**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | ET Docket No. 00-258         |
|                                  | * |                              |
| 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                          | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**EIGHTH REPORT AND ORDER, FIFTH NOTICE OF PROPOSED RULE MAKING AND
ORDER**

**Adopted: September 23, 2005 Released: September 29, 2005**

**Comment Date: \[30 days from date of publication in the Federal
Register\]**

**Reply Comment Date: \[45 days from date of publication in the Federal
Register\]**

By the Commission: Commissioners Copps and Adelstein issuing a joint
statement.

Table of Contents

Heading Paragraph \#

**I. Introduction** 1

**II. Background** 3

**III. EIGHTH Report and order** 7

**IV. FIFTH Notice of proposed Rule Making** 11

> A. Relocation of BRS in the 2150-2160/62 MHz Band 13
>
> 1\. Relocation Process 14

2\. Negotiation Periods/Relocation Schedule 24

> 3\. Interference Issues/Technical Standards 28
>
> B. Relocation of FS in the 2160-2175 MHz Band 30
>
> C. Cost Sharing 43

**V. ORDER** 53

**VI. procedural matters** 54

**VII. ORDERING CLAUSES**. 64

APPENDIX A -- FINAL RULES

**APPENDIX B -- FINAL REGULATORY FLEXIBILITY ANALYSIS**

APPENDIX C -- INITIAL REGULATORY FLEXIBILITY ANALYSIS

# Introduction

1.  In this *Eighth Report and Order* ("*Eighth R&O*") in ET Docket No.
    00-258, we continue our ongoing efforts to promote spectrum
    utilization and efficiency with regard to the provision of new
    services, including Advanced Wireless Services (AWS).[^1] Advanced
    wireless systems could provide, for example, a wide range of voice,
    data and broadband services over a variety of mobile and fixed
    networks. Specifically, we reallocate the 2155-2160 MHz band for
    Fixed and Mobile services and designate the 2155-2175 MHz band for
    AWS use.

2.  Concurrently, in this *Fifth Notice of Proposed Rule Making*
    ("*Fifth Notice*") in ET Docket No. 00-258, we seek comment on the
    specific relocation procedures applicable to Broadband Radio Service
    (BRS) operations in the 2150-2160/62 MHz band, which the Commission
    recently decided will be relocated to the newly restructured
    2495-2690 MHz band.[^2] We also seek comment on the specific
    relocation procedures applicable to Fixed Microwave Service (FS)
    operations in the 2160-2175 MHz band. We propose to generally follow
    our relocation policies delineated in our *Emerging Technologies*
    proceeding and as modified by subsequent decisions, as described
    below.[^3] Finally, in the *Order* in ET Docket No. 00-258, we will
    require BRS licensees in the 2150-2160/62 MHz band to provide
    information on the construction status and operational parameters of
    each incumbent BRS system that would be the subject of relocation.

# Background

3.  Over the course of this proceeding, we have considered whether
    various spectrum bands should be used for AWS and, if so, what
    relocation mechanisms would be appropriate to relocate existing
    services in the bands. The 2160-2165 MHz band is currently used in
    the United States for non-Federal Government fixed services and
    mobile services licensed under the Domestic Public Fixed Radio
    Services in Part 21 of the Rules,[^4] the Public Mobile Services
    under Part 22 of the Rules, and the Fixed Microwave Services in Part
    101 of the Rules.[^5] The Commission originally identified the
    2160-2165 MHz band for new advanced fixed and mobile services in the
    1992 *Emerging Technologies* proceeding and adopted rules and
    procedures to permit new licensees to relocate existing fixed
    microwave services from this spectrum band.[^6] In addition, in the
    *AWS Notice*, the Commission proposed to make the 2160-2165 MHz band
    available for advanced mobile and fixed communication services.[^7]
    Further, in the *AWS Third R&O*, the Commission reallocated the
    2165-2180 MHz band to Fixed and Mobile services on a primary basis
    in order to promote the introduction of new advanced services,
    including AWS.[^8] The 2165-2175 MHz band, which is part of the
    larger 2160-2200 MHz band, is currently used by commercial and
    private FS licensees. These licensees provide telephone
    communications, communications for industry, and public safety
    communications.[^9] The FS operations in these bands are typically
    configured to provide two-way microwave communications between
    paired links. In this case, the FS links in the 2160-2200 MHz band
    are paired with the links in the 2110-2150 MHz band. We note that
    the 2110-2150 MHz band was part of the 90 MHz reallocated for AWS in
    the *AWS Second R&O*.[^10]

4.  In the *AWS Further Notice*, the Commission requested comment on
    whether the entire 2150-2160/62 MHz band, which is currently used by
    BRS, should be reallocated for AWS, and if so, how this band might
    be used with other spectrum being considered for AWS.[^11] We also
    proposed that, in the event that we reallocated frequency bands used
    by BRS, we would look to our *Emerging Technologies* principles, by
    which new entrants were obligated to provide incumbents with
    comparable facilities in the event relocation was deemed
    necessary.[^12] In the *AWS Second R&O*, the Commission reallocated
    and designated a 5 megahertz portion of the BRS band at 2150-2155
    MHz for AWS use. There, the Commission also recognized that the
    reallocation of the 5 megahertz spectrum block to AWS raised a
    number of issues, including the establishment of a relocation plan
    for incumbent licensees, but left these for future decisions within
    the proceeding.[^13] Subsequently, in the *AWS Third NPRM,* we
    further explored the relocation needs for the BRS licensees in the
    2150-2160/62 MHz band.[^14] On July 29, 2004, the Commission
    released the *BRS R&O and FNPRM* in WT Docket No. 03-66 that
    initiated a fundamental restructuring of the 2495-2690 MHz
    band.[^15] This decision, which was intended to provide existing and
    new licensees with enhanced flexibility to provide high-value
    services, also included provisions by which existing BRS licensees
    in the 2150-2160/62 MHz band would be included in the newly
    established band plan, allowing these licensees to be integrated
    with similar operations.[^16]

5.  BRS operations in the 2150-2160/62 MHz band consist of two
    channels - channel 1 (2150-2156 MHz) and channel 2A (2156-2160
    MHz).[^17] Licensees may also use channel 2 (2156-2162 MHz) on a
    limited basis in 50 cities.[^18] BRS operations in the band are now
    regulated under Part 27 of our Rules.[^19] In 1992, when the
    2160-2165 MHz band was reallocated to emerging technologies,[^20]
    the Commission implemented a policy by which incumbent BRS licensees
    that were using the 2160‑2162 MHz band would continue such use on a
    primary basis.[^21] However, any BRS station that applied for use of
    this band after January 16, 1992 would be granted a license only on
    a secondary basis to emerging technology use.[^22] In 1996, the
    Commission auctioned licenses for BRS channels on a Basic Trading
    Area (BTA) basis but noted that BRS channel 2 licenses using the
    2160-2162 MHz band were secondary to emerging technology
    licenses.[^23]

6.  In the *BRS R&O,* the Commission adopted a band plan in which
    existing BRS channel 1 (2150-2156 MHz) would transition to the new
    BRS channel 1 at 2496-2502 MHz and existing BRS channel 2/2A
    (2156-2162 MHz) to the new BRS channel 2 at 2618-2624 MHz.[^24] We
    note that new entrants for spectrum now occupied by part of BRS
    channel 1 will be licensed in an upcoming AWS auction of the
    2110-2155 MHz band.[^25] With respect to the 2155-2160/62 MHz band,
    which consists of BRS channels 2 and 2A and the upper one megahertz
    of BRS channel 1, we have not yet established new service rules for
    this band.[^26]

# EIGHTH Report and order

7.  *Proposals*. The 2155-2175 MHz band is a subset of a larger band at
    2155-2180 MHz that the Commission has identified as ideally suited
    for new fixed and mobile services, including AWS.[^27] In the *AWS
    Third NPRM*, the Commission tentatively concluded that spectrum in
    the 2155-2180 MHz band should be designated for AWS use because it
    is adjacent to the 2110-2155 MHz band that was allocated and
    designated for AWS use in the *AWS Second R&O* and because this
    allocation would closely complement the international allocation for
    a terrestrial component of advanced services at 2110-2170 MHz.[^28]
    In addition, the contiguous spectrum created by such a designation
    would create synergies in equipment design and facilitate the
    introduction of multiple AWS licensees using large spectrum blocks,
    possibly providing opportunities for asymmetric spectrum usage.[^29]
    Thus, in the *AWS Third NPRM*, the Commission proposed that the BRS
    spectrum at 2155-2160/62 MHz and the emerging technology spectrum at
    2160-2165 MHz, in conjunction with the former Mobile Satellite
    Service (MSS) spectrum at 2165-2180 MHz, be designated for new Fixed
    and Mobile services, including AWS.[^30] The Commission designated
    the 2175-2180 MHz band for AWS use in the *AWS Sixth R&O*, but
    deferred a decision on the 2155-2175 MHz band to a later
    proceeding.[^31] In addition, consistent with this plan, the
    Commission proposed in the *AWS Third NPRM* to reallocate the
    2155-2160 MHz band for Fixed and Mobile services, in order to
    promote AWS use.[^32]

8.  *Comments*. Our proposal to designate the 2155-2175 MHz band for new
    and advanced services, including AWS, has generated considerable
    support, as commenters indicate that this band could be best used to
    promote new technologies, such as AWS in paired or unpaired
    configurations.[^33] For example, CTIA recommends that larger blocks
    in this band be paired asymmetrically with smaller blocks in the
    1710-1755 MHz band already allocated for AWS, while ArrayCom
    advocates unpaired AWS use of this spectrum.[^34] Although some
    commenters suggest alternative uses for portions of the 2155-2175
    MHz band, such as low-power unlicensed use on a non-interfering
    basis or use by Ancillary Terrestrial Component (ATC)-enabled Mobile
    Satellite Service (MSS) networks,[^35] the majority of commenters
    support our tentative conclusion that we should extend the AWS
    designation from the 2110-2155 MHz band to encompass the band from
    2110-2180 MHz.[^36] For example, Ericsson states that extending the
    AWS designation from 2110-2155 MHz to 2110-2180 MHz would increase
    spectrum efficiency by designating bands that are compatible with
    adjacent services, thereby creating valuable contiguous
    spectrum.[^37]

9.  *Decision*. Based on our determination that additional spectrum is
    needed for AWS use, and because the characteristics of the 2155-2175
    MHz band make it well suited for such use, we conclude that
    designating this band for AWS will promote efficient use of the
    spectrum and allow for the rapid introduction of high-value services
    in the band. Because the 2155-2175 MHz band is adjacent to the
    2110-2155 MHz and 2175-2180 MHz bands that have already been
    designated for AWS, an AWS designation for this band will create 70
    MHz of contiguous spectrum that will promote the rapid introduction
    of new technologies and service offerings, and will foster the use
    of the highest potential spectrum. Furthermore, designation of the
    2155-2175 MHz band for AWS use is consistent with our previous
    decisions to designate spectrum for AWS on a primary basis to
    support the types of high powered mobile applications associated
    with AWS and Broadband PCS expansion. In addition, as proposed, we
    allocate the 2155-2160 MHz band to Fixed and Mobile services in
    order to allow the provision of AWS in this band. Although
    commenters did not explicitly address our proposal to add a Mobile
    allocation to the 2155-2160 MHz band, such support is implicit in
    their support for redesignating the 2155-2175 MHz band for AWS use
    because a Mobile allocation is essential for the provision\
    of AWS.

10. We note that we do not decide here how to assign this new AWS
    spectrum at 2155-2175 MHz but will consider this issue in a separate
    service rules proceeding at a later date. We also note that a
    current bilateral agreement in the 2155-2160/62 kHz band between the
    United States and Canada provides for coordinated use of BRS and EBS
    along the common border. The sharing of the 2160/62-2175 MHz band
    between the United States and Canada is covered by Arrangement A of
    the *Agreement Concerning the Coordination and Use of Radio
    Frequencies Above Thirty Megacycles per Second*, with Annex, as
    amended. There are no agreements with Mexico in the 2155-2175 MHz
    band. Accordingly, we note that there may be a need to negotiate new
    or modified agreements to provide for more flexible use of the
    spectrum with Canada and Mexico along the common borders.

# FIFTH Notice of proposed Rule Making

11. The relocation policy we adopted in our *Emerging Technologies*
    proceeding was designed to allow early entry for new technology
    providers by allowing providers of new services to negotiate
    financial arrangements for reaccommodation of incumbent licensees.
    Our relocation policy was also designed to allow gradual relocation
    of incumbents on a link-by-link basis during a geographical
    build-out period, based on an interference analysis. The Commission
    has used *Emerging Technologies* policies in establishing relocation
    schemes for new entrants, such as Personal Communications Service
    (PCS) licensees, Mobile Satellite Service (MSS) licensees, 18 GHz
    Fixed Satellite Service (FSS) licensees, and Nextel, in frequency
    bands currently occupied by incumbent operations.[^38] We note that
    we have previously sought comment on the use of *Emerging
    Technologies* policies in this docket in different contexts.[^39] In
    this *Fifth Notice,* we seek to establish a new record, specifically
    with respect to relocation issues for the 2150-2160 MHz and
    2160-2175 MHz bands as proposed herein.[^40]

12. Our earlier decision to accommodate AWS entrants into the 2150-2160
    MHz and 2160-2175 MHz bands does not alter our need to minimize the
    disruption to incumbent BRS and FS operations during the transition.
    We continue to believe that our relocation policy, with minor
    modifications to accommodate the type of incumbent operations that
    are the subject of relocation and to maintain consistency within the
    entire band at issue, is the best approach to meet our goal of
    providing an opportunity for early entry to the 2150-2160 MHz and
    2160-2175 MHz bands for new AWS licensees. We therefore propose that
    we generally apply our relocation policy, as delineated in our
    *Emerging Technologies* proceeding and subsequent decisions, to the
    spectrum designated for AWS in this proceeding, as discussed
    below.[^41]

## Relocation of BRS in the 2150-2160/62 MHz Band

13. In the *Eighth R&O* above, we reallocated and designated the
    2150-2160 MHz band for AWS. We now seek comment on the relocation
    procedures new AWS entrants should follow when relocating BRS
    incumbent licensees from this band.[^42] BRS operators are providing
    four categories of service offerings today: 1) downstream analog
    video; 2) downstream digital video; 3) downstream digital data;
    and 4) downstream/upstream digital data.[^43] Licensees and lessees
    have deployed or sought to deploy these services via three types of
    system configuration: high-power video stations, high-power fixed
    two-way systems, and low-power, cellularized two-way systems.[^44]
    Traditionally, BRS licensees were authorized to operate within a
    35-mile-radius protected service area (PSA) and winners of the 1996
    MDS auction were authorized to serve Basic Trading Areas (BTAs)
    consisting of aggregations of counties.[^45] In the proceeding that
    restructured the BRS band at 2495-2690 MHz, the Commission adopted a
    geographic service area (GSA) licensing scheme for existing BRS
    incumbents.[^46] Therefore, BRS relocation procedures must take into
    account the unique circumstances faced by the various incumbent
    operations and the new AWS licensees.

