *See Analog TV Filing PN*, 14 FCC Rcd 19559.

[^61]: *Id*.; *DTV Second MO&O of the Fifth and Sixth Report and
    Order*s, 14 FCC Rcd at 1367-68, 1369, ¶¶ 40-42, 45; *Upper 700 MHz
    Reallocation Order*, 12 FCC Rcd at 22971-72, ¶ 40.

[^62]: *See Analog TV Filing PN*, 14 FCC Rcd 19559; *DTV Second MO&O of
    the Fifth and Sixth Report and Order*s, 14 FCC Rcd at 1367-68, 1369,
    ¶¶ 40-42, 45; *Upper 700 MHz Reallocation Order*, 12 FCC Rcd at
    22971-72, ¶ 40.

[^63]: *DTV Sixth Report and Order,* 12 FCC Rcd at 14590, ¶ 1.

[^64]: If granted, a new station would be grandfathered under the
    existing broadcast allocation and service rules and would be
    afforded the same protection as existing NTSC stations, *i.e.,* new
    services would have to protect the TV broadcast station until the
    end of the transition. Any of the pending applications granted would
    have no paired allotment for a DTV channel and would be required to
    cease analog operations at the end of the DTV transition period.
    These NTSC stations could also initially operate as digital stations
    or convert to DTV service during the transition. In either case, the
    Commission would need to identify in-core relocation channels for
    their continued operation with DTV service after the transition.
    *See* *DTV MO&O of the Fifth Report and Order,* 13 FCC Rcd at
    6864-66, ¶¶ 10-16. Any grant made during the pendency of this
    proceeding will, however, be conditioned on the outcome of this
    proceeding.

[^65]: 47 U.S.C. § 309(j)(14).

[^66]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 532-33,
    ¶ 141; *see also Upper 700 MHz MO&O and FNPRM* at ¶ 57 n.111.

[^67]: Fourteen stations are located in the continental United States
    and six stations are located in Puerto Rico.

[^68]: *See* Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television, MM Docket No. 00-39, *Report and
    Order and Further Notice of Proposed Rulemaking*, FCC 01-24 (rel.
    Jan. 19, 2001) (establishing election date of December 31, 2004 for
    commercial stations and December 31, 2005 for non-commercial
    stations) (*DTV Periodic Review Order*).

[^69]: *Id.*

[^70]: *See* BBA 97 § 3004 (adding new § 337(e)(1) of the Communications
    Act).

[^71]: *See* H.R. Conf. Rep. No. 105-217, 105^th^ Cong., 1^st^ Sess. at
    580; 143 Cong. Rec. H6029 (daily ed. July 29, 1997).

[^72]: *See Upper 700 MHz Reallocation Order*, 12 FCC Rcd at 22967, ¶
    29.

[^73]: *See* BBA 97 § 3004 (adding new § 337(e)(2) to the Communications
    Act).

[^74]: *See DTV Sixth Report and Order*, 12 FCC Rcd at 14652-57, ¶¶
    141-47.

[^75]: *Id*.

[^76]: *Id.* at 14671, ¶ 182.

[^77]: The Commission ended filing opportunities for new NTSC stations
    effective September 20, 1996. *See supra* para. 22. Amendments to
    certain of these applications and allotment petitions to change
    channels, filed prior to the freeze were accepted until July 15,
    2000. All requests for new DTV allotments must be filed for in-core
    channels. However, initially eligible DTV broadcasters are permitted
    to seek modified allotments, including Channels 52-59. *See* 47
    C.F.R. § 73.622(a). Not included in the counts above are four
    petitions for NTSC assignments, which have requested to convert
    their station proposals.

[^78]: *See DTV Sixth Report and Order*, 12 FCC Rcd at 14626-27, ¶ 80.

[^79]: *See* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State, and Local Public Safety
    Agency Communications Requirements through the Year 2010, WT Docket
    No. 96-86, *First Report and Order and Third Notice of Proposed
    Rulemaking*, 14 FCC Rcd 152, 221, ¶ 152 (1998) (*Public Safety
    Service Rule Order*).

[^80]: *Id.*

[^81]: In terms of miles, if everything else is the same, a 40 dB D/U
    ratio rather than a 50 dB D/U ratio allows base stations to be
    located approximately 48.3 km (30 miles) closer to a co-channel TV
    station. *See* 47 C.F.R. § 90.309 tbls. A & B.

[^82]: *See* Development of Operational, Technical and Spectrum
    Requirements For Meeting Federal, State, and Local Public Safety
    Agency Communications Requirements through the Year 2010, WT Docket
    No. 96-86, *Second Notice of Proposed Rulemaking*, 12 FCC Rcd 17706,
    17801-805, ¶¶ 230-40.

[^83]: *See Public Safety Service Rule Order*, 14 FCC Rcd 152.

[^84]: *See id.* at 222-23, ¶ 155.

[^85]: *See DTV Sixth Report and Order*, 12 FCC Rcd at 14663-65, ¶¶
    163-65.

[^86]: *See id*.; *see also* 47 C.F.R. § 90.303(a) (for the areas where
    TV/land mobile sharing is currently permitted).

[^87]: *See* 47 C.F.R. § 90.305(a).

[^88]: *See id*. § 73.623(c)(2).

[^89]: *See id*. § 73.623(c)(3)(iii).

[^90]: A recently-signed Letter of Understanding ("LOU") with Canada
    recognizes U.S. plans to use this band for other than broadcasting
    services, and notes that Canada is independently considering a
    reduction of the spectrum in this band allocated to television. This
    LOU also specifically provides for non-broadcast allocations and
    services in the 746-806 MHz bands (Channels 60-69) by establishing
    criteria to protect DTV stations and analog TV stations established
    in accordance with the existing TV Agreement (Nov. 3, 1993 -- Jan.
    5, 1994).