### Relocation Process

14. *Transition Plan.* We anticipate that an AWS licensee will likely
    use a terrestrial network that is comprised of several discrete
    geographic areas served by multiple base stations.[^47] Thus, the
    nature of an AWS licensee's service allows for the gradual
    relocation of incumbents during a geographically-based build-out
    period. We propose to require the AWS entrant to relocate BRS
    operations on a link-by-link basis, based on interference potential
    as discussed below. We further propose to allow the AWS entrant to
    determine its own schedule for relocating incumbent BRS operations
    so long as it relocates incumbent BRS licensees before beginning
    operation in a particular geographic area and subject to any other
    build-out requirements that may be imposed by the Commission on the
    AWS entrant. We recognize that this build-out period may take time
    because of the large service areas to be built out for new AWS
    networks but expect that the AWS licensees and the incumbent BRS
    licensees will work cooperatively to ensure a smooth transition for
    incumbent operations.[^48]

15. In some instances relocation of BRS operations on a link-by-link
    basis may be infeasible (*e.g.*, where a transmitter serves numerous
    receive sites, only some of which may pose an interference issue),
    and thus in order to meet the comparable facility requirement for
    relocating BRS operations, discussed below, it may be necessary for
    the AWS licensee to relocate more BRS facilities than an
    interference analysis conducted on a link-by-link basis might
    indicate as technically necessary. We also recognize that the AWS
    licensee is likely to deploy its service in some locations in a
    manner that does not correspond to the geography of the BRS service
    areas. For example, a BRS licensee's operations may extend beyond
    the AWS licensee's service area (*e.g.,* discrete transmit/receive
    combinations), and thus in order to meet the comparable facility
    requirement for relocating BRS operations, discussed below, the AWS
    licensee may need to relocate BRS operations in the adjacent service
    area even though an AWS licensee does not have license coverage in
    that area.[^49] We therefore propose to require that the AWS
    licensee relocate all incumbent BRS operations that would be
    affected by the new AWS operations, in order to provide BRS
    operators with comparable facilities.[^50] We seek comment on these
    transition plan proposals.

16. *Comparable Facilities.* In the *AWS Third NPRM*, the Commission
    proposed that if relocation were deemed necessary, BRS incumbents
    would be entitled to comparable facilities.[^51] In the *Emerging
    Technologies* proceeding, the Commission allowed new entrants to
    provide incumbents with comparable facilities using any acceptable
    technology.[^52] Under this policy, incumbents must be provided with
    replacement facilities that allow them to maintain the same service
    in terms of: (1) throughput -- the amount of information transferred
    within the system in a given amount of time; (2) reliability -- the
    degree to which information is transferred accurately and dependably
    within the system; and (3) operating costs -- the cost to operate
    and maintain the system.[^53] Thus, the comparable facilities
    requirement does not guarantee incumbents superior systems at the
    expense of new entrants.[^54] We continue to believe that, to
    minimize disruption to existing services and to minimize the
    economic impact on licensees of those services, a similar approach
    is warranted for BRS. We note that our relocation policies do not
    dictate that systems be relocated to spectrum-based facilities or
    even to the same amount of spectrum as they currently use, only that
    comparable facilities be provided.[^55] Comparable facilities can be
    provided by upgrading equipment to digital technology and making use
    of efficient modulation and coding techniques that use less spectrum
    to provide the same communications capabilities. Given advances in
    technology, *e.g.,* changing from analog to digital modulation and
    the flexibility provided by our existing relocation procedures to
    make incumbents whole, we believe that these differences should be
    taken into account when providing comparable facilities. We
    therefore propose to require that new AWS entrants provide
    comparable facilities to incumbents that are relocated, and we seek
    comment on\
    this proposal.[^56]

17. We further note that under our relocation policies only stations
    with primary status are entitled to relocation. Because secondary
    operations, by definition, cannot cause harmful interference to
    primary operations nor claim protection from harmful interference
    from primary operations at frequencies already assigned or assigned
    at a later date,[^57] new entrants are not required to relocate
    secondary operations. As stated above, BRS stations licensed after
    1992 to use the 2160-2162 MHz band are on a secondary basis. Thus,
    in some cases, a portion of BRS channel 2 has secondary status, and
    this portion would not be entitled to relocation under existing
    *Emerging Technologies* policies. Stations licensed prior to 1992
    for BRS channel 2 (2156-2162 MHz) operate on a primary basis over
    the entire channel and thus, would be entitled to relocation. We
    propose to apply the current relocation policies regarding stations
    with primary and secondary status to the BRS and seek comment on
    this proposal.

18. We also seek comment on how to apply the comparable facilities
    requirement to unique situations faced by BRS licensees. For
    example, we recognize that the incumbent BRS licensee may change the
    type of services it offers as it transitions to the new BRS band
    plan (*e.g.*, from 1-way to 2-way service or from fixed to mobile
    service), and we seek comment on how the comparable facilities
    policy would be satisfied in such a situation. We also seek comment
    on how the relocation obligation of comparable facilities should be
    applied to post-1992 licensees operating on a combination of BRS
    channels 1 and 2/2A (*e.g.,* integrated for downstream two-way
    broadband operations), considering these channels will likely
    transition to new channels in the restructured band at different
    times.[^58] For example, as noted above, we seek comment on what the
    respective relocation obligations should be for AWS licensees in the
    five megahertz block of BRS channel 1 (2150-2155 MHz) who will be
    licensed as part of the upcoming AWS auction of the 2110-2155 MHz
    band and AWS licensees in the remaining one megahertz block
    (2155-2156 MHz) who will be licensed at a later date. In addition,
    we seek comment on whether replacement of customer premises
    equipment (CPE) in use at the time of relocation (*e.g.,* customer
    equipment that is used and will continue to be used in the provision
    of two-way broadband operations) should be part of the comparable
    facilities requirement.

19. Because we have already identified relocation spectrum in the
    2495-2690 MHz band (2.5 GHz band) for BRS licensees currently in the
    2150-2160/62 MHz band (2.1 GHz band), we also seek comment on a
    proposal whereby the Commission would reassign 2.1 GHz BRS
    licensees, whose facilities have not been constructed or are not in
    use per Section 101.75 of the Commission's rules, to their
    corresponding frequency assignments in the 2.5 GHz band as part of
    the overall BRS transition.[^59] Specifically, we propose to modify
    the licenses of these 2.1 GHz BRS licensees to assign them 2.5 GHz
    spectrum in the same geographic areas covered by their licenses upon
    the effective date of the *Report and Order* in this proceeding.
    Under this proposal, no subscribers would be harmed by immediately
    reassigning these licensees to the 2.5 GHz band, consistent with our
    policy. Further, these BRS licensees could become proponents in the
    transition of the 2.5 GHz band and avoid delay in initiating new
    service (they would be limited in initiating or expanding service in
    the 2.1 GHz band under other proposals put forth in this *Fifth
    Notice*), and new AWS entrants in the 2.1 GHz band could focus their
    efforts on relocating the remaining BRS operations and their
    subscribers, facilitating their ability to clear the band quickly
    and provide new service. We propose to undertake these license
    modifications pursuant to our authority under Section 316 of the
    Communications Act.[^60] Specifically, Section 316(a)(1), provides
    that "\[a\]ny station license . . . may be modified by the
    Commission . . . if in the judgment of the Commission such action
    will promote the public interest, convenience and necessity."[^61]
    As the D.C. Circuit recently explained in *California Metro Mobile
    Communications v. FCC*, "Section 316 grants the Commission broad
    power to modify licenses; the Commission need only find that the
    proposed modification serves the public interest, convenience and
    necessity."[^62] The D.C. Circuit has held that such modifications
    do not have to be consensual[^63] and that license holders may be
    moved on a service-wide basis, without license-by-license
    consideration.[^64] The D.C. Circuit also has upheld license
    modifications that involve relocating existing licensees to new
    spectrum, outside of the auction process. Specifically, the court
    found that the Commission may approve spectrum swaps between
    existing licensees, without offering the swapped spectrum to
    alternative users.[^65] In addition, under our proposal, these
    reassigned BRS licensees would not be entitled to "comparable
    facilities" under the relocation policy since no facilities have
    been constructed or are in use. Accordingly, we seek comment on this
    proposal. We ask that commenters consider the impact of this
    proposal on the 2.5 GHz transition set forth in the *BRS R&O and
    FNPRM*, as well as the impact on the availability of the 2.1 GHz
    band for new AWS entrants.

20. *Leasing.* Some BRS licensees of channels 1 and 2 currently lease
    their spectrum capacity to other commercial operators,[^66] and the
    Commission has determined that future leasing of BRS and EBS
    spectrum will be allowed under the Secondary Markets policy.[^67]
    Because leasing is prevalent in the BRS bands, the "comparable
    facilities" policy needs to address these arrangements. We recognize
    that leasing arrangements vary---some BRS licensees may continue to
    lease their spectrum to third parties when they relocate to the 2.5
    GHz band, but others BRS licensees may discontinue leasing
    arrangements prior to relocation. In all cases, the BRS licensee
    retains *de jure* control of the license and is the party entitled
    to negotiate for "comparable facilities" in the relocation band. We
    propose to allow incumbent BRS licensees to rely on the throughput,
    reliability and operating costs of facilities operated by a lessee
    in negotiating "comparable facilities." In cases where the BRS
    licensees continue to lease their spectrum to third parties when
    they relocate to the 2.5 GHz band, we propose that the licensee may
    include the lessee in negotiations but that lessees would not have a
    separate right of recovery -- *i.e.,* the new entrant would not have
    to reimburse both the licensee and lessee for "comparable
    facilities."[^68] Further, in cases where the BRS licensee
    discontinues leasing arrangements prior to relocation, we propose
    that the lessee is not entitled to recover lost investment from the
    new entrant.[^69] We believe that this approach is consistent with
    the purpose of the "comparable facilities" policy to provide new
    facilities in the relocation band so that the public continues to
    receive service. We seek comment on these\
    leasing proposals.

21. *Licensee Eligibility*. Consistent with our findings in earlier
    proceedings, we now propose to apply the relocation policies
    discussed in this *Fifth Notice* to BRS incumbent primary licensees
    who seek comparable facilities at the time of relocation.[^70] Any
    incumbent licensee, whose license is to be renewed before
    relocation, would have the right to relocation only if its license
    is renewed. We further propose that an assignment or transfer of
    control would not disqualify a BRS incumbent in the 2150-2160 MHz
    band from relocation eligibility so long as the facility is not
    rendered, as a result, more expensive to relocate. In addition, we
    propose that if a grandfathered BRS license (*i.e.,* authorized
    facilities operating with a 35-mile-radius PSA) is cancelled or
    forfeited, and the right to operate in that area has not
    automatically reverted to the BRS licensee that holds the
    corresponding BTA license, no new licenses would be issued for BTA
    service in the 2150-2160/62 MHz band.[^71] We seek comment on these
    eligibility proposals.

22. *Future Licensing in the 2150-2160 MHz Band.* In the *Emerging
    Technologies* proceeding, the Commission recognized two divergent
    objectives when considering the types of modifications and
    expansions existing licensees could make without affecting their
    status with respect to emerging technology licensees -- on one hand,
    existing licensees must be allowed a certain amount of flexibility
    to operate without devaluing the usefulness of their facilities; on
    the other hand, the new entrants must be provided with a stable
    environment in which to plan and implement new services.[^72] The
    Commission decided that the best way to balance these divergent
    objectives was to establish procedures whereby existing licensees
    who chose to modify or expand their facilities after a particular
    date set by the Commission, would do so on a secondary basis to
    emerging technology licensees.[^73] Consistent with this current
    relocation policy and in order to provide some certainty to new AWS
    licensees on the scope of their relocation obligation, we propose
    that major modifications to authorized facilities, as discussed in
    the next paragraph, made by BRS licensees after the effective date
    of a *Report and Order* in this proceeding will not be eligible for
    relocation. We further propose that major modifications and
    extensions to existing BRS systems will be authorized on a secondary
    basis to emerging technology systems in the 2150-2160 MHz band after
    the effective date of the *Report and Order* in this
    proceeding.[^74] Moreover, all major modifications will render the
    modified BRS licensee secondary to emerging technology operations,
    unless the incumbent affirmatively justifies primary status and
    establishes that the modification would not add to the relocation
    costs of the emerging technology licensees.[^75] In addition, we
    propose that BRS facilities newly authorized in the 2150-2160 MHz
    band after the effective date of a *Report and Order* in this
    proceeding would not be eligible for relocation.[^76] We seek
    comment on\
    these proposals.

23. For purposes of relocation, we propose to adopt criteria that would
    be the basis for determining what qualifies as a major modification
    for BRS licensees. Adopting major modification criteria for the
    purposes of relocation is necessary because BRS licensees are now
    licensed on a geographic area basis, and thus are allowed to place
    transmitters anywhere within their defined service area without
    prior authorization so long as the licensee's operations comply with
    the applicable service rules, do not affect radio-frequency zones,
    or require environmental review or international coordination.[^77]
    Specifically, we propose to adopt criteria that, for example, would
    classify the additions of new transmit sites or base stations and
    changes to existing facilities that would increase the size or
    coverage of the service area or interference potential as types of
    modifications that are major, and thus not eligible for relocation.
    Traditionally, these limits have been expressed by identifying the
    distance by which existing transmit sites can be relocated, limiting
    increases in emissions, and various other means. Accordingly, we
    seek comment on what the criteria should be for major modifications
    and, in particular, the criteria in the former major modification
    rule for BRS licensees, codified at 47 C.F.R. § 21.23; the former
    rule for EBS licensees codified at 47 C.F.R. § 74.911(a)(2); or the
    current rule for wireless telecommunications services in § 1.929(d).

### Negotiation Periods/Relocation Schedule

24. We generally propose to require that negotiations for relocation of
    BRS operations be conducted in accordance with our *Emerging
    Technologies* policies, except that we propose to forego a voluntary
    negotiation period and instead require only a mandatory negotiation
    period that must expire before an emerging technology licensee could
    proceed to request involuntary relocation.[^78] The BRS transition
    plan for the new band at 2495-2690 MHz has five stages: (1) the
    initiation of the transition process -- when a proponent files an
    initiation plan for a geographic area with the Commission; (2) the
    transition planning period -- where parties can file
    counterproposals and any disputes would go to arbitration; (3) the
    reimbursement of costs; (4) the termination of incumbent operations;
    and (5) the filing of post-transition notification of completion
    with the Commission. The approximate time needed for the re-banding
    process includes 3-3 ½ years for the initiation and planning stages
    and 1 ½ years for the actual relocation, for a total of
    approximately five years.[^79] Thus, we recognize that the new band
    where the BRS incumbents are to be relocated is undergoing its own
    transition process that may not be completed until at least 2008. In
    light of these considerations, we propose to forego a voluntary
    negotiation period and institute "rolling" mandatory negotiation
    periods (*i.e.,* separate, individually triggered negotiation
    periods for each BRS licensee) of three years followed by the
    involuntary relocation of BRS incumbents. We propose that the
    mandatory negotiation period would be triggered for each BRS
    licensee when an AWS licensee informs the BRS licensee in writing of
    its desire to negotiate. Relocation of BRS operations by AWS
    licensees is more likely to take place in a relatively piecemeal
    fashion and over an extended period of time. Consequently, it is
    possible that a uniform mandatory negotiation period applicable to
    all BRS licensees would expire by the time that many BRS licensees
    were approached for relocation by an AWS entrant. We seek comment on
    this proposal.

25. Under *Emerging Technologies* policies, the mandatory negotiation
    period is intended as a period of negotiation between the parties on
    relocation terms resulting in a contractual relocation
    agreement.[^80] The mandatory negotiation period ensures that an
    incumbent licensee will not be faced with a sudden or unexpected
    demand for involuntary relocation if an emerging technology provider
    initiates its relocation request, and provides adequate time to
    prepare for relocation. During mandatory negotiations, the parties
    are afforded flexibility in the process except that an incumbent
    licensee may not refuse to negotiate and all parties are required to
    negotiate in good faith.[^81] If no agreement is reached during
    negotiations, an AWS licensee may proceed to involuntary relocation
    of the incumbent. In such a case, the new AWS licensee must
    guarantee payment of all relocation expenses, and must construct,
    test, and deliver to the incumbent comparable replacement facilities
    consistent with *Emerging Technologies* procedures.[^82] We note
    that under *Emerging Technologies* principles, an AWS licensee would
    not be required to pay incumbents for internal resources devoted to
    the relocation process or for fees that cannot be legitimately tied
    to the provision of comparable facilities, because such expenses are
    difficult to determine and verify.[^83] We propose to apply these
    negotiation/relocation principles to BRS licensees, and we seek
    comment on doing so. We also seek comment on whether to apply a
    "right of return" policy to AWS/BRS relocation negotiations similar
    to rule 47 C.F.R. § 101.75(d) (*i.e.,* if after a 12 month trial
    period, the new facilities prove not to be comparable to the old
    facilities, the BRS licensee could return to the old frequency band
    or otherwise be relocated or reimbursed). We ask parties to take
    into account the time periods for the transition occurring in the
    restructured 2495-2690 MHz band when providing comments on this
    issue.

26. *Sunset Date.* We propose to apply the sunset rule of 47 C.F.R. §
    101.79 to BRS relocation negotiations. This rule provides that new
    licensees are not required to pay relocation expenses after ten
    years following the start of the negotiation period for relocation.
    Consistent with our proposal to establish rolling mandatory
    negotiation periods, we propose that the ten year sunset date
    commence from the date the first AWS license is issued in the
    2150-2160 MHz band. However, because we anticipate that portions of
    the spectrum in the 2150-2160 MHz band will be made available for
    AWS auction at different times, the first AWS license could be
    issued in one portion of the band earlier than the first AWS license
    is issued in another portion of the band.[^84] We therefore seek
    comment on whether we should establish different sunset dates that
    are based on when the first AWS license is issued for each portion
    of the spectrum. In this case, the commencement dates and subsequent
    sunset dates are likely to be different for BRS channels 1 and 2/2A.
    Alternately, should we establish a single sunset date for the entire
    band? If so, we seek comment as to whether that sunset date should
    be ten years from the date the first AWS license is issued in
    whatever portion of the 2150-2160 MHz band is the last to be
    licensed. Further, we seek comment on when the ten year sunset date
    should commence if we do not adopt our proposal for rolling
    mandatory negotiation periods. Finally, commenters should consider
    that the sunset date proposal we ultimately adopt would apply apart
    from the restructuring of the 2495-2690 MHz band.

27. *Good Faith Requirement.* Finally, we expect the parties involved in
    the replacement or retuning of BRS equipment to negotiate in good
    faith, that is, each party would be required to provide information
    to the other that is reasonably necessary to facilitate the
    relocation process. We therefore propose to apply the good faith
    guidelines of 47 C.F.R. § 101.73 to BRS negotiations, and we seek
    comment on this proposal.

### Interference Issues/Technical Standards

28. The Commission currently provides for the protection of fixed
    microwave services operating in the 1.9 GHz and 2.1 GHz bands
    through the provisions of Section 24.237 of our rules.[^85] Under
    Section 24.237, PCS licensees operating in the 1850-1990 MHz band
    and AWS licensees operating in the 2110-2155 MHz band must, prior to
    commencing operations, perform certain engineering analyses to
    ensure that their proposed operations do not cause interference to
    incumbent fixed microwave services. Part of that analyses calls for
    the use of TIA Telecommunications Systems Bulletin (TSB) 10-F, or
    its successor standard,[^86] to determine when proposed PCS or AWS
    operations might cause interference to existing fixed microwave
    stations.[^87]

29. We seek herein to develop rules that will enable AWS licensees to
    determine when their proposed operations would cause interference to
    incumbent BRS systems operating in the 2150-2160 MHz band, such that
    the relocation of those systems would be necessary before AWS
    operations could begin. We therefore seek comment on whether a rule
    comparable to Section 24.237 should be developed for this purpose.
    If so, we seek comment as to what procedures and mechanisms should
    be contained in such a rule (*e.g*., a "distance" table, such as
    Table 2 in Section 24.237, which identifies the distance from an AWS
    station within which a BRS station must be protected; the use of TIA
    TSB 10-F, or some comparable document, to determine when
    interference is expected to occur to BRS stations, *etc.*).
    Commenters favoring this approach should provide information that
    would lead to the development of a distance table applicable to BRS
    operations; and commenters should also indicate whether and how TIA
    TSB 10-F could be used to determine the potential for interference
    to BRS systems. Commenters not favoring the use of a Section
    24.237-type rule should indicate what procedures we should adopt to
    enable AWS licensees to determine when their operations will cause
    interference to incumbent BRS systems.

## Relocation of FS in the 2160-2175 MHz Band

30. In the *Emerging Technologies* proceeding, the Commission
    established procedures for the relocation of incumbent operations by
    new technology licensees in several frequency bands, including the
    paired bands at 2110-2150 MHz and 2160-2200 MHz.[^88] Later, in the
    *Microwave Cost Sharing* proceeding, the Commission further
    addressed incumbent relocations by new technology licensees.[^89]
    Together, these proceedings provided for, among other matters,
    relocation procedures that included both voluntary and mandatory
    negotiations, as well as relocation sunset periods, as delineated in
    47 C.F.R. Part 101.[^90]

31. In 2000, in the *MSS Second R&O* in ET Docket No. 95-18, the
    Commission adopted 'modified' *Emerging Technologies* relocation
    procedures for FS incumbents in the 2165-2200 MHz band that would be
    relocated by new MSS licensees in that band.[^91] Under these
    'modified' procedures, the Commission eliminated the voluntary
    negotiation period for relocation of FS incumbents by MSS in the
    2165-2200 MHz band[^92] and provided instead a single mandatory
    negotiation period applying to all FS incumbents. This single
    mandatory negotiation period would be triggered when the first MSS
    licensee informs, in writing, the first FS incumbent of its desire
    to negotiate.[^93] Furthermore, consistent with its findings in the
    earlier *Microwave Cost Sharing* proceeding, the Commission
    established that the FS relocation rules would sunset ten years
    after the negotiations begin for the first FS licensee.[^94]

32. In the *AWS Second R&O*, the Commission addressed the relocation
    procedures that would apply to the relocation of incumbent FS
    licensees by new AWS entrants in the paired 2110-2150 MHz band.[^95]
    The Commission concluded that "the modified \[MSS\] relocation
    procedures \[for the 2165-2200 MHz band\] \... represent\[ed\] the
    best course."[^96] The Commission reasoned, "\[a\] unified approach
    to our rules and procedures serves the public interest, and can
    promote the rapid development of AWS, which many commenters
    support."[^97]

33. As discussed more fully elsewhere herein, in the *AWS Third R&O*,
    the Commission reallocated the 1990-2000/2020-2025 MHz and 2165-2180
    MHz bands for Fixed and Mobile services to support AWS.[^98]
    Subsequently in the *AWS Sixth R&O*, the Commission concluded that,
    given its earlier decision in the *AWS Second R&O* to apply the
    'modified' relocation procedures to AWS relocation of FS in the
    2110-2150 MHz band, it would be appropriate to apply the same
    procedures to the relocation of FS by AWS licensees in the 2175-2180
    MHz paired band.[^99]

34. In proposing relocation procedures for incumbent FS operations in
    the 2160-2175 MHz band, we continue to believe that it is desirable
    to harmonize the FS relocation procedures among the various AWS
    designated bands to the greatest extent feasible. As the Commission
    observed in the *AWS Sixth R&O*, relocation procedures that are
    consistent can be expected to foster a more efficient rollout of AWS
    and minimize confusion among the parties, and thereby serve the
    public interest.[^100]

35. Under the existing 'modified' *Emerging Technologies* relocation
    procedures described above, there is a single mandatory negotiation
    period that commences when the first new technology entrant informs
    the first FS licensee, in writing, of its desire to negotiate. A
    ten-year sunset period is triggered when the mandatory negotiation
    period begins. We seek comment on whether we should apply these same
    procedures to FS relocation by AWS in the 2160-2175 MHz band. As
    noted above, this would be consistent with the procedures adopted in
    the *AWS Second R&O* and *AWS Sixth R&O* for the paired bands
    2110-2150 MHz and 2175-2180 MHz, respectively.

36. We also propose to clarify that under the single mandatory
    negotiation periods approach the ten-year sunset would supersede,
    and thereby terminate, any remaining mandatory negotiation period
    that had not yet run its course. We propose that this ten-year
    sunset period for the 2160-2175 MHz band should commence with the
    date the first AWS license is issued in that band. We seek comment
    on this proposal, particularly whether this trigger event represents
    the most appropriate date for starting the ten-year sunset period.
    Because we have not yet determined how we will make this spectrum
    available for assignment, it is possible that different portions of
    the band may be licensed at different times. We therefore seek
    comment as to whether we should establish different sunset periods
    for FS incumbents in different frequency blocks within the band,
    based on the date the first AWS license is issued for each subset of
    the band.[^101] We recognize that, in this case, the commencement
    date and subsequent sunset date may not be uniform across the whole
    band. We also seek comment on whether we should instead set a
    uniform sunset date for the entire band and, if so, what trigger
    date we would use to determine that sunset date.[^102]

37. We also seek comment on an alternative approach. Relocation of FS
    operations by AWS licensees is more likely to take place in a
    relatively piecemeal fashion and over an extended period of time.
    Consequently, it is possible that a single mandatory negotiation
    period afforded under the existing relocation procedures would
    expire before the time that many FS licensees were approached for
    relocation by an AWS entrant. Therefore, we also seek comment on
    whether each FS incumbent in the 2160-2175 MHz band should be
    afforded a separate, individually triggered, negotiation period --
    as contrasted with the across-the-board uniform period for all
    incumbents under the existing relocation rules.[^103] Under this
    alternative proposal, a mandatory negotiation period would be
    triggered by an event specific to each FS licensee, which we propose
    would be when an AWS licensee informs the FS licensee in writing of
    its desire to negotiate. This would result in a series of
    independent, or "rolling," negotiation periods, each having its own
    time frame. One potential benefit of the rolling negotiation period
    approach is that it could afford a greater opportunity for FS
    incumbents and AWS licensees to engage in relocation negotiations
    and could foster a more equitable and expeditious transition to AWS
    in the band. On the other hand, this approach could result in more
    complex negotiation timetables. We seek comment on this alternative
    proposal.

38. *Other Bands*. If we were to adopt the alternative rolling
    negotiation period approach described above for the 2160-2175 MHz
    band, we seek comment on whether the same approach should be adopted
    for corresponding paired segments of the 2110-2150 MHz band. In a
    similar fashion, if we were to adopt the rolling negotiation
    approach for these two bands, we seek comment on whether the
    relocation procedures adopted for the 2175-2180 MHz band in the *AWS
    Sixth R&O* should also be changed to afford rolling FS negotiation
    periods, resulting in a unified rolling negotiation period approach
    across these bands. We also seek comment on whether the modified
    sunset rules discussed above should apply in these other bands as
    well. Finally, we seek comment on whether the relocation/sunset
    procedures described here would harmonize well with the procedures
    for other *Emerging Technologies* bands that have been addressed
    elsewhere in this and other proceedings.

39. *Incumbent Part 22 Services*. We also seek comment on whether and
    how to harmonize the *Emerging Technologies* relocation rules for
    Part 22 point-to-point microwave links and Part 101 fixed services.
    When the *Emerging Technologies* relocation rules were first
    adopted, fixed microwave services in the spectrum were regulated
    under Parts 21, 22, and 94, dealing with Common Carrier fixed
    point-to-point, fixed services supporting Paging and Radiotelephone,
    and Private Operational point-to-point, respectively. To address
    relocation of all of these fixed services, the Commission
    established separate but identical relocation rules in each
    Part.[^104] In 1996, the Commission merged the rules regulating
    Common Carrier and Private Operational services in Part 101 but left
    fixed services supporting Paging and Radiotelephone, along with the
    rules for relocating these links, in Part 22.[^105]

40. Although initially identical, the *Emerging Technologies* relocation
    rules in Part 22 and in Part 101 subsequently diverged. When the
    Commission determined that FS incumbents in the 2.1 GHz band would
    be subject to modified relocation procedures, these modifications
    were reflected in the Part 101 relocation rules but inadvertently
    not included in the Part 22 rules, although Part 22 point-to-point
    services also operated in the 2.1 GHz spectrum. Thus, at that point,
    AWS entrants in the 2.1 GHz band would be required to follow the
    original *Emerging Technologies* rules to relocate Part 22 links,
    but would use the modified rules to relocate Part 101 links.