[^91]: *See*, *e.g.*, 47 U.S.C. § 309(j)(3)(D) (Commission to promote
    efficient and intensive use of the electromagnetic spectrum).

[^92]: *See* *Upper 700 MHz Third Report and Order* at ¶ 3 (citing
    *Spectrum Reallocation Policy Statement*, 14 FCC Rcd 19868).

[^93]: *See* *Secondary Markets* *Policy Statement* at ¶ 8.

[^94]: *See* 47 U.S.C. § 309(j)(14)(A).

[^95]: *See* *Spectrum Reallocation Policy Statement*, 14 FCC Rcd at
    19879-80, ¶ 25; *see also* *DTV MO&O of the Fifth Report and Order,*
    13 FCC Rcd at 6887-88, ¶ 79; *DTV MO&O of the Sixth Report and
    Order,* 13 FCC Rcd at 7435-37, ¶¶ 42-45.

[^96]: *See Spectrum Reallocation Policy Statement*, 14 FCC Rcd at
    19879-80, ¶ 25.

[^97]: *See* *Upper 700 MHz Third Report and Order* at ¶ 37.

[^98]: *See infra* Part III.B.6.

[^99]: *See, e.g.,* 47 U.S.C. §§ 157, 309(j)(3)-(4).

[^100]: Although we do not make a specific proposal in this Notice
    concerning an allocation in this band for satellite services, we do
    seek comment on the issue. *See supra* Part III.A.1.e.

[^101]: *See* Statement of Policy on Establishing a
    Government-to-Government Relationship with Indian Tribes, *Policy
    Statement*, FCC 00-207 (rel. June 23, 2000) (*Tribal Government
    Policy Statement*).

[^102]: *See* *generally* *Spectrum Reallocation Policy Statement,* 14
    FCC Rcd 19868.

[^103]: *Id.* at 19868, ¶ 2.

[^104]: *Id.* at 19870, ¶ 9.

[^105]: *Id.* at 19879-80, ¶ 25.

[^106]: *See* 47 U.S.C. §303(y). This Notice seeks comment on the
    flexible use considerations in Section 303(y).

[^107]: *See* 47 U.S.C. § 309(j)(3)(A)-(B), (D).

[^108]: *See* 47 U.S.C. § 309(j)(3)(D).

[^109]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    483-87, ¶¶ 15-25.

[^110]: *See* 47 C.F.R. Part 73 (Broadcast Radio Services).

[^111]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    484-85, ¶17.

[^112]: *Id*.

[^113]: *Id.*

[^114]: *See* 47 U.S.C. § 309(j)(14)(C)-(D); 47 C.F.R. § 73.3555(b),
    (d). Because we did not permit the use of the spectrum by full power
    broadcasting in the Upper 700 MHz proceeding, we had no occasion to
    consider imposing any eligibility restrictions based on our
    broadcasting rules.

[^115]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    485-86, ¶ 19.

[^116]: *See* *id.* at 483 n.37. We noted that under the Act, the term
    "broadcasting" means the dissemination of radio communications
    intended to be received by the public, directly or by the
    intermediary of relay stations. *See* 47 U.S.C. § 153(6).

[^117]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 494, ¶
    43 n.95, 509, ¶ 81 n.188.

[^118]: *Cf.* *3650-3700 MHz First Report and Order*, *supra* note 52.

[^119]: *See* Section 706 of the Telecommunications Act of 1996, Pub. L.
    No. 104-104, 110 Stat. 153 § 706 (set forth at 47 U.S.C. § 157 nt.)

[^120]: Package bidding may take many forms. Under the design that the
    Wireless Telecommunications Bureau has developed for the upcoming
    700 MHz band auction (Auction No. 31), bidders are not restricted to
    placing bids on individual licenses, but may also place
    all-or-nothing bids on packages of licenses. *See* Auction of
    Licenses in the 747-762 and 777-792 MHz Bands Scheduled for
    September 6, 2000; Procedures Implementing Package Bidding For
    Auction No 31, *Public Notice*, 15 FCC Rcd 11526 (2000) (describing
    package bidding procedures for 700 MHz band auction). Under this
    approach, for example, a bidder desiring to inaugurate a nationwide
    service could bid on a package of licenses that covers the entire
    nation and not face the risk of winning only some of the desired
    licenses and paying more than the bidder values those licenses by
    themselves (without the other licenses needed to provide nationwide
    coverage).

[^121]: *See, e.g., infra* paras. 55-57 (describing geographic license
    areas for various broadband Commercial Mobile Radio Services
    ("CMRS")).

[^122]: In light of the variety of potential services that we envision
    will use this reallocated band, including emerging technologies or
    next-generation applications, the most desirable or efficient scale
    of service area may vary according to the business plan of the
    potential licensee. Therefore, some licensees may need smaller
    service areas. We tentatively conclude below to allow post-auction
    partitioning of licenses for bidders whose business plans require
    different size geographic areas than are adopted here. *See infra*
    Part III.B.3.g.

[^123]: *See infra* Part III.B.3.a.

[^124]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 500, ¶
    56. The six EAGs are based on Economic Areas ("EAs").