41. The rules applicable to Part 22 and Part 101 links further diverged
    recently, when the Commission determined that it would not renew the
    Part 22 point-to-point licenses in the 2110-2130 and 2160-2180 MHz
    bands, but instead allow all current Part 22 fixed service licenses
    in these bands to expire at the end of their current term.[^106]
    Commission records indicate that there are 53 active Part 22 fixed
    licenses in these two bands, and that all will have expired by
    January 3, 2010. Thus, all Part 22 fixed services will cease
    operations in the 2.1 GHz band by 2010. In contrast, Part 101 FS
    licensees in *Emerging Technologies* spectrum are not currently
    prohibited from renewing their licenses.

42. We do not propose to permit renewal of Part 22 fixed service
    licenses in the 2.1 GHz band. We do seek comment, however, on
    whether the relocation rules that apply to AWS relocation of Part
    101 fixed services should otherwise apply to AWS relocation of Part
    22 services as well.

## Cost Sharing

43. Our *Emerging Technologies* relocation policies require new
    licensees who benefit from the clearing of the spectrum of incumbent
    operations by an earlier entrant to reimburse that entrant for
    reasonable costs incurred in clearing the spectrum.[^107] The
    Commission has found that adopting cost sharing rules in these
    circumstances serves the public interest because it (1) distributes
    relocation costs more equitably among the beneficiaries of the
    relocation; (2) encourages the simultaneous relocation of multi-link
    communications systems; and (3) accelerates the relocation process,
    promoting more rapid deployment of new services.[^108] In this
    section, we discuss cost sharing among new licensees when they
    relocate incumbent FS operations in the 2110-2150 and 2160-2200 MHz
    bands and when they relocate BRS operations in the 2150-2160/62 MHz
    band.

44. *Relocation of Incumbent FS Licensees*. The Part 101 relocation
    rules address, *inter alia*, the cost sharing obligation imposed on
    new licensees when they relocate FS incumbents in the 2110-2150 MHz
    and 2160-2200 MHz bands, which currently are used by FS licensees
    mostly as paired links in the lower and upper bands. Section 101.82
    provides that when a new licensee in either of these bands relocates
    an incumbent paired FS link with one path in one band and the paired
    path in the other band, the new licensee is entitled to
    reimbursement of fifty percent of its relocation costs from any
    subsequently entering new licensee which would have been required to
    relocate the same FS link, subject to a monetary "cap."[^109] We
    also note that this rule applies to both new AWS licensees in the
    2110-2150 MHz and 2160-2180 MHz bands as well as to MSS licensees in
    the 2180-2200 MHz band, which are discussed separately below.

45. In the *AWS-2 Service Rules NPRM*, the Commission recognized that a
    single FS path in these bands could cross multiple AWS license
    areas, and thus multiple AWS licensees could benefit by the
    relocation of a single FS link.[^110] The Commission thus sought
    comment on whether it should adopt formal procedures for
    apportioning relocation costs among multiple AWS licensees in the
    2110-2150 MHz and 2175-2180 MHz bands, and in particular, whether it
    should apply the cost sharing rules in Part 24 that were used by new
    PCS licensees when they relocated incumbent FS links in the
    1850-1990 MHz band. In this *Fifth Notice*, we seek comment on
    whether we should adopt formal procedures for apportioning
    relocation costs among multiple AWS licensees in the 2160-2175 MHz
    band and in particular, whether we should apply the cost sharing
    rules in Part 24. We also seek comment on whether AWS licensees in
    the 2160-2175 MHz band should be subject to the same cost sharing
    regime that we adopt for relocation of FS incumbents in the
    2110-2150 MHz and 2175-2180 MHz bands. [^111]

46. Under the Part 24 cost sharing plan, new licensees that incur costs
    relocating an FS link are eligible to receive reimbursement from
    subsequent new entrants that also benefited from that
    relocation.[^112] Reimbursement claims are submitted to one of the
    private non-profit clearinghouses designated by the Wireless
    Telecommunications Bureau to administer the plan.[^113] All new
    entrants are required to file a prior coordination notice with these
    clearinghouses before beginning operations.[^114] Upon receiving
    such a notice, a clearinghouse with a reimbursement claim on file
    identifies whether the new entrant has benefited from the relevant
    relocation using a Proximity Threshold Test.[^115] This test limits
    the beneficiaries to those entrants turning on a base station that
    both operates in the same spectrum that the incumbent link did prior
    to relocation and is within a specified geographic distance of the
    link.[^116] Having identified a new entrant as a beneficiary, the
    clearinghouse then determines the amount of the beneficiary's
    repayment obligation using a rule-specified cost sharing
    formula.[^117] This amount is subject to a cap of \$250,000 per
    relocated link, plus \$150,000 if a new or modified tower is
    required.[^118] Once the beneficiary is notified of the amount, it
    is then responsible for paying reimbursement within 30 days, with an
    equal share of the total going to each entrant that has previously
    contributed to the relocation.[^119] FS incumbents that
    self-relocate are also permitted to obtain reimbursement from
    benefiting AWS entrants under the plan, subject to the same cap
    described above.[^120] Any disputes over cost sharing obligations
    under the rules are addressed in the first instance by a
    clearinghouse, and if still unresolved, by alternatives such as
    binding arbitration.[^121] All of these payment obligations are
    imposed as a default, and new licensees are permitted to enter into
    private cost sharing arrangements with each other that supercede the
    cost sharing plan as it applies to reimbursement between those
    licensees.[^122]

47. We believe that adopting the Part 24 cost sharing plan for new AWS
    licensees that relocate FS incumbents would have many benefits.
    First, the Part 24 plan was devised to accommodate new cellular type
    systems licensed by geographic areas and incumbent FS point-to-point
    operations, which are essentially the same circumstances at issue
    here, and the Part 24 plan has a proven record of success. In 2000,
    the Commission reviewed the operation of the Part 24 cost sharing
    rules and concluded that "\[t\]hey generally have served to promote
    an efficient and equitable relocation process . . . ."[^123] In
    addition, since the plan went into operation in 1996, the Commission
    has resolved numerous questions regarding the details of the plan's
    operation and application. We therefore expect that there will be
    less need for clarification if we adopt this regime for AWS. For
    these reasons, we anticipate that adopting these rules will expedite
    the relocation of FS incumbents and the introduction of new
    services. We therefore propose to adopt a cost sharing plan for
    relocation of FS incumbents in the 2160-2175 MHz band based on the
    Part 24 plan and seek comment on this proposal.[^124]

48. While the Part 24 rules could be applied to the relocation of FS
    incumbents in the 2160-2175 MHz band without substantial changes, we
    seek comment on whether some modifications are nevertheless
    appropriate. For example, PCIA has suggested in response to the
    *AWS-2 Service Rules NPRM* that, in establishing a cost sharing plan
    for AWS relocation of FS, we should modify the Part 24 plan by (1)
    establishing a rule requiring licensing data to be filed by all
    entities; (2) mandating that parties are required to act in good
    faith in connection with their responsibilities under the cost
    sharing plan; (3) providing that reasonable interest charges can be
    applied to cost sharing obligations; (4) creating an explicit
    mechanism for expedited appeal to the Commission from a disputed
    clearinghouse determination; and (5) giving weight to the
    determinations of the clearinghouse in such an appeal.[^125] We seek
    comment on these suggested changes to the Part 24 plan.

49. The Part 24 plan delegates authority to the Wireless
    Telecommunications Bureau to assign the administration of the cost
    sharing rules to one or more private non-profit
    clearinghouses.[^126] Management of the Part 24 cost sharing rules
    by third-party clearinghouses has been highly successful, and two
    entities have already expressed interest in accepting this
    responsibility for AWS relocation of FS in the 2110-2150 MHz and
    2175-2180 MHz bands.[^127] We seek comment on the rules that should
    govern such a clearinghouse and the procedures and quality criteria
    we should use to select a clearinghouse administrator.

50. As noted above, MSS is allocated to the 2180-2200 MHz band. FS links
    in this band are paired with FS links in the 2130-2150 MHz band
    which is designated for AWS. Cost sharing between MSS and AWS
    licensees in these paired bands is governed by section 101.82, which
    provides that when a new licensee in either of these bands relocates
    an incumbent paired FS link with one path in one band and the paired
    path in the other band, the new licensee is entitled to
    reimbursement of fifty percent of its relocation costs (*i.e*., the
    total cost of relocating both paths) from any subsequently entering
    new licensee which would have been required to relocate the same FS
    link, subject to a monetary "cap." The Commission adopted relocation
    rules for MSS that recognize the unique characteristics of a
    satellite service. For example, unlike a new terrestrial entrant
    such as AWS that can clear the band on a link-by-link basis, MSS
    must clear all incumbent FS operations in the 2180-2200 MHz band
    within the satellite service area if interference will occur. Thus,
    the relocation obligations and cost sharing among MSS new entrants
    in the 2180-2200 MHz is relatively straightforward and can function
    without a clearinghouse or formal cost sharing procedures.[^128]
    Section 101.82 establishes a sharing obligation between MSS and AWS
    that is reasonable and relatively easy to implement, and because it
    does not depreciate cost sharing obligations, it provides MSS
    licensees with additional assurance of cost recovery. In addition to
    this consideration, we also do not wish to change the relocation and
    cost sharing rules applicable to MSS, because MSS licensees are
    currently in the midst of the implementation and relocation process.
    Subsequently, the *AWS-2 Service Rules NPRM* has sought comment on
    how the AWS sharing obligation (*i.e*., fifty percent for relocating
    the link) should be apportioned among multiple AWS licensees. In
    this *Fifth Notice*, we seek comment on whether MSS entrants
    entitled to reimbursement under Rule 101.82 should submit their
    reimbursement claims to an AWS clearinghouse, as discussed above,
    including any procedures we may adopt for filing such claims.[^129]
    We believe that this approach would relieve MSS licensees of the
    burden of identifying the AWS licensees who would be obligated to
    pay relocation costs. We seek comment on this proposal.

51. *Relocation of Incumbent BRS Licensees*. In this *Fifth Notice,* we
    propose to require AWS entrants to relocate BRS operations in the
    2150-2160/62 MHz band on a link-by-link basis, based on interference
    potential.[^130] We also note certain instances where it may be
    necessary for the AWS licensee to relocate more BRS facilities than
    an interference analysis conducted on a link-by-link basis might
    indicate as technically necessary, in order to provide relocating
    incumbents with comparable facilities---e.g., where an AWS licensee
    may be required to relocate BRS operations outside its own service
    area or where BRS incumbents operate on combinations of BRS channels
    1 and 2/2A.[^131] Thus, a subsequent AWS licensee who operates
    co-channel in an adjacent geographic area or who operates on a
    different frequency than the relocator would benefit from the
    relocation of certain BRS operations. The relocation of a single BRS
    link could also have more than one AWS beneficiary if the BRS link
    uses spectrum that overlaps more than one AWS license block.
    Consequently, we seek comment on whether we should establish cost
    sharing obligations for AWS licensees who benefit from an earlier
    AWS licensee's relocation of BRS incumbents in the 2150-2160/62 MHz
    band. For example, we seek comment on whether cost sharing
    obligations should be imposed on new licensees that receive
    interference but do not cause it, as is done with the PCS rules, or
    only on those licensees that cause interference, as is the case for
    both the current *Emerging Technologies* and MSS rules in Part
    101.[^132]

52. We also seek comment on what, if any, specific cost sharing
    obligations are necessary or appropriate, including how costs should
    be apportioned among AWS licensees. Although we noted above that the
    Part 24 plan could be applied to FS relocation without substantial
    changes, we believe that this is not the case for BRS operations
    which are significantly different than point-to-point FS operations.
    BRS operations are primarily point-to-multipoint, based either on a
    contour around a fixed transmitter with protected receive sites
    within the contour or on a wide geographic area with multiple base
    and receive sites located anywhere within the licensed area. We thus
    seek comment on what criteria could be used to identify whether a
    subsequent AWS licensee has an obligation to share the cost of
    relocating a BRS incumbent and how the reimbursement obligation
    should be apportioned among AWS licensees.[^133] Commenters should
    consider, for example, whether we should require each AWS licensee
    to bear this financial responsibility in proportion to the amount of
    spectrum in the 2150-2160/62 MHz band for which it is licensed, or
    in proportion to the amount of geographic area cleared within its
    licensed market, or some other metric, such as MHz/pops.[^134] We
    also seek comment on whether we should apply a "cap" or some other
    limit on the amount a relocator is entitled to receive as
    reimbursement in order to protect later entrants who did not
    participate in negotiations; we also seek comment on what the amount
    of the "cap" should be.[^135] Moreover, we seek comment on whether
    formal cost sharing procedures, such as those in the Part 24 plan,
    are necessary or appropriate to implement any cost sharing
    obligations we may ultimately adopt, and if so, what procedures we
    should adopt.[^136] Finally, we seek comment on whether we should
    designate a clearinghouse party to administer any cost sharing rules
    we may adopt, the rules that should govern a clearinghouse and the
    procedure and quality criteria we should use to select a
    clearinghouse administrator.

# ORDER

53. In order to assist the Commission in determining the scope of the
    new AWS entrants' relocation obligation, we will require BRS
    licensees in the 2150-2160/62 MHz band to provide the following
    information to the Commission within 60 days and 120 days of the
    effective date of this Order.[^137] Currently, neither the
    Commission nor the public has reliable information on the
    construction status and/or operational parameters of each BRS system
    in the 2150-2160/62 MHz band that would be subject to relocation. We
    believe that reliable, public data on each incumbent system that
    would be subject to relocation is essential well in advance of the
    planned auction of the 2150-2155 MHz band next year.[^138] We note
    that the information we require would ultimately be necessary in the
    context of relocation negotiations. Because the Commission now
    licenses the BRS service on the basis of geographic licensing areas,
    we will require BRS licensees to submit information on the locations
    and operating characteristics of BRS systems (*e.g.,* the location
    of base or fixed stations by coordinates, tower heights, power
    levels, etc.) in the 2150-2160/62 MHz band, on other system
    characteristics of BRS incumbents (*e.g.*, subscriber numbers and
    types of equipment used), and on categories of services provided
    (*e.g*., one-way or two-way service, point-to-point or
    point-to-multipoint operations, data or analog video service).[^139]
    We also will require BRS licensees to provide this information even
    if the spectrum is leased to third parties. Further, because we
    propose relocation on a link-by-link basis, we will require that BRS
    licensees, as part of the information on system design in the band,
    provide the number of links (including the connection between a base
    station and subscriber premises equipment) within the system for
    both point-to-point and point-to-multipoint systems. To the extent
    that a system uses both BRS channels 1 and 2 as part of the same
    service (*e.g.,* as a link to a two-way data service), we will
    require that BRS licensees make special note of this when providing
    their system information. We note that this list is not inclusive.
    This information will be collected through the Commission's
    Universal Licensing System (ULS) and made available to the public.
    To further this process, we delegate authority to the Office of
    Engineering and Technology and the Wireless Telecommunications
    Bureau to issue Public Notices setting forth the specific data
    required of BRS licensees, when it is to be filed and the procedures
    for filing this information. Finally, we make this *Order* effective
    upon publication in the Federal Register.[^140]

# procedural matters

54. *Final Regulatory Flexibility Analysis for Eighth Report and Order
    and Initial Regulatory Flexibility Analysis for the Fifth Notice of
    Proposed Rule Making.* As required by Section 603 of the Regulatory
    Flexibility Act, 5 U.S.C. § 603, the Commission has prepared a Final
    Regulatory Flexibility Analysis (FRFA) of the possible significant
    economic impact on small entities of the proposals suggested in this
    document. The FRFA is set forth in Appendix B. As required by
    Section 603 of the Regulatory Flexibility Act, 5 U.S.C. § 603, the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant economic impact on small entities
    of the proposals suggested in this document. The IRFA is set forth
    in Appendix C.