[^125]: In addition to the six EAGs, the Commission has used regional
    approaches to license spectrum in the 12 Regional Economic Areas
    ("REAs") and the 52 Major Economic Areas ("MEAs"). *See* Amendment
    of the Commission's Rules to Establish Part 27, the Wireless
    Communications Services ("WCS"), GN Docket No. 96-228, *Report and
    Order*, 12 FCC Rcd 10785, 10814-16, ¶¶ 54-60 (1997). REAs and MEAs
    are based on the 172 EAs, as modified by the Commission.

[^126]: The 172 EAs are defined by the U.S. Department of Commerce,
    while the three additional EA-like areas are defined by the
    Commission. The Commission has issued certain Specialized Mobile
    Radio ("SMR") licenses based on EAs.

[^127]: *See, e.g., Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    499, ¶55.

[^128]: *See infra* Part III.B.5.b.

[^129]: *See supra* Part III.B.1.a.

[^130]: *See also supra* Part III.B.1.b.

[^131]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    493-94, ¶¶ 40-42; *Upper 700 MHz MO&O and FNPRM* at ¶ 12.

[^132]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 494, ¶ 42.

[^133]: *Upper 700 MHz MO&O and FNPRM* at ¶ 10.

[^134]: *See* 47 U.S.C. § 309(j)(3)(D).

[^135]: *Upper 700 MHz MO&O and FNPRM* at ¶ 10.

[^136]: *See* 47 U.S.C. § 309(j)(3)(A), (D).

[^137]: An "out-of-band emission" is an "\[e\]mission on a frequency or
    frequencies immediately outside the necessary bandwidth which
    results from the modulation process, but excluding spurious
    emissions." 47 C.F.R. § 2.1(c).

[^138]: A "spurious emission" is an "\[e\]mission on a frequency or
    frequencies which are outside the necessary bandwidth and the level
    of which may be reduced without affecting the corresponding
    transmission of information. Spurious emissions include harmonic
    emissions, parasitic emissions, intermodulation products and
    frequency conversion products, but exclude out-of-band emissions."
    *Id.* § 2.1(c).

[^139]: The objective of most of the Commission's traditional
    interference control rules is to maintain, within a high
    probability, the ratios of the strength of the desired signal to the
    strength of the undesired or interfering signals (*i.e.*, D/U ratio)
    at any location on the outer boundary of a service area above
    pre-determined minimums.

[^140]: *See, e.g.,* 47 C.F.R. Part 24 (Personal Communications
    Services); 47 C.F.R. Part 27 (Miscellaneous Wireless Communications
    Service).

[^141]: Generally, these are rules that address out-of-band emissions,
    which are intended to limit the potential for interference with
    services operating in other parts of the spectrum.

[^142]: Minimum D/U ratios, which are the basis for traditional FCC
    interference rules, are mathematically determined for each service
    by considering factors representing the required quality of service,
    the specific type of modulation and demodulation employed, the
    emission bandwidth, and anticipated propagation path variables
    (*e.g.,* fading). However, these necessary factors are not specified
    in a flexible use service.

[^143]: *See* 47 C.F.R. § 22.907.

[^144]: Service may be provided without harmful interference in
    intersystem border areas if licensees, each with detailed knowledge
    of the particular service and technology that they have decided to
    use, coordinate their spectrum usage near the border areas,
    especially where technologies and services differ.

[^145]: *See* 47 C.F.R. §§ 24.236, § 27.55.

[^146]: The use of a field strength limit does not necessarily prevent
    interference from occurring, but does allow licensees to have some
    idea of the worst-case undesired field strengths that could be
    encountered at the border of their systems.

[^147]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 515, ¶
    96.

[^148]: *Id.*

[^149]: *Id*. The field strength limit adopted therein does not apply to
    mobile stations.

[^150]: *Id.* at 515, ¶ 97. The choice of 40 dBμV/m was based on the
    Commission's previous use of that value for 800 MHz EA-based and 900
    MHz MTA-based SMR licensing. The Commission found that services
    likely to be provided in the 747-762 MHz and 777-792 MHz bands are
    similar to SMR and noted the proximity of those bands.

[^151]: *Id.* at 515, ¶ 97 n.225. The Commission determined that the
    predicted 40 dBμV/m field strength shall be calculated using Figure
    10 of Section 73.699 of the Commission's rules, 47 C.F.R. § 73.699,
    with a correction factor of minus 9 dB, for antenna height
    differential.

[^152]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 515, ¶ 97.
    Minimizing interference means reducing it to the lowest possible
    level.

[^153]: The field strength value could be scaled to account for the
    difference in effective area of a half-wavelength antenna for the
    frequency range involved. Using, for example, a scaling factor of 20
    log F would suggest that a field strength of 39 dBμV/m for the
    698-746 MHz band is comparable to 40 dBμV/m for the 747-762 MHz and
    777-792 MHz bands.

[^154]: 47 C.F.R. § 22.150.

[^155]: *See* *id*. § 22.907.

[^156]: *Id*. § 27.64.

[^157]: By full power television broadcasting, we mean a television
    broadcast station transmitting with more than 1000 Watts ERP. *See
    Upper 700 MHz First Report and Order*, 15 FCC Rcd at 484-85, ¶ 17
    n.43.

[^158]: This requirement is expressed in our rules as an attenuation
    formula, which is:

    A = 43 + 10 log P

    where A is the required minimum attenuation of the emission below
    the total in-channel transmitter power output power, expressed in
    deciBels (dB), and P is the total transmitter output power, in
    Watts. For very high powered transmitters, there may also be an
    alternative maximum attenuation requirement, for example 80 dB.

[^159]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 518, ¶
    103.

[^160]: The second harmonic frequency range of the Lower 700 MHz Band
    does not include the GPS band, as does the Upper 700 MHz Band. Thus,
    there does not appear to be a question of any impact on GPS in this
    proceeding.

[^161]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 519-20, ¶¶
    105-07.

[^162]: *See id.* at 519-20, ¶ 106; *see also Upper 700 MHz MO&O and
    FNPRM* at ¶¶ 21-27.

[^163]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    519-20, ¶ 106; *see also Upper 700 MHz MO&O and FNPRM* at ¶¶ 21-27.

[^164]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 521-22, ¶
    111.

[^165]: *See supra* para. 43.

[^166]: These existing requirements are found in 47 CFR §§ 1.1307(b),
    1.1310, 2.1091, 2.1093.

[^167]: *See supra* paras. 4, 14.

[^168]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 494, ¶ 43
    n.95 ("The provision of new broadcast-type services compliant with
    Part 27 technical standards does not alter the underlying nature of
    such services*, or the licensee's related regulatory and statutory
    obligations*.") (emphasis added). The *Upper 700 MHz First Report
    and Order* did not address the regulatory status of new
    broadcast-type services.

[^169]: *Upper 700 MHz MO&O and FNPRM* at ¶ 68 (stating that new 700 MHz
    broadcast licensees will be subject to the statutory provisions of
    the Communications Act governing broadcasting, but will be only be
    subject to the application of additional Commission regulations and
    policies in the context of specific service offerings).

[^170]: This discussion is limited to the question of whether different
    Commission-imposed regulations should apply to broadcasters
    depending on whether they are providing new broadcast-type services
    or full power broadcasting on the 698-746 MHz band. To the extent
    that a Lower 700 MHz licensee's services (either new broadcast-type
    services or full power broadcasting) fall within the statutory
    definition of broadcasting, they will be subject to the statutory
    provisions of the Communications Act governing broadcasting.

[^171]: *See supra* Part III.B.1.a.

[^172]: *See* 47 U.S.C. § 214(a).

[^173]: *See* Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets, WT Docket No.
    00-230, *Notice of Proposed Rulemaking*, FCC 00-402 (rel. Nov. 27,
    2000) (*Secondary Markets NPRM*).

[^174]: *Id*. at ¶ 22.

[^175]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 496,
    ¶ 47; *see also* 47 C.F.R. §§ 27.12, 27.302.

[^176]: *See* 47 U.S.C. § 310. We discuss foreign ownership restrictions
    below. *See infra* Part III.B.3.d.

[^177]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 497,
    ¶ 49.

[^178]: *See, e.g.,* 47 C.F.R. § 73.3555.

[^179]: In issuing a Notice of Apparent Liability to MCI for premature
    and/or unauthorized construction, the Commission stated: "Although
    not directly applicable to common carriers, the character
    qualifications standards adopted in the broadcast context can
    provide guidance in the common carrier area as well." MCI
    Telecommunications Corporation, Petition for Revocation of Operating
    Authority, *Order and Notice of Apparent Liability*, 3 FCC Rcd 509,
    515, ¶ 31 n.14 (1988).

[^180]: *See* 47 C.F.R. § 20.6.

[^181]: *See*, *e.g.,* *Upper 700 MHz First Report and Order*, 15 FCC
    Rcd at 497-98, ¶¶ 49-53.

[^182]: We purposely declined to adopt the alternative approach of
    applying a raised spectrum cap (*e.g.*, 55 or 60 MHz) because
    "\[t\]hat course would permit reconsolidation within the present
    \[broadband PCS, cellular, and SMR\] bands." *Id.* at 498, ¶ 53.

[^183]: *Id.* at 497, ¶ 51. In our 2000 biennial review of spectrum
    aggregation limits, we are considering an analytical framework to
    determine what, if any, constraints ought to apply to concentration
    of ownership in newly available spectrum bands. *See* 2000 Biennial
    Regulatory Review -- Spectrum Aggregation Limits for Commercial
    Mobile Radio Services, WT Docket No. 01-14, *Notice of Proposed
    Rulemaking*, FCC 01-28 (rel. Jan. 23, 2001).

[^184]: 47 U.S.C. § 310(a)-(b).

[^185]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 502,
    ¶ 63; *see also* 47 C.F.R. § 27.12.

[^186]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 503,
    ¶ 64. We noted, however, that, by establishing parity in reporting
    obligations, we do not establish a single substantive standard for
    compliance. Thus, we do not and would not disqualify an applicant
    requesting authorization exclusively to provide non-common carrier
    services from a license simply because its citizenship information
    would disqualify it from a common carrier license.

[^187]: *See* 47 U.S.C. § 307(c)(1); *see also* 47 C.F.R. § 73.1020(a).

[^188]: *See* 47 U.S.C. § 309(k).

[^189]: 47 C.F.R. § 27.13(a).

[^190]: *See* *id*. § 27.14(b). Section 27.14(b) states: "A renewal
    applicant involved in a comparative renewal proceeding shall receive
    a preference, commonly referred to as a renewal expectancy, which is
    the most important comparative factor to be considered in the
    proceeding, if its past record for the relevant license period
    demonstrates that: (1) The renewal applicant has provided
    "substantial" service during its past license term; and (2) The
    renewal applicant has substantially complied with applicable FCC
    rules, policies and the Communications Act of 1934, as amended."

[^191]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 504,
    ¶ 67.

[^192]: *Id.* We also adopted the same license term and renewal
    expectancy for the Guard Bands that we adopted for the 747-762 MHz
    and 777-792 MHz bands. *See Upper 700 MHz Second Report and Order*,
    15 FCC Rcd at 5331, ¶ 73.