55. *Ex Parte Rules -- Permit-But-Disclose Proceeding.* 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 as provided in the
    Commission's rules. *See generally* 47 C.F.R. §§ 1.1202, 1.1203, and
    1.1206(a).

56. *Final Paperwork Reduction Analysis.* This *Eighth Report and Order*
    does not contain new or modified information collection requirements
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. In addition, it does not contain any new or modified
    "information collection burden for small business concerns with
    fewer than 25 employees," pursuant to the Small Business Paperwork
    Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. §
    3506(c)(4).

57. *Initial Paperwork Reduction Analysis.* The *Fifth Notice of
    Proposed Rule Making* and *Order* contain proposed new or modified
    information collection requirements. The Commission, as part of its
    continuing effort to reduce paperwork burdens, invites the general
    public and the Office of Management and Budget (OMB) to comment on
    the information collection requirements contained in this document,
    as required by the Paperwork Reduction Act of 1995, Public Law
    104-13. Public and agency comments are due 60 days after the date of
    publication in the Federal Register. Comments should address: (a)
    whether the proposed collection of information is necessary for the
    proper performance of the functions of the Commission, including
    whether the information shall have practical utility; (b) the
    accuracy of the Commission's burden estimates; (c) ways to enhance
    the quality, utility, and clarity of the information collected;
    and (d) ways to minimize the burden of the collection of information
    on the respondents, including the use of automated collection
    techniques or other forms of information technology. In addition,
    pursuant to the Small Business Paperwork Relief Act of 2002,[^141]
    we seek specific comment on how we might "further reduce the
    information collection burden for small business concerns with fewer
    than 25 employees."

58. In addition to filing comments with the Secretary, a copy of any
    comments on the information collections contained herein should be
    submitted to Judith Boley Herman, Federal Communications Commission,
    445 12^th^ Street, S.W., Room 1-C804, Washington, D.C. 20554, or via
    the Internet to \<Judith-B.Herman@fcc.gov\>, and to Kristy LaLonde,
    Policy Analyst, Office of Information and Regulatory Affairs (OIRA),
    Office of Management and Budget (OMB), Docket Library, Room 10234,
    New Executive Office Building (NEOB), 725 17^th^ Street, N.W.,
    Washington, D.C. 20503, or via the Internet at
    \<LaLonde@omb.eop.gov\>.

59. *Congressional Review Act.* The Commission will send a copy of this
    *Eighth Report and Order* and *Order* in a report to be sent to
    Congress and the General Accounting Office pursuant to the
    Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A).

60. *Comments.* Pursuant to Sections 1.415 and 1.419 of the Commission's
    rules, 47 C.F.R. §§ 1.415, 1.419, interested parties may file
    comments on or before **\[30 days from date of publication in the
    Federal Register\]**, and reply comments on or before **\[45 days
    from date of publication in the Federal Register\]**. Comments may
    be filed using the Commission's Electronic Comment Filing System
    (ECFS) or by filing paper copies. *See Electronic Filing of
    Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24121 (1998).

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

62. All filings must be addressed to the Commission's Secretary, Office
    of the Secretary, Federal Communications Commission. Filings can be
    sent by hand or messenger delivery, by commercial overnight courier,
    or by first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). The Commission's contractor, Natek, Inc., will receive
    hand-delivered or messenger-delivered paper filings for the
    Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110,
    Washington, DC 20002. The filing hours at this location are 8:00
    a.m. to 7:00 p.m. All hand deliveries must be held together with
    rubber bands or fasteners. Any envelopes must be disposed of before
    entering the building. Commercial overnight mail (other than U.S.
    Postal Service Express Mail and Priority Mail) must be sent to 9300
    East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
    first-class mail, Express mail, and Priority Mail should be
    addressed to 445 12^th^ Street, SW., Washington, DC 20554.

63. *Further Information.* For further information, contact Priya
    Shrinivasan, Office of Engineering and Technology, at
    (202) 418-7005, or via the Internet at <Priya.Shrinivasan@fcc.gov>.

# ordering clauses

64. Accordingly, IT IS ORDERED that pursuant to Sections 1, 4(i), 7(a),
    301, 303(f), 303(g), 303(r), 307, 316, 332 of the Communications Act
    of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301,
    303(f), 303(g), 303(r), 307, 316, and 332, this Eighth Report and
    Order IS ADOPTED and that Part 2 of the Commission's Rules IS
    AMENDED, as specified in Appendix A, \[**effective 30 days after
    publication in the Federal Register**\].

65. IT IS FURTHER ORDERED that pursuant to Sections 1, 4(i), 7(a), 301,
    303(f), 303(g), 303(r), 307, 316, and 332 of the Communications Act
    of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301,
    303(f), 303(g), 303(r), 307, 316, and 332, this Fifth Notice of
    Proposed Rule Making IS ADOPTED.

66. IT IS FURTHER ORDERED that pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. 154(i), this Order IS
    ADOPTED, \[**effective immediately upon publication in the Federal
    Register**\]. This Order contains information collection
    requirements subject to the Paperwork Reduction Act of 1995 (PRA),
    Public Law 104-13, that are not effective until approved by the
    Office of Management and Budget (OMB).

67. IT IS FURTHER ORDERED that pursuant to Section 5(c) of the
    Communications Act, as amended, 47 U.S.C. § 155(c), the Office of
    Engineering and Technology and the Wireless Telecommunications
    Bureau ARE GRANTED DELEGATED AUTHORITY to implement the requirement
    set forth in this Order.

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

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

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX A**

    **FINAL RULES**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR Part 2 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 by
    revising page 34.

**[§ 2.106 Table of Frequency Allocations.]{.underline}**

The revisions read as follows:

\* \* \* \* \*

+----------+------------+---------+-----------+-----------+---------+
|          |            |         | 1850-2025 | 1850-2000 | RF      |
|          |            |         |           |           | Devices |
|          |            |         |           | FIXED     | (15)    |
|          |            |         |           |           |         |
|          |            |         |           | MOBILE    | P       |
|          |            |         |           |           | ersonal |
|          |            |         |           |           | Communi |
|          |            |         |           |           | cations |
|          |            |         |           |           | (24)    |
|          |            |         |           |           |         |
|          |            |         |           |           | Fixed   |
|          |            |         |           |           | Mi      |
|          |            |         |           |           | crowave |
|          |            |         |           |           | (101)   |
+----------+------------+---------+-----------+-----------+---------+
| 1        | 1930-1970  | 19      |           |           |         |
| 930-1970 |            | 30-1970 |           |           |         |
|          | FIXED      |         |           |           |         |
| FIXED    |            | FIXED   |           |           |         |
|          | MOBILE     |         |           |           |         |
| MOBILE   | 5.388A     | MOBILE  |           |           |         |
| 5.388A   | 5.388B     | 5.388A  |           |           |         |
| 5.388B   |            | 5.388B  |           |           |         |
|          | Mobile     |         |           |           |         |
| 5.388    | -satellite | 5.388   |           |           |         |
|          | (Earth     |         |           |           |         |
|          | -to-space) |         |           |           |         |
|          |            |         |           |           |         |
|          | 5.388      |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 1        |            |         |           | NG177     |         |
| 970-1980 |            |         |           |           |         |
|          |            |         |           |           |         |
| FIXED    |            |         |           |           |         |
|          |            |         |           |           |         |
| MOBILE   |            |         |           |           |         |
| 5.388A   |            |         |           |           |         |
| 5.388B   |            |         |           |           |         |
|          |            |         |           |           |         |
| 5.388    |            |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 1        |            |         |           |           |         |
| 980-2010 |            |         |           |           |         |
|          |            |         |           |           |         |
| FIXED    |            |         |           |           |         |
|          |            |         |           |           |         |
| MOBILE   |            |         |           |           |         |
|          |            |         |           |           |         |
| MOBILE-S |            |         |           |           |         |
| ATELLITE |            |         |           |           |         |
| (Earth-t |            |         |           |           |         |
| o-space) |            |         |           |           |         |
| 5.351A   |            |         |           |           |         |
|          |            |         |           |           |         |
| 5.388    |            |         |           |           |         |
| 5.389A   |            |         |           |           |         |
| 5.389B   |            |         |           |           |         |
| 5.389F   |            |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
|          |            |         |           | 2000-2020 | Sa      |
|          |            |         |           |           | tellite |
|          |            |         |           | MOBILE-   | Communi |
|          |            |         |           | SATELLITE | cations |
|          |            |         |           |           | (25)    |
|          |            |         |           | (Earth-   |         |
|          |            |         |           | to-space) |         |
|          |            |         |           | US380     |         |
|          |            |         |           |           |         |
|          |            |         |           | NG156     |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        | 2010-2025  | 20      |           |           |         |
| 010-2025 |            | 10-2025 |           |           |         |
|          | FIXED      |         |           |           |         |
| FIXED    |            | FIXED   |           |           |         |
|          | MOBILE     |         |           |           |         |
| MOBILE   |            | MOBILE  |           |           |         |
| 5.388A   | MOBILE     | 5.388A  |           |           |         |
| 5.388B   | -SATELLITE | 5.388B  |           |           |         |
|          | (Earth     |         |           |           |         |
| 5.388    | -to-space) | 5.388   |           |           |         |
|          |            |         |           |           |         |
|          | 5.388      |         |           |           |         |
|          | 5.389C     |         |           |           |         |
|          | 5.389E     |         |           |           |         |
|          | 5.390      |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
|          |            |         |           | 2020-2025 |         |
|          |            |         |           |           |         |
|          |            |         |           | FIXED     |         |
|          |            |         |           |           |         |
|          |            |         |           | MOBILE    |         |
|          |            |         |           |           |         |
|          |            |         |           | NG177     |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        |            |         | 2025-2110 | 2025-2110 | TV      |
| 025-2110 |            |         |           |           | Au      |
|          |            |         | SPACE     | FIXED     | xiliary |
| SPACE    |            |         | OPERATION | NG118     | Broad   |
| O        |            |         |           |           | casting |
| PERATION |            |         | (Earth-   | MOBILE    | (74F)   |
| (Earth-t |            |         | to-space) | 5.391     |         |
| o-space) |            |         | (space-   |           | Cable   |
| (space-t |            |         | to-space) | 5.392     | TV      |
| o-space) |            |         |           | US90      | Relay   |
|          |            |         | EARTH     | US222     | (78)    |
| EARTH    |            |         | EXP       | US346     |         |
| EXPLO    |            |         | LORATION- |           | Local   |
| RATION-S |            |         | SATELLITE | US347     | TV      |
| ATELLITE |            |         |           | US393     | Trans   |
| (Earth-t |            |         | (Earth-   |           | mission |
| o-space) |            |         | to-space) |           | (101J)  |
| (space-t |            |         | (space-   |           |         |
| o-space) |            |         | to-space) |           |         |
|          |            |         |           |           |         |
| FIXED    |            |         | SPACE     |           |         |
|          |            |         | RESEARCH  |           |         |
| MOBILE   |            |         |           |           |         |
| 5.391    |            |         | (Earth-   |           |         |
|          |            |         | to-space) |           |         |
| SPACE    |            |         | (space-   |           |         |
| RESEARCH |            |         | to-space) |           |         |
| (Earth-t |            |         |           |           |         |
| o-space) |            |         | 5.391     |           |         |
| (space-t |            |         | 5.392     |           |         |
| o-space) |            |         | US90      |           |         |
|          |            |         | US222     |           |         |
| 5.392    |            |         | US346     |           |         |
|          |            |         |           |           |         |
|          |            |         | U347      |           |         |
|          |            |         | US393     |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        |            |         | 2110-2120 | 2110-2120 | Public  |
| 110-2120 |            |         |           |           | Mobile  |
|          |            |         | US252     | FIXED     | (22)    |
| FIXED    |            |         |           |           |         |
|          |            |         |           | MOBILE    | W       |
| MOBILE   |            |         |           |           | ireless |
| 5.388A   |            |         |           | US252     | Communi |
| 5.388B   |            |         |           |           | cations |
|          |            |         |           |           | (27)    |
| SPACE    |            |         |           |           |         |
| RESEARCH |            |         |           |           | Fixed   |
| (deep    |            |         |           |           | Mi      |
| space)   |            |         |           |           | crowave |
| (Earth-t |            |         |           |           | (101)   |
| o-space) |            |         |           |           |         |
|          |            |         |           |           |         |
| 5.388    |            |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        | 2120-2160  | 21      | 2120-2200 | 2110-2180 |         |
| 120-2160 |            | 20-2170 |           |           |         |
|          | FIXED      |         |           | FIXED     |         |
| FIXED    |            | FIXED   |           |           |         |
|          | MOBILE     |         |           | MOBILE    |         |
| MOBILE   | 5.388A     | MOBILE  |           |           |         |
| 5.388A   | 5.388B     | 5.388A  |           |           |         |
| 5.388B   |            | 5.388B  |           |           |         |
|          | Mobile     |         |           |           |         |
| 5.388    | -satellite |         |           |           |         |
|          | (space     |         |           |           |         |
|          | -to-Earth) |         |           |           |         |
|          |            |         |           |           |         |
|          | 5.388      |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        | 2160-2170  | 5.388   |           | NG153     |         |
| 160-2170 |            |         |           | NG178     |         |
|          | FIXED      |         |           |           |         |
| FIXED    |            |         |           |           |         |
|          | MOBILE     |         |           |           |         |
| MOBILE   |            |         |           |           |         |
| 5.388A   | MOBILE     |         |           |           |         |
| 5.388B   | -SATELLITE |         |           |           |         |
|          | (space     |         |           |           |         |
| 5.388    | -to-Earth) |         |           |           |         |
| 5.392A   |            |         |           |           |         |
|          | 5.388      |         |           |           |         |
|          | 5.389C     |         |           |           |         |
|          | 5.389E     |         |           |           |         |
|          | 5.390      |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
| 2        |            |         |           |           |         |
| 170-2200 |            |         |           |           |         |
|          |            |         |           |           |         |
| FIXED    |            |         |           |           |         |
|          |            |         |           |           |         |
| MOBILE   |            |         |           |           |         |
|          |            |         |           |           |         |
| MOBILE-S |            |         |           |           |         |
| ATELLITE |            |         |           |           |         |
| (space-t |            |         |           |           |         |
| o-Earth) |            |         |           |           |         |
| 5.351A   |            |         |           |           |         |
|          |            |         |           |           |         |
| 5.388    |            |         |           |           |         |
| 5.389A   |            |         |           |           |         |
| 5.389F   |            |         |           |           |         |
| 5.392A   |            |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+
|          |            |         |           | 2180-2200 | Sa      |
|          |            |         |           |           | tellite |
|          |            |         |           | MOBILE-   | Communi |
|          |            |         |           | SATELLITE | cations |
|          |            |         |           |           | (25)    |
|          |            |         |           | (space-   |         |
|          |            |         |           | to-Earth) |         |
|          |            |         |           | US380     |         |
|          |            |         |           |           |         |
|          |            |         |           | NG168     |         |
+----------+------------+---------+-----------+-----------+---------+
| Page 34  |            |         |           |           |         |
+----------+------------+---------+-----------+-----------+---------+

\* \* \* \* \*

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

(*For Eighth Report and Order*)

As required by the Regulatory Flexibility Act (RFA)[^142] an Initial
Regulatory Flexibility Analysis was incorporated in the *Third Notice of
Proposed Rule Making* (*Third Notice*) in ET Docket 00-258.[^143] The
Commission sought written public comment on the proposals in the *Third
Notice*, including comment on the IRFA. This Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.[^144]

## Need for, and Objectives of, the Eighth Report and Order 

The *Eighth Report and Order* (*Eighth R&O*) reallocates the 2155-2160
MHz band for Fixed and Mobile services and designates the 2155-2175 MHz
band for the provision of advanced wireless services (AWS). The *Eighth
R&O* is the latest in a series of decisions in ET Docket 00-258
allocating spectrum that can be used for the provision of new and
innovative wireless communications services that we have collectively
referred to as "AWS." The provision of this spectrum serves the public
interest by promoting the rapid deployment of efficient radio
communications facilities and supports the goals of Section 7 of the
Communications Act,[^145] which sets forth a policy of encouraging the
provision of new technologies and services to the public.

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

There were no comments filed that specifically addressed the rules and
policies proposed in\
the IRFA

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

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of entities that will be affected by
the rules.[^146] The RFA defines "small entity" as having the same
meaning as the term "small business," "small organization," and "small
governmental jurisdiction."[^147] In addition, the term "small business"
has the same meaning as the term "small business concern" under the
Small Business Act, unless the Commission has developed one or more
definitions that are appropriate to its activities.[^148] Under the
Small Business Act, a "small business concern" is one that: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) meets any additional criteria established by the
Small Business Administration (SBA).[^149]

*Multipoint Distribution Service, Multichannel Multipoint Distribution
Service.* Multichannel Multipoint Distribution Service (MMDS) systems,
often referred to as "wireless cable," transmit video programming to
subscribers using the microwave frequencies of Multipoint Distribution
Service (MDS) and Instructional Television Fixed Service (ITFS).[^150]
In connection with the 1996 MDS auction, the Commission defined "small
business" as an entity that, together with its affiliates, has average
gross annual revenues that are not more than \$40 million for the
preceding three calendar years. The SBA has approved of this
standard.[^151] The MDS auction resulted in 67 successful bidders
obtaining licensing opportunities for 493 Basic Trading Areas
(BTAs).[^152] Of the 67 auction winners, 61 claimed status as a small
business. At this time, we estimate that of the 61 small business MDS
auction winners, 48 remain small business licensees. In addition to the
48 small businesses that hold BTA authorizations, there are
approximately 392 incumbent MDS licensees that have gross revenues that
are not more than \$40 million and are thus considered small
entities.[^153]

In addition, the SBA has developed a small business size standard for
Cable and Other Program Distribution,[^154] which includes all such
companies generating \$12.5 million or less in annual receipts.[^155]
According to Census Bureau data for 1997, there were a total of 1,311
firms in this category that had operated for the entire year.[^156] Of
this total, 1,180 firms had annual receipts of under \$10 million, and
an additional 52 firms had receipts of \$10 million or more but less
than \$25 million.[^157] Consequently, we estimate that the majority of
providers in this service category are small businesses that may be
affected by the proposed rules and policies. Because the Commission's
action only affects MDS operations in the 2155-2160/62 MHz band, the
actual number of MDS providers who will be affected by the proposed
reallocation will only represent a small fraction of these small
businesses.

*Fixed Microwave Services*. Microwave services include common
carrier,[^158] private-operational fixed,[^159] and broadcast auxiliary
radio services.[^160] At present, there are approximately 36,708 common
carrier fixed licensees and 59,291 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not yet defined a small business with respect to
microwave services. For purposes of the FRFA, we will use the SBA's
definition applicable to Cellular and other Wireless Telecommunications
companies -- *i.e.*, an entity with no more than 1,500 persons.[^161]
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.[^162] Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.[^163] Thus,
under this size standard, majority of firms can be considered small. We
note that the number of firms does not necessarily track the number of
licensees. We estimate that all of the Fixed Microwave licensees
(excluding broadcast auxiliary licensees) would qualify as small
entities under the SBA definition.

## Description of Projected Reporting, Record Keeping, and Other Compliance Requirements

The *Eighth R&O* reallocates the 2155-2160 MHz band and designates the
2155-2175 MHz band to support the introduction of new AWS applications.
The item does not propose service rules. The ultimate use of the band
will be determined by future proceedings that adopt specific service
rules and, more generally, by market forces operating within the
framework of such rules. Accordingly, the item contains no new
reporting, recordkeeping, or other compliance requirements.

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

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.[^164]

In the *Eighth R&O*, we decided to provide additional spectrum to
support the introduction of AWS because doing so will promote the rapid
deployment of efficient radio communications. Another option would have
been to not reallocate or designate the 2155-2160 MHz band. We rejected
this alternative because doing so would have limited our ability to
provide additional spectrum and done little to minimize the potential
economic impact on small entities. Specifically, because incumbent users
in the 2155-2160 MHz band are subject to a transition plan adopted in a
separate proceeding and would ultimately be required to cease use of
spectrum in this band, a decision to not reallocate the spectrum would
only have a minimal, short-term effect on incumbent users yet make it
much more likely that valuable spectrum resources would lie fallow.
Additionally, the provision of additional spectrum that can be used to
support AWS can directly benefit small business entities by providing
new opportunities for the provision of innovative new fixed and mobile
wireless services by such entities.

A.  **Report to Congress**

    The Commission will send a copy of the *Eighth R&O*, including this
    FRFA, in a report to be sent to Congress pursuant to the
    SBREFA.[^165] In addition, the Commission will send a copy of the
    *Eighth R&O*, including the FRFA, to the Chief Counsel for Advocacy
    of the SBA. A copy of the *Eighth R&O* and the FRFA (or summaries
    thereof) will also be published in the Federal Register.[^166]

    **APPENDIX C**

    **INITIAL REGULATORY FLEXIBILITY ANALYSIS**

    (*For Fifth Notice of Proposed Rule Making*)

    As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^167] the Commission has prepared this present Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities by the
    policies and rules proposed in this *Fifth Notice of Proposed Rule
    Making* (*Fifth Notice*). 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 *Fifth Notice*
    provided in paragraph 60 of the item. The Commission will send a
    copy of this *Fifth Notice*, including this IRFA, to the Chief
    Counsel for Advocacy of the Small Business Administration
    (SBA).[^168] In addition, the *Fifth Notice* and IRFA (or summaries
    thereof) will be published in the Federal Register.[^169]

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

The *Fifth Notice* proposes relocation procedures to govern the
relocation of: (1) Broadband Radio Service (BRS)[^170] licensees in the
2150-2160/62 MHz band; and (2) Fixed Microwave Service (FS) licensees in
the 2160-2175 MHz band. The proposed relocation procedures generally
follow the Commission's relocation policies delineated in the *Emerging
Technologies* proceeding, and as modified by subsequent decisions.[^171]
These relocation policies are designed to allow early entry for new
technology providers by allowing providers of new services to negotiate
financial arrangements for reaccommodation of incumbent licensees, and
have been tailored to set forth specific relocation schemes appropriate
for a variety of different new entrants, including Personal
Communications Service (PCS) licensees, Mobile Satellite Service (MSS)
licensees, 18 GHz Fixed Satellite Service (FSS) licensees, and Nextel.
While these new entrants occupy different frequency bands, each entrant
has had to relocate incumbent operations. The relocation procedures we
propose in the *Fifth Notice* are designed to ensure an orderly and
expeditious transition of, with minimal disruption to, incumbent BRS and
FS operations from the 2150-2160/62 MHz and 2160-2175 MHz bands,
respectively, in order to allow early entry for new AWS licensees into
these bands.

The *Fifth Notice* seeks comment on what specific relocation procedures
are best suited for the incumbent BRS operators in the 2150-2160/62 MHz
band. For example, we propose a mandatory negotiation period that must
expire before an emerging technology licensee could proceed to request
involuntary relocation and, due to the nature of BRS, ask whether we
should establish separate, individually triggered negotiation periods
for each BRS licensee. We also seek to develop rules that will enable
AWS licensees to determine when their proposed operations would cause
interference to incumbent BRS systems operating in the 2150-2160 MHz
band, such that the relocation of those systems would be necessary
before AWS operations could begin. We identified a number of options for
setting forth these technical requirements, including implementation of
a "distance" table that identifies the distance from an AWS station
within which a BRS station must be protected, and the use of the TIA TSB
10-F standard to determine when interference is expected to occur to BRS
stations. The *Fifth Notice* similarly seeks comment on specific
relocation procedures for incumbent FS operations in the 2160-2175 MHz
band, including options for modifying sunset periods to accommodate new
AWS entrants in the band. The *Fifth Notice* recognizes that we have
traditionally provided for cost sharing among multiple new entrants that
benefit from the relocation of incumbent licensees, and seeks comment on
what cost sharing responsibilities should be implemented between the
first AWS entrant and other subsequent AWS entrants in the 2150-2160/62
MHz and the 2160-2175 MHz bands. We note that in the *Emerging
Technologies* and *Microwave Cost Sharing* proceedings, the Commission
established procedures for relocating incumbent operations by new
technology licensees in the 2160-2200 MHz band whereby the new licensees
that relocate a paired microwave link with one path in the 2110-2150 MHz
portion of the band and the other paired path in the 2160-2200 MHz
portion of the band are entitled to reimbursement for a portion of their
relocation expenses. Because these procedures encompass the 2160-2175
MHz band discussed in the *Fifth Notice*, we seek comment on the
appropriate application of cost sharing requirements. One option is to
establish new cost sharing procedures for the band that are based on our
existing Part 24 cost sharing rules that were used for PCS relocation,
while at the same time retaining and integrating the existing cost
sharing requirement in Part 101.

After evaluating comments filed in response to the *Fifth Notice*, the
Commission will examine further the impact of all rule changes on small
entities and set forth its findings in the Final Regulatory Flexibility
Analysis.

**B. Legal Basis**

The proposed action is authorized under Sections 1, 4(i), 7(a), 301,
303(f), 303(g), 303(r), 307, 316, and 332 of the Communications Act of
1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301, 303(f),
303(g), 303(r), 307, 316, and 332.

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

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.[^172] The RFA generally
defines the term \"small entity\" as having the same meaning as the
terms \"small business,\" \"small organization,\" and \"small
governmental jurisdiction.\"[^173] In addition, the term \"small
business\" has the same meaning as the term \"small business concern\"
under the Small Business Act.[^174] 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.[^175]

*Broadband Radio Service.* The Broadband Radio Service (BRS) consists of
Multichannel Multipoint Distribution Service (MMDS) systems, which were
originally licensed to transmit video programming to subscribers using
the microwave frequencies of Multipoint Distribution Service (MDS) and
Instructional Television Fixed Service (ITFS).[^176] In connection with
the 1996 MDS auction, the Commission defined "small business" as an
entity that, together with its affiliates, has average gross annual
revenues that are not more than \$40 million for the preceding three
calendar years. The SBA has approved of this standard.[^177] The MDS
auction resulted in 67 successful bidders obtaining licensing
opportunities for 493 Basic Trading Areas (BTAs).[^178] Of the 67
auction winners, 61 claimed status as a small business. At this time, we
estimate that of the 61 small business MDS auction winners, 48 remain
small business licensees. In addition to the 48 small businesses that
hold BTA authorizations, there are approximately 392 incumbent MDS
licensees that have gross revenues that are not more than \$40 million
and are thus considered small entities.[^179]

In addition, the SBA has developed a small business size standard for
Cable and Other Program Distribution,[^180] which includes all such
companies generating \$12.5 million or less in annual receipts.[^181]
According to Census Bureau data for 1997, there were a total of 1,311
firms in this category that had operated for the entire year.[^182] Of
this total, 1,180 firms had annual receipts of under \$10 million, and
an additional 52 firms had receipts of \$10 million or more but less
than \$25 million.[^183] Consequently, we estimate that the majority of
providers in this service category are small businesses that may be
affected by the proposed rules and policies. Because the Commission's
proposals only affect BRS operations in the 2155-2160/62 MHz band, the
actual number of BRS providers who will be affected by the proposed
relocation procedures will only represent a small fraction of these
small businesses.

*Fixed Microwave Services*. Microwave services include common
carrier,[^184] private-operational fixed,[^185] and broadcast auxiliary
radio services.[^186] At present, there are approximately 36,708 common
carrier fixed licensees and 59,291 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not yet defined a small business with respect to
microwave services. For purposes of the FRFA, we will use the SBA's
definition applicable to Cellular and other Wireless Telecommunications
companies -- *i.e.*, an entity with no more than 1,500 persons.[^187]
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.[^188] Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.[^189] Thus,
under this size standard, majority of firms can be considered small. We
note that the number of firms does not necessarily track the number of
licensees. We estimate that all of the Fixed Microwave licensees
(excluding broadcast auxiliary licensees) would qualify as small
entities under the SBA definition.