[^193]: *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, *Errata*, DA 00-450 (rel. March 1, 2000) (*Upper 700 MHz
    Errata*).

[^194]: This date may be extended under particular circumstances set
    forth in 47 U.S.C. § 309(j)(14)(B). *See supra* note 4.

[^195]: *See* 47 C.F.R. § 27.13(b).

[^196]: This includes the license term extension until January 1, 2015
    for nonbroadcast licensees, as set forth in 47 C.F.R. § 27.13(b).

[^197]: 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*
    *id*. § 27.14(b)(1)-(2); *see also Upper 700 MHz First Report and
    Order,* 15 FCC Rcd at 504, ¶ 68.

[^198]: A comparative renewal proceeding is one in which an existing
    licensee is challenged by another applicant. The existing licensee
    must demonstrate sufficient reason for the Commission to renew its
    license for an additional license term rather than issue the license
    to another applicant. *See* 47 C.F.R. § 27.14(b); *see also*
    Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service, GN Docket No. 96-228, *Report and
    Order*, 12 FCC Rcd 10785, 10840, 10843-44, ¶¶ 106, 113 (1997) (*Part
    27 Report and Order*).

[^199]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 504,
    ¶ 68. *See also* 47 C.F.R. § 27.14(c), which requires an applicant's
    showing to include: (1) a description of current service in terms of
    geographic coverage and population served or links installed; (2) an
    explanation of the licensee's record of expansion, including a
    timetable for the construction of new base sites or links to meet
    changes in demand for service; (3) a description of the licensee's
    investments in its system; and, (4) copies of any Commission orders
    finding the licensee to have violated the Communications Act or any
    Commission rule or policy, and a list of any pending proceedings
    that relate to any matter described by the requirements for the
    renewal expectancy.

[^200]: *See* 47 U.S.C. § 309(k).

[^201]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 504, ¶
    68; *see also* 47 C.F.R. §§ 27.15(d), 27.324(b)(4).

[^202]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 504, ¶
    68; *see also* *Part 27 Report and Order*, 12 FCC Rcd at 10840, ¶
    106.

[^203]: *See* 47 C.F.R. § 27.14(a).

[^204]: *See Upper 700 MHz Errata*, *supra* note 193.

[^205]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 505, ¶
    70.

[^206]: *Id*.; *see also Part 27 Report and Order*, 12 FCC Rcd at
    10843-45, ¶¶ 111-115.

[^207]: *See* *Part 27 Report and Order*, 12 FCC Rcd at 10844, ¶ 113;
    *see also* Rulemaking to Amend Parts 1, 2, 21, 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    To Reallocate 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, 12660, ¶ 270 (1997) (*LMDS Second Report and Order*);
    *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505, ¶ 70.

[^208]: 47 U.S.C. § 309(j)(4)(B); *see* *id*. § 309(j)(3).

[^209]: *See* 47 U.S.C. § 309(j)(3)(D).

[^210]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 505, ¶
    70.

[^211]: *Id*.

[^212]: *See* 47 C.F.R. § 73.3598; *see also* 1998 Biennial Regulatory
    Review \-- Streamlining of Mass Media Applications, Rules, and
    Processes, MM Docket No. 98-43, *Report and Order*, 13 FCC Rcd
    23056, 23087-93, ¶¶ 77-90 (1998).

[^213]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 506,
    ¶ 74.

[^214]: *See* 47 U.S.C. § 309(j)(4)(C).

[^215]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 506, ¶
    74; *see also* Geographic Partitioning and Spectrum Disaggregation
    by Commercial Mobile Radio Services Licensees, *Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 21831, 21843-44,
    ¶¶ 13-17 (1996).

[^216]: *See* 47 C.F.R. § 27.15.

[^217]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at
    506-07, ¶ 75.

[^218]: *See* 47 C.F.R. § 27.15(b)(1).

[^219]: *Id*. § 27.15(c).

[^220]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at
    506-07, ¶ 75.

[^221]: *Id.*

[^222]: *Id.* at 507, ¶ 76; *see also* 47 C.F.R. § 27.15(e)(1).

[^223]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at
    507-08, ¶ 78; *see also* 47 C.F.R. § 27.15(e)(2).

[^224]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at
    509-12, ¶ 81-88.

[^225]: 47 U.S.C. § 160(a).

[^226]: *See* *id*. § 160.

[^227]: We note that our forbearance authority applies only "to a
    telecommunications carrier or telecommunications service, or class
    of telecommunications carriers or telecommunications services."
    *See* *id*. § 160(a).

[^228]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 513,
    ¶ 92.

[^229]: The Commission in the *DBS NPRM* proposed that direct broadcast
    satellite ("DBS") 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, 6924-925 (1998) (*DBS NPRM*).

[^230]: *See* *supra* paras. 1-2; *see also* 47 U.S.C. § 309(j)(14)(C).

[^231]: *See* 47 C.F.R. § 1.2101 *et. seq.* (Part 1, Subpart Q). The
    Commission has recently clarified and amended its general
    competitive bidding procedures for all auctionable services*. See*
    Amendment of Part 1 of the Commission's Rules \-- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Order on Reconsideration
    of the Third Report and Order, Fifth Report and Order, and Fourth
    Further Notice of Proposed Rule Making*, 15 FCC Rcd 15293 (2000))
    (*Part 1 Fifth Report and Order*). Among other things, this decision
    adopted a general "controlling interest" standard for making
    determinations of whether the gross revenues of an affiliate will be
    attributed to an applicant. *See id.* at 15323-27, ¶¶ 58-67.

[^232]: *Id*.

[^233]: *Id.* at 15331-34, ¶¶ 79-88. The Commission is also considering
    certain modifications to its rule prohibiting collusion among
    auction participants. *See Amendment of Part 1 of the Commission*'*s
    Rules \-- Competitive Bidding Procedures*, WT Docket No. 97-82,
    *Third Further Notice of Proposed Rule Making*, 14 FCC Rcd 21558
    (1999).

[^234]: *See* Amendment of Part 1 of the Commission's Rules -
    Competitive Bidding Procedures*, Third Report and Order and Second
    Further Notice of Proposed Rule Making*, 13 FCC Rcd 374, 448-49,
    454-55, ¶¶ 125, 139 (directing the Bureau to seek comment on
    specific mechanisms relating to auction conduct pursuant to the BBA
    97) (*Part 1 Third Report and Order*).

[^235]: *See* Procedures Implementing Package Bidding For Auction No.
    31, Bidder Seminar Scheduled For July 24, 2000, *Public Notice*, DA
    00-1486 (rel. July 3, 2000).

[^236]: *See* 47 U.S.C. § 309(j)(4)(D).

[^237]: *See* *id*. § 309(j)(3)(B).

[^238]: *See* 47 C.F.R. § 1.2110(a ). Although the Commission previously
    extended designated entity preferences to minority- and women-owned
    businesses, as well as to small businesses, following the Supreme
    Court's rulings in *Adarand Constructors, Inc. v. Pena*, 515 U.S.
    200 (1995), and *United States v. Virginia, et al*., 518 U.S. 515
    (1996), the Commission concluded that it would not be appropriate to
    adopt special provisions for minority-owned and women-owned
    businesses pending the development of a more complete record on the
    propriety of race- and gender-based provisions for future auctions.
    *See* *Part 1 Fifth Report and Order*, 15 FCC Rcd at 15318-20, ¶¶
    45-50 (discussing constitutional standards and governmental
    interests that would justify the use of race- or gender-based
    preferences).

[^239]: *See Part 1 Fifth Report and Order*, 15 FCC Rcd at 15319, ¶ 48;
    *see also* FCC Report to Congress on Spectrum Auctions, WT Docket
    No. 97-150, *Report*, FCC 97-353 at 29 (rel. Oct. 9, 1997) (finding
    that special provisions for small businesses also increase
    opportunities for minority- and women-owned businesses).

[^240]: *See supra* note 238. In this regard, we note that the
    Commission has recently hosted a public forum at which a series of
    studies examining the extent to which small entities and women- and
    minority-owned firms in the communications industry have encountered
    market entry barriers were presented. *See* Market Entry Barrier
    Studies Will Be Released At The Commission On Tuesday, December 12,
    2000, *Public Notice*, DA 00-2788 (rel. Dec. 8, 2000). Among those
    five studies are two that relate directly to wireless licensing and
    spectrum auctions policies: Ernst & Young, LLP, *FCC Econometric
    Analysis of Potential Discrimination: Utilization Ratios for
    Minority- and Women-Owned Companies in FCC Wireless Spectrum
    Auctions* (Dec. 5, 2000) (developing utilization ratios as a means
    of measuring the participation and success of minority- and
    women-owned businesses in the Commission's spectrum auctions); and
    William D. Bradford, Ph.D., *Discrimination in Capital Markets,
    Broadcast/Wireless Spectrum Service Providers and Auction Outcomes*
    (Dec. 5, 2000) (exploring whether and to what extent discrimination
    in capital markets may have affected applicants for Commission
    licenses). All five studies may be found in various formats on the
    Commission's Web site at http://www.fcc.gov/opportunity/meb_study/.
    *See also* Staff Executive Summary (Dec. 5, 2000) (outlining
    purposes and findings of market barrier studies); Studies Indicate
    Need to Promote Wireless & Broadcast License Ownership by Small,
    Women- and Minority-Owned Businesses, Office of Chairman William E.
    Kennard, *News Release,* (rel. Dec. 12, 2000) (recommending steps to
    promote diversity of license ownership and summarizing major
    findings of market barrier studies).

[^241]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, PP Docket No. 93-253, *Second Memorandum
    Opinion and Order*, 9 FCC Rcd 7245, 7269 ¶ 145 (1994).

[^242]: *See* *Part 1 Third Report and Order*, 13 FCC Rcd at 388, ¶ 18.

[^243]: *See* 47 C.F.R. § 27.502(a)(1)-(2); *see also* *Upper 700 MHz
    First Report and Order*, 15 FCC Rcd at 529-31, ¶¶ 131-36. These
    definitions are consistent with the Commission's approach in the
    broadband PCS services. *See* 47 C.F.R. § 24.720(b).

[^244]: In particular, five of the nine winning bidders in Auction Nos.
    33 and 38 (or just over 55%) claimed eligibility for bidding
    credits. Additional information on the results of these spectrum
    auctions may be obtained from the Commission's Web site at
    http://www.fcc.gov/wtb/auctions/.

[^245]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 530, ¶
    133.

[^246]: *See* *Part 1 Third Report and* Order, 13 FCC Rcd at 403-04, ¶
    47.

[^247]: *See* 47 C.F.R. § 1.2110(f)(2).

[^248]: *See* *Part 1 Third Report and* Order, 13 FCC Rcd at 404, ¶ 47.

[^249]: 47 C.F.R. § 1.2110(f)(2)(ii)-(iii).

[^250]: *Id*. § 1.2110(f)(2)(i).

[^251]: 47 U.S.C. § 309(b)-(c); *see also* *id*. § 309(d) (regarding
    petitions to deny).

[^252]: *Id*. § 309(j) note 3.