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

The *Fifth Notice* seeks comment on proposals for relocation procedures
applicable to BRS licensees in the 2150-2160/62 MHz band and FS
licensees in the 2160-2175 MHz band, but does not propose service rules.
Thus, the item contains no new reporting, recordkeeping, or other\
compliance requirements.

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

    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.[^190]

    The proposals contained in the *Fifth Notice* are designed to
    provide spectrum to support the introduction of new advanced mobile
    and fixed terrestrial wireless services. This action is critical to
    the continuation of technological advancement, furthers the goals of
    the Telecommunications Act of 1996, and serves the public interest.
    We are likewise committed to ensuring that the disruption to
    incumbent operations and the economic impact of this proceeding on
    incumbent licensees is minimal. As discussed in Section A, *supra,*
    we have proposed to establish rules based on our existing *Emerging
    Technologies* relocation procedures to govern the entry of new
    licensees into the 2150-2160/62 MHz and 2160-2175 MHz bands. An
    alternative option would be to offer no relocation process, and
    instead require incumbent licensees to cease use of the band by a
    date certain and prohibit new licensees from entering the band until
    that date. We believe that an *Emerging Technologies*-based
    relocation procedure is preferable, as it draws on established and
    well known principles (such as time-based negotiation periods and
    the requirement of negotiating in good faith), benefits small BRS
    and FS licensees because the proposals would require new AWS
    licensees to pay for the costs to relocate their incumbent
    operations to comparable facilities, and -- for small AWS licensees
    -- offers a process by which new services can be brought to the
    market expeditiously. Moreover, we believe that the provision of
    additional spectrum that can be used to support AWS will directly
    benefit small business entities by providing new opportunities for
    the provision of innovative new fixed and mobile wireless services.

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rule**

None.

**JOINT STATEMENT OF**

**COMMISSIONERS MICHAEL J. COPPS AND**

**JONATHAN S. ADELSTEIN**

*Re: 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*

This item initiates an important discussion on the relocation procedures
that ultimately will apply to Broadband Radio Service (BRS) licensees in
the 2150-2160/62 MHz band. This discussion is particularly significant
because the adopted procedures will have a direct impact on a subgroup
of future Advanced Wireless Services (AWS) licensees that will be
responsible for relocation of the BRS portion of the AWS spectrum block.
Consequently, timely resolution of the relocation issues raised in the
NPRM portion of this item is critical to the Commission's current plans
to conduct an auction of AWS spectrum next summer.

Over seven (7) weeks ago, we and our colleagues committed to launching a
proceeding to examine the narrow issue of limiting the ability of
designated entities (DEs) who have a relationship with the largest
wireless carriers from having access to bidding credits in the AWS and
other future auctions. We remain very interested in a timely resolution
of this issue and firmly believe that it can be completed well in
advance of next year's auction. The Commission now has several open
proceedings affecting the upcoming AWS auction that need to be resolved
before a successful AWS auction can be held. We need to move quickly on
the DE question just as we are doing with the proceeding at hand.

[^1]: Advanced Wireless Services is the collective term we use for new
    and innovative fixed and mobile terrestrial wireless applications
    using bandwidth that is sufficient for the provision of a variety of
    applications, including those using voice and data (such as internet
    browsing, message services, and full-motion video) content. Although
    AWS is commonly associated with so-called third generation (3G)
    applications and has been predicted to build on the success of such
    current-generation commercial wireless services as cellular and
    Broadband PCS, the services ultimately provided by AWS licensees are
    only limited by the fixed and mobile designation of the spectrum we
    allocate for AWS and the service rules we ultimately adopt for the
    bands.

[^2]: The Multipoint Distribution Service (MDS) was renamed the
    Broadband Radio Service (BRS) in the *BRS R&O*. *See* Amendment of
    Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate
    the Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 MHz and 2500-2690 MHz
    Bands, WT Docket No. 03-66, *Report and Order and Further Notice of
    Proposed Rulemaking*, 19 FCC Rcd 14165 (2004) ("*BRS R&O and
    FNPRM*"), *recon. pending*. Therefore, all former MDS licensees will
    now be referred to as BRS licensees. As noted in para. 5, *infra,*
    BRS uses 2160-2162 MHz only in the top 50 markets.

[^3]: *See* Redevelopment of Spectrum to Encourage Innovation in the Use
    of New Telecommunications Technologies, ET Docket No. 92-9, *First
    Report and Order and Third Notice of Proposed Rule Making*, 7 FCC
    Rcd 6886 (1992); *Second Report and Order*, 8 FCC Rcd 6495 (1993);
    *Third Report and Order and Memorandum Opinion and Order*, 8 FCC Rcd
    6589 (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 1943 (1994);
    *Second Memorandum Opinion and Order*, 9 FCC Rcd 7797 (1994); *aff'd
    Association of Public Safety Communications Officials-International,
    Inc. v. FCC*, 76 F.3d 395 (D.C. Cir. 1996) (collectively, "*Emerging
    Technologies* proceeding"). *See also Teledesic, LLC v. FCC*, 275
    F.3d 75 (D.C. Cir. 2001) (affirming modified relocation scheme for
    new satellite entrants to the 17.7 -- 19.7 GHz band). *See also*
    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); *Second Report and Order*, 12 FCC Rcd 2705 (1997);
    *Memorandum Opinion and Order on Reconsideration*, 15 FCC Rcd 13999
    (2000) (collectively, "*Microwave Cost Sharing* proceeding").

[^4]: These services are now licensed under Miscellaneous Wireless
    Communications Services in Part 27 of the Rules.

[^5]: *See* 47 C.F.R. Parts 22, 27, and 101.

[^6]: *See Emerging Technologies First Report and Order and Third Notice
    of Proposed Rule Making*, 7 FCC Rcd at 6889-90, ¶ 21 ("*Emerging
    Technologies First R&O and Third NPRM*").

[^7]: *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 Rule Making and Order*, 16 FCC Rcd 596 (2001) ("*AWS
    Notice*").

[^8]: *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, *Third Report and
    Order, Third Notice of Proposed Rule Making, and Second Memorandum
    Opinion and Order,* 18 FCC Rcd 2223 at 2238, ¶ 28 (2003) ("*AWS
    Third R&O, Third NPRM and Second MO&O*").

[^9]: *See* Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service,
    ET Docket No. 95-18, *Third Report and Order and Third Memorandum
    Opinion and Order,* 18 FCC Rcd 23638 at ¶ 65 (2003) ("*MSS Third
    R&O*").

[^10]: *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, *Second Report
    and Order,* 17 FCC Rcd 23193 (2002) ("*AWS Second R&O*").

[^11]: *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, *Memorandum
    Opinion and Order and Further Notice of Proposed Rule Making*, 16
    FCC Rcd 16043 at 16060-61, ¶¶ 38-41 (2001) ("*AWS Further Notice*").

[^12]: *See AWS Further Notice*, 16 FCC Rcd at 16061, ¶ 40.

[^13]: *See AWS Second R&O*, 17 FCC Rcd at 23212-13, ¶¶ 40-41.

[^14]: *See AWS Third NPRM*, 18 FCC Rcd at 2256-57, ¶¶ 71-73.

[^15]: *See BRS R&O and FNPRM*, 19 FCC Rcd at 14169-70, ¶ 6. The
    Commission had previously considered but rejected the use of the
    2500-2690 MHz band for AWS. *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, *First Report and Order and Memorandum Opinion and Order*,
    16 FCC Rcd 17222 (2001) ("*AWS First R&O and MO&O*"). The Commission
    adopted a primary Fixed and Mobile (except aeronautical mobile)
    allocation for the 2495-2500 MHz band so that this spectrum could be
    integrated with the revised BRS band plan in the 2500-2690 MHz band.
    *See* Review of the Spectrum Sharing Plan Among Non-Geostationary
    Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz
    Bands; Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Service to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, IB Docket No. 02-364, ET Docket No.
    00-258, *Report and Order, Fourth Report and Order and Further
    Notice of Proposed Rulemaking*, 19 FCC Rcd 13386 (2004) ("*Big LEO
    Spectrum Sharing Order*"), *recon. pending*.

[^16]: *See BRS R&O*, 19 FCC Rcd at 14177-78, ¶¶ 23-24. There are other
    BRS channels in the 2596-2644 MHz, 2650-2656 MHz, 2662-2668 MHz, and
    2674-2680 MHz bands, as well as response channels in the 2686-2690
    MHz band. *See* *AWS First R&O and MO&O*, 16 FCC Rcd 17222 (2001).

[^17]: Historically, the 2150-2162 MHz and 2500-2690 MHz bands were
    predominantly used for one‑way analog video transmission.
    Increasingly, BRS operators are using these bands for two-way
    digital broadband services. In October 1996, the Commission decided
    to allow high‑speed digital data applications on BRS operations,
    including Internet access. Then, in 1998, the Commission approved
    the use of two‑way transmissions by the BRS, effectively enabling
    the provision of voice, video and data services. In 2001, a mobile,
    except aeronautical mobile, service allocation was added to the
    2500-2690 MHz band. *See* *AWS First R&O and MO&O*, 16 FCC Rcd 17222
    (2001). Under an informal agreement among BRS licensees, the
    principal use of the 2150-2160/62 MHz band is for response stations
    transmitting to hub stations, which are generally known as upstream
    communications. A response station in a two-way system is a
    customer-premises transceiver used for the reception of downstream
    and transmission of upstream signals as part of a large system of
    such stations licensed under the authority of a single license. A
    downstream maximum e.i.r.p. of 33 dBW (2000 watts) per 6 MHz is
    permitted. A hub station is a receive-only station licensed as part
    of a system of response stations in a two-way system and used for
    the purpose of receiving the upstream transmissions of those
    response stations. *See AWS Third NPRM*, 18 FCC Rcd at 2253-54, ¶
    66, n.163.

[^18]: The Commission provided the BRS service with an extra 2 megahertz
    in the 50 largest metropolitan areas so that there would be
    sufficient bandwidth (6 MHz) for a second analog television channel.
    The 2 megahertz at 2160-2162 MHz can only be assigned where there is
    evidence that no harmful interference would occur to any authorized
    co-frequency point-to-point facility. *See* 47 C.F.R. § 27.5(i)(1);
    *BRS R&O and FNPRM,* 19 FCC Rcd at 14171-72, ¶ 11.

[^19]: *See* 47 C.F.R. Part 27 -- Miscellaneous Wireless Communications
    Services (2004); *BRS R&O and FNPRM*, 19 FCC Rcd 14165 (2004).

[^20]: *See Emerging Technologies First R&O and Third NPRM*, 7 FCC Rcd
    at 6889-90, ¶ 21.

[^21]: In the *AWS Third NPRM,* the Commission noted that there were 27
    BRS licenses for the 2160-2162 MHz band on a primary basis. *See*
    Appendix E, attached to the *AWS Third NPRM.*

[^22]: *See* 47 C.F.R. § 2.106, footnote NG153.

[^23]: *See* <http://wireless.fcc.gov/auctions/06/> for information on
    Auction 6. This auction made available a maximum of 78 MHz of
    primary spectrum in each BTA, but with the caveat that BTA licensees
    would protect incumbent stations. In the MDS Bidder Information
    Package, the Commission noted: "In 1992, the 2160-2162 MHz frequency
    was reallocated to emerging technologies, and thus, any subsequent
    MDS use of these 2 MHz will be secondary." *See* FCC Auction \[for\]
    Multipoint and/or Multichannel Distribution Service (MDS)
    Authorizations for Basic Trading Areas, Bidder Information Package
    (1995), at 21 (available at
    <http://wireless.fcc.gov/auctions/06/releases.html>). In the *AWS
    Third NPRM,* the Commission noted that there were 16 BRS stations
    operating with secondary status. *See* Appendix E, attached to the
    *AWS Third NPRM.*

[^24]: *See BRS R&O*, 19 FCC Rcd at 14183-84 ¶ 37-38. We note that
    petitions for reconsideration of the *BRS R&O* are currently
    pending.

[^25]: *See* FCC to Commence Spectrum Auction that will Provide American
    Consumers New Wireless Broadband Services, *News Release*, (rel.
    Dec. 29, 2004). We previously adopted service rules for this band.
    *See* Service Rules for Advanced Wireless Services in the 1.7 GHz
    and 2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC
    Rcd 25162 (2003) ("*AWS 1.7 and 2.1 GHz Service Rules R&O*"); *Order
    on Reconsideration*, FCC 05-149 (rel. August 15, 2005).

[^26]: In the *Eighth R&O,* discussed *infra*, we are reallocating this
    band for Fixed and Mobile services in order to promote AWS use.

[^27]: *See* *AWS Third R&O, Third NPRM and Second MO&O*, 18 FCC Rcd at
    2255, ¶ 68.

[^28]: *Id.* *See also* *AWS Second R&O*, 17 FCC Rcd at 23212, ¶ 40.

[^29]: *See AWS Third NPRM*, 18 FCC Rcd at 2255, ¶ 68.

[^30]: *Id*.

[^31]: As part of our decision to redesignate the 2020-2025 MHz and
    2165-2180 MHz bands for Fixed and Mobile services in the *AWS Third
    R&O*, we also proposed options for pairing the 5 megahertz of
    spectrum being made available in the 2020-2025 MHz band with 5
    megahertz of spectrum in the 2155-2180 MHz band for new Fixed and
    Mobile services, including AWS. *See AWS Third NPRM*, 18 FCC Rcd at
    2255 ¶¶ 69-70 (2003). As a result, in the *AWS Sixth R&O*, the
    Commission paired the 2020-2025 MHz band with the 2175-2180 MHz band
    and designated these bands for AWS use. *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, ET Docket Not. 95-18, *Sixth Report and Order,
    Third Memorandum Opinion and Order, and Fifth Memorandum Opinion and
    Order*, 19 FCC Rcd 20720 (2004) ("*AWS Sixth R&O, Third MO&O, and
    Fifth MO&O*").

[^32]: *See AWS Third NPRM*, 18 FCC Rcd at 2255, ¶ 68.

[^33]: *See*, *e.g.*, Ad Hoc MDS Alliance Reply Comments to *AWS Third
    NPRM* at 3-4; ArrayCom Comments to *AWS Third NPRM* at 3-5; and
    Cingular Comments to *AWS Third NPRM* at 3. As noted above, the
    2175-2180 MHz band was designated for AWS use in the *AWS Sixth
    R&O.* *See supra* note Error: Reference source not found*.*

[^34]: *See* CTIA Comments to *AWS Third NPRM* at 6; *see also* ArrayCom
    Comments to *AWS Third NPRM* at 3.