[^253]: Consolidated Appropriations Act, *supra* note 26, § 213(a)(5).

[^254]: 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, ¶ 98 (1997),
    *recon. pending*.

[^255]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 508, ¶
    80.

[^256]: *See* *supra* Part II.

[^257]: *DTV Sixth Further Notice*, 11 FCC Rcd at 10977, ¶ 18.

[^258]: *DTV Sixth Report and Order*, 12 FCC Rcd at 14609, ¶ 37.

[^259]: *See* 47 U.S.C. § 309(j)(14); *see also* *DTV MO&O of the Fifth
    Report and Order*, 13 FCC Rcd at 6887, ¶ 79.

[^260]: *See* 47 U.S.C. § 309(j)(14).

[^261]: *See* *id*. § 309(j)(14)(C).

[^262]: *See* *Upper 700 MHz* *MO&O and FNPRM*, *supra* note 28; *Upper
    700 MHz* *Third Report and Order*, *supra* note 28.

[^263]: *See* *Upper 700 MHz* *MO&O and FNPRM*, *supra* note 28; *Upper
    700 MHz* *Third Report and Order*, *supra* note 28.

[^264]: *See Spectrum Reallocation Policy Statement*, 14 FCC Rcd 19868.

[^265]: *See* *supra* Part III.A.2.

[^266]: In the *Upper 700 MHz MO&O and FNPRM*, we sought comment as to
    whether the regulations and mechanisms the Commission adopted in the
    Upper 700 MHz Proceeding to facilitate band clearing should also be
    employed in conjunction with the auction of spectrum currently used
    by Channels 52-59. *See Upper 700 MHz MO&O and FNPRM* at ¶ 105. We
    decided to defer that question to this proceeding, where that
    judgment could be better made after having gained some experience
    with voluntary band clearing mechanisms. *See Upper 700 MHz Third
    Report and Order* at ¶ 61.

[^267]: *See* *Upper 700 MHz MO&O and FNPRM* at ¶ 58.

[^268]: *Id.* at ¶¶ 60-61.

[^269]: *See* *id.* at ¶ 61; *see also* *Upper 700 MHz Third Report and
    Order* at ¶ 16.

[^270]: *See* *Upper 700 MHz* *MO&O and FNPRM* at ¶ 61; *see also Upper
    700 MHz* *Third Report and Order*, at ¶ 16.

[^271]: *See* *Upper 700 MHz* *MO&O and FNPRM* at ¶ 61; *see also Upper
    700 MHz* *Third Report and Order*, at ¶ 16.

[^272]: *See Upper 700 MHz Third Report and Order* at ¶ 16.

[^273]: *See id.* at ¶¶ 19-28.

[^274]: *See Upper 700 MHz Third Report and Order* at ¶ 41 (citing
    *Spectrum Reallocation Policy Statement*, 14 FCC Rcd at 19870, ¶ 9).

[^275]: As we explained in the *Upper 700 MHz Third Report and Order*,
    we expect that participants in any secondary auction would remain
    mindful of federal antitrust laws and our anti-collusion rules. *See
    Upper 700 MHz Third Report and Order* at ¶¶ 45-47.

[^276]: *See id.* at ¶ 42.

[^277]: *See* *Upper 700 MHz MO&O and FNPRM* at ¶ 104.

[^278]: *See id.* at ¶¶ 48, 53.

[^279]: *See, e.g.,* Carriage of Digital Television Broadcast Signals,
    CS Docket No. 98-120, *First Report and Order and Further Notice of
    Proposed Rulemaking*, FCC 01-22, ¶¶ 52-56 (rel. Jan. 23, 2001);
    WHDT-DT Channel 59, Stuart, Florida, Petition for Declaratory Ruling
    that Digital Broadcast Stations Have Mandatory Carriage Rights,
    CSR-5562-Z, *Memorandum Opinion and Order*, FCC 01-23, ¶¶ 12-15
    (rel. Jan. 23, 2001); Ancillary and Supplementary Use of Digital
    Television Capacity by Noncommercial Licensees, *Notice of Proposed
    Rule Making,* 14 FCC Rcd 537 (1998) (considering permissible DTV
    operations by noncommercial broadcasters).

[^280]: *See* Amendment to the Commission's Rules Regarding a Plan for
    Sharing the Costs of Microwave Relocation, WT Docket No. 95-157,
    *First Report and Order and Further Notice of Proposed Rule Making*,
    11 FCC Rcd 8825 (1996); Amendment to the Commission's Rules
    Regarding A Plan for Sharing the Costs of Microwave Relocation, WT
    Docket No. 95-157, *Second Report and Order*, 12 FCC Rcd 2705
    (1997); Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Second Report and Order*, 12 FCC Rcd 19079, 19114-26, ¶¶ 96-132
    (1997); *Upper 700 MHz* *Third Report and Order* at ¶¶ 48-50.

[^281]: *Upper 700 MHz* *Third Report and Order* at ¶¶ 6-9, 48-50.

[^282]: *See id.* at ¶¶ 9, 50.

[^283]: *See Upper 700 MHz MO&O and FNPRM* at ¶ 104.

[^284]: *See Upper 700 MHz Third Report and Order* at ¶¶ 57-58.

[^285]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206.

[^286]: 5 U.S.C. § 603.

[^287]: *See infra* Appendix C.

[^288]: Pub. L. No. 104-13.

[^289]: 47 C.F.R. §§ 1.415, 1.419.

[^290]: *Electronic Filing of Documents in Rulemaking Proceedings*, 63
    Fed. Reg. 24121 (1998).

[^291]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 *et. seq.*,
    has been amended by the Contract with America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) ("CWAA"). Title II
    of the CWAA is the Small Business Regulatory Enforcement Fairness
    Act of 1996 ("SBREFA").

[^292]: *See* 5 U.S.C. § 603(a).

[^293]: *See id*.

[^294]: *See* Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat.
    251 (1997).

[^295]: *See* *supra* NPRM paras. 120-21.

[^296]: *See* 5 U.S.C. § 604(a)(3).

[^297]: *See id*. § 601(6).

[^298]: *See id.* § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to 5 U.S.C. §
    601(3), the statutory definition of a small business applies "unless
    an agency after consultation with the Office of Advocacy of the
    Small Business Administration and after opportunity for public
    comment, establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.

[^299]: *See* 15 U.S.C. § 632.

[^300]: *See* 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^301]: *See* 5 U.S.C. § 601(4).

[^302]: *See* 1992 Economic Census, U.S. Bureau of the Census, Table 6.

[^303]: *See* 5 U.S.C. § 601(5).

[^304]: *See* U.S. Dept. of Commerce, Bureau of the Census, "1992 Census
    of Governments."

[^305]: *Id.*

[^306]: *See* 47 C.F.R. § 27.502(a)(1)-(2); *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, *First Report and Order*,
    15 FCC Rcd 476, 529-31, ¶¶ 131-36 (2000) (*Upper 700 MHz First
    Report and Order*). These definitions are consistent with the
    Commission's approach in the broadband PCS services. *See* 47 C.F.R.
    § 24.720(b).

[^307]: *See* 47 C.F.R. § 24.720(b)

[^308]: *See* Implementation of Section 309(j) of the Communications Act
    \-- Competitive Bidding, PP Docket No. 93-253, *Fifth Report and
    Order*, 9 FCC Rcd 5532, 5581-82 ¶ 115 (1994).

[^309]: *See* 47 C.F.R. § 27.210(b)(1)-(2).

[^310]: *See supra* text accompanying NPRM note 2.

[^311]: *See* *supra* NPRM paras. 120-21. We note that the SBA generic
    size standard applicable to Radiotelephone (Wireless) companies
    provides that a small entity is a radiotelephone company employing
    no more than 1,500 persons. *See* 13 C.F.R. § 121.201 (NAICS code
    513322). According to the Bureau of the Census, only 12
    radiotelephone firms from a total of 1,178 such firms which operated
    during 1992 had 1,000 or more employees. *See 1992 Census, Series
    UC92-S-1*, at Table 5 (SIC code 4812). Therefore, even if all 12 of
    these firms were wireless companies, nearly all wireless carriers
    were small businesses under the SBA's definition.

[^312]: *See* *supra* IRFA para. 8 (numbers of small entities
    nationwide).

[^313]: *See* 13 C.F.R. § 121.201 (NAICS code 51312).

[^314]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995).

[^315]: *Id.*

[^316]: *Id.*

[^317]: FCC News Release No. 31327, Jan. 13, 1993; Economics and
    Statistics Administration, Bureau of Census, U.S. Department of
    Commerce, Appendix A-9. The amount of \$10 million was used to
    estimate the number of small business establishments because the
    relevant Census categories stopped at \$9,999,999 and began at
    \$10,000,000. No category for \$10.5 million existed. Thus, the
    number is as accurate as it is possible to calculate with the
    available information.

[^318]: FCC News Release, June 19, 1998.

[^319]: We use the 77 percent figure of TV stations operating at less
    than \$10 million for 1992 and apply it to the 2000 total of 1,663
    TV stations to arrive at 1,281 stations categorized as small
    businesses.

[^320]: We use the 96% figure of radio station establishments with less
    than \$5 million revenue from data presented in the year 2000
    estimate (*FCC News Release*, September 30, 2000) and apply it to
    the 12,717 individual station count to arrive at 12,209 individual
    stations as small businesses.

[^321]: FCC News Release, "Broadcast Station Totals as of September 30,
    2000."

[^322]: 13 C.F.R. § 121.201 (NAICS code 51312).

[^323]: 15 U.S.C. § 632.

[^324]: *See* *supra* NPRM para. 116.

[^325]: 5 U.S.C. § 603(c).

[^326]: *See* *supra* NPRM para. 14.

[^327]: *See* *supra* NPRM paras. 46-47.

[^328]: *See* *supra* NPRM paras. 53-57.

[^329]: *See* *supra* NPRM para. 106.

[^330]: *See* *supra* NPRM paras. 55, 87.

[^331]: *See* *supra* NPRM para. 91.

[^332]: *See* Amendment of Part 1 of the Commission's Rules -
    Competitive Bidding Procedures*, Third Report and Order and Second
    Further Notice of Proposed Rule Making*, 13 FCC Rcd 374, 404, ¶ 47
    (*Part 1 Third Report and Order*).

[^333]: DTV 6^th^ Report and Order, 12 FCC Rcd 14588, 14590 para. 1
    (1997).

[^334]: *See* Separate Statement of Commissioner Gloria Tristani,
    Service Rules for 746-764 and 776-794 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, *Third Report and Order*, WT
    Docket No. 99-168 (Jan. 19, 2001); Separate Statement of
    Commissioner Gloria Tristani, Service Rules for 746-764 and 776-794
    MHz Bands, and Revisions to Part 27 of the Commission's Rules,
    *Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, WT Docket No. 99-168 (June 30, 2000).

[^335]: DTV 6^th^ Report and Order, 12 FCC Rcd at 14625, para. 76.

[^336]: 47 U.S.C. § 309(j)(14).