[^35]: *See, e.g.*, Cingular Wireless Comments to *AWS Third NPRM* at 3;
    ICO Global Communications Comments to *AWS Third NPRM* at 6; and ICO
    Reply Comments to *AWS Third NPRM* at 7.

[^36]: *See*, *e.g.*, CTIA Comments to *AWS Third NPRM* at 6; Verizon
    Comments to *AWS Third NPRM* at 2; AT&T Wireless Reply Comments to
    *AWS Third NPRM* at 7-8; Ad Hoc MDS Alliance Comments to *AWS Third
    NPRM* at 5; and WCA Comments to *AWS Third NPRM* at 27-28.

[^37]: Ericsson Comments to *AWS Third NPRM* at 7. *See also* Ericsson
    Reply Comments to *AWS Third NPRM* at 4.

[^38]: *See*, *e.g*., note Error: Reference source not found, *supra*;
    Amendment of Section 2.106 of the Commission's Rules to Allocate
    Spectrum at 2 GHz for use by the Mobile-Satellite Service, ET Docket
    No. 95-18, *Second Report and Order and Second Memorandum Opinion
    and Order,* 15 FCC Rcd 12315 (2000) ("*MSS Second R&O*");
    Redesignation of the 17.7-19.7 GHz Frequency Band, Blanket Licensing
    of Satellite Earth Stations in the 17.7-20.2 GHz and 27.5-30.0 GHz
    Frequency Bands, and the Allocation of Additional Spectrum in the
    17.3-17.8 GHz and 24.75-25.25 GHz Frequency Bands for Broadcast
    Satellite-Service Use, IB Docket No. 98-172, *Report and Order*, 15
    FCC Rcd 13340 (2000) ("*18 GHz Relocation Proceeding*"), *aff'd sub
    nom., Teledesic LLC v. FCC,* 275 F.3d 75 (D.C. Cir. 2001); and
    Improving Public Safety Communications in the 800 MHz Band,
    Consolidating the 800 and 900 MHz Industrial/Land Transportation and
    Business Pool Channels, WT Docket 02-55, 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, 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, *Report and Order, Fourth Report and Order,
    Fourth Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969
    (2004) ("*800 MHz R&O*").

[^39]: *See, e.g., AWS Further Notice*, 16 FCC Rcd 16043; *AWS Third
    NPRM*, 18 FCC Rcd 2223.

[^40]: We ask that parties file new comments on the issues in this
    *Fifth Notice*, rather than incorporate by reference previously
    filed comments in this docket.

[^41]: *See supra* note Error: Reference source not found.

[^42]: Comments on issues regarding the Commission's new BRS band plan
    and its suitability as replacement spectrum for BRS incumbents
    currently occupying the 2150-2160/62 MHz band are outside the scope
    of this *Fifth Notice* and should be addressed in the appropriate
    proceedings. *See generally, BRS R&O and FNPRM* in WT Docket No.
    03-66; *Big LEO Spectrum Sharing Order* in IB Docket No. 02-364 and
    ET Docket No. 00-258.

[^43]: *See* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 MHz Band, WT Docket No. 03-66, *Notice of Proposed Rule
    Making and Memorandum Opinion and Order,* 18 FCC Rcd 6722 at 6734, ¶
    23 (2003) ("*BRS NPRM*").

[^44]: *Id.*

[^45]: *BRS NPRM*, 18 FCC Rcd at 6734-35, ¶ 24.

[^46]: *See BRS R&O,* 19 FCC Rcd at 14189-94, ¶¶ 52-67 (*recon.
    pending*).

[^47]: Many parties that have filed comments in this proceeding have
    proposed such systems, and, in many cases, operate similarly
    configured systems in the cellular and PCS bands that could be
    readily upgraded to incorporate new AWS spectrum.

[^48]: *See AWS 1.7 and 2.1 GHz Service Rules R&O*, 18 FCC Rcd 25162;
    *Order on Reconsideration*, FCC 05-149 (rel. August 15, 2005).

[^49]: In this case, the AWS licensee may be able to share the cost of
    relocating BRS operations in an area adjacent to its service area
    with an AWS licensee authorized in the adjacent area, as discussed
    below.

[^50]: *See AWS Sixth R&O,* 19 FCC Rcd at 20753, ¶ 71 (requiring AWS
    licensees in the 1995-2000 MHz and 2020-2025 MHz bands to relocate
    incumbent BAS operations in all affected BAS markets, including
    those markets where the AWS licensee provides partial, minimal, or
    no service). *See also 800 MHz R&O,* 19 FCC Rcd at 15097, ¶ 256
    (requiring Nextel to follow its agreement to relocate BAS licensees
    across multiple TV markets to avoid inter-market coordination and
    interference problems).

[^51]: *See AWS Third NPRM,* 18 FCC Rcd at 2256, ¶ 71.

[^52]: *See Emerging Technologies Third R&O*, 8 FCC Rcd 6589 at 6591 &
    6603, ¶¶ 5 & 36.

[^53]: *See Microwave Cost Sharing First Report and Order and Further
    Notice of Proposed Rule Making,* 11 FCC Rcd 8825 at ¶¶ 27-34 (2000)
    ("*Microwave Cost Sharing First R&O and FNPRM*"). *See also* 47
    C.F.R. §§§ 101.73, 101.75, 101.91.

[^54]: Consistent with this purpose, the Commission's relocation
    procedures provide that during involuntary relocation, new entrants
    would only be required to provide incumbents with enough throughput
    to satisfy their system use at the time of relocation, not to match
    the overall capacity of the system. *See* 47 C.F.R. § 101.75.

[^55]: For example, in ET Docket No. 95-18, the Commission adopted a
    policy in which new MSS entrants would relocate incumbent BAS
    systems operating in the 1990-2110 MHz band to the 2025-2110 MHz
    band -- a reduction of 35 megahertz of spectrum. The Commission
    determined that BAS could achieve comparable facilities in the
    reduced spectrum because the relocation would entail an upgrade of
    equipment from analog to digital. *See* *MSS Second R&O*, 15 FCC Rcd
    12315; *MSS Third R&O*, 18 FCC Rcd 23638.

[^56]: Comments should be limited to the issue of the provision of
    comparable facilities by new entrants. *See also supra* note Error:
    Reference source not found.

[^57]: *See* 47 C.F.R. § 2.105(c).

[^58]: As noted above, new entrants for a portion of the spectrum now
    occupied by BRS channel 1 (2150-2156 MHz) will be licensed in the
    upcoming AWS auction of the 2110-2155 MHz band. The remaining
    spectrum now occupied by BRS channels 2 and 2A (2156-2162 MHz) and
    the upper one megahertz of BRS channel 1 (2155-2156 MHz) will be
    licensed at a later date. *See supra* para. 6.

[^59]: Currently, the 2150-2162 MHz band is used to provide subscribers
    in 30 to 50 markets (urban and rural) across the country with
    wireless broadband service and, in some cases, multichannel video
    programming service. *See Ex Parte* filing on behalf of Wireless
    Communications Association International, Inc. (Aug. 5, 2005).

[^60]: 47 U.S.C. § 316.

[^61]: 47 U.S.C. § 316 (a)(1).

[^62]: *California Metro Mobile Communications v. FCC,* 365 F.3d 38, 45
    (D.C. Cir.2004) ("*CMMC*"). Among other things, the court found that
    section 316 is not unambiguous and therefore deferred to the
    Commission's interpretation that "section 316 contains no limitation
    on the time frame within which it may act to modify a license and
    that its action under the section is not subject to the limitations
    on revocation, modification or reconsideration imposed by
    \[s\]ection 405." 365 F.3d at 45 (*citations omitted*)*.* The court
    also found that the Commission's modification served the public
    interest, even though the modification was based on potential rather
    than actual interference, and it caused a minor disruption in CMMC's
    operations. *Id*. at 46*.*

[^63]: *Peoples Broadcasting Co. v. United States*, 209 F.2d 286, 288
    (D.C. Cir. 1953). In *People's Broadcasting*, the court upheld the
    Commission's authority to modify a television station license
    without an application by the licensee for such a modification,
    noting that "if modification of licenses were entirely dependent
    upon the wishes of existing licensees, a large part of the
    regulatory power of the Commission would be nullified."

[^64]: *Community Television, Inc. v. FCC*, 216 F.3d 1133, 1140 (D.C.
    Cir. 2000). In *Community Television*, the court upheld the FCC's
    rules establishing procedures and timetable under which television
    broadcasting would migrate from analog to digital technology.

[^65]: *See Rainbow Broadcasting v. FCC*, 949 F.2d 405, 410 (D.C. Cir.
    1991), in which the court held the Commission had the authority to
    allow noncommercial and commercial television licensees to exchange
    channels without exposing licensees to competing applications,
    despite third-party interest in acquiring swapped license.

[^66]: *See, e.g.,* *Ex Parte* filing of Private Networks, Inc. (Nov. 6,
    2003) (noting that some grandfathered BRS licensees have long-term
    leases with commercial operators for use of their spectrum).

[^67]: *See* *BRS R&O,* 19 FCC Rcd at 14232-34 ¶¶ 177-81. Under the
    Secondary Markets policy, licensees may engage in either "spectrum
    manager leasing" whereby they retain *de facto* control of the
    spectrum and *de jure* control of the license or "*de facto*
    transfer leasing" whereby they transfer *de facto* control of the
    spectrum to a lessee. *See* Promoting Efficient Use of Spectrum
    Through Elimination of Barriers to the Development of Secondary
    Markets, WT Docket No. 00-230, *Report and Order and Further Notice
    of Proposed Rulemaking*, 18 FCC Rcd 20604 (2003) ("*Secondary
    Markets Order and Notice*"), *Erratum* 18 FCC Rcd 24817 (2003).

[^68]: A private agreement between the licensee and lessee should
    address how new facilities or payment for "comparable facilities"
    will be shared between the parties.

[^69]: This issue should be addressed in a private agreement between the
    licensee and lessee.

[^70]: *See, e.g., MSS Second MO&O,* 15 FCC Rcd at 12361-62, ¶ 134; *MSS
    Third MO&O,* 18 FCC Rcd at 23675-76, ¶¶ 79-80; *18 GHz Relocation
    Proceeding*, 15 FCC Rcd at 13466, ¶ 75.

[^71]: *See BRS R&O* at 14189-90, ¶ 54. Reversion upon cancellation or
    forfeiture of an existing license to the licensee that holds the
    corresponding BTA license is consistent with the approach the
    Commission has taken in other wireless services. *See, e.g.,*
    Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and
    38.6-40.0 GHz bands, ET Docket No. 95-183, *Report and Order and
    Second Notice of Proposed Rulemaking,* 12 FCC Rcd 18600, 18637-78 ¶
    79 (1997).

[^72]: *See Emerging Technologies First R&O and Third NPRM,* 7 FCC Rcd
    6886 at ¶¶ 30-31.

[^73]: *See, e.g.,* 47 C.F.R. §§ 101.81 and 101.83.

[^74]: As noted above, after January 16, 1992, licensees in the
    2160-2162 MHz band were already authorized on a secondary basis.

[^75]: Similar procedures are set forth in Section 101.81 of the
    Commission's rules for other adjacent *Emerging Technologies* bands.
    *See* 47 C.F.R. § 101.81. *See also, e.g.,* 47 C.F.R. § 101.83
    (procedures for major modifications of station licensees in the
    18.3-19.3 GHz band).

[^76]: It is unlikely that new BRS facilities will be authorized in this
    band since the Commission assigned this spectrum via a competitive
    bidding process in 1996. *See supra* note Error: Reference source
    not found.

[^77]: *See BRS R&O,* 19 FCC Rcd at 14189-90, ¶ 54.

[^78]: ^?^ *See* 4*7* C.F.R. § 101.71 (voluntary negotiations) and §
    101.73 (mandatory negotiations); *see also Emerging Technologies
    Third R&O*, 8 FCC Rcd at 6595, ¶ 15; *Microwave Cost Sharing First
    R&O and FNPRM,* 11 FCC Rcd 8825.

[^79]: *See BRS R&O and FNPRM*, 19 FCC Rcd at 14197-208, ¶¶ 72-103.

[^80]: *See Emerging Technologies Third R&O*, 8 FCC Rcd at 6595, ¶ 15.

[^81]: 47 C.F.R. § 101.73.

[^82]: *See* 47 C.F.R. § 101.75 for details on costs and the definition
    of comparable facilities.

[^83]: 47 C.F.R. § 101.75.

[^84]: *See supra* para. 6 (describing how the Commission has set forth
    service rules and anticipated auction timing for the 2150-2155 MHz
    band, whereas development of the 2155-2160 MHz band is on a
    different timeline).

[^85]: *See* 47 C.F.R. § 24.237. *See also* Amendment of the
    Commission's Rules to Establish New Personal Communications
    Services*, Second Report and Order*, 8 FCC Rcd 7700, 7762 ¶ 150
    (1993); *Memorandum Opinion and Order,* 9 FCC Rcd 4957, 5029 ¶ 186
    (1994).

[^86]: PCS and AWS licensees may use TIA TSB 10-F for this purpose or
    "an alternative method" when agreed to by all parties. *See* 47
    C.F.R. § 24.237(a).

[^87]: The Commission also adopted TIA TSB 10-F as the criteria for
    determining potential MSS-ancillary terrestrial component (ATC) to
    FS interference and Nextel to Broadcast Auxiliary Service (BAS)
    interference. *See MSS Third R&O,* 18 FCC Rcd at 23672, ¶ 70; *800
    MHz R&O,* 19 FCC Rcd at 15100, ¶ 263.

[^88]: *See* *supra* note Error: Reference source not found; *Emerging
    Technologies First R&O and Third NPRM*, 7 FCC Rcd 6886 at ¶¶ 21-24.
    These procedures continue to apply to these bands except as modified
    in part in later decisions and as we propose in this *Notice*.

[^89]: *See supra* note Error: Reference source not found.

[^90]: *See generally,* 47 C.F.R. §§ 101.69-101.79.

[^91]: *See MSS Second R&O*, 15 FCC Rcd 12315.

[^92]: *Id*. at 12331, ¶ 46 and 12343, ¶ 86.

[^93]: *See* 47 C.F.R. 101.73(d). As then adopted, this section
    provided, in part, that "\[m\]andatory negotiations will commence
    when the Mobile-Satellite Service (MSS) licensee informs the fixed
    microwave licensee in writing of its desire to negotiate . . ." In
    explaining the operation of this rule, the Commission stated that
    "\[b\]ecause FS microwave is not an integrated, dynamically
    coordinated service like BAS, we will not establish a particular
    start time for negotiations. Rather, we will adhere to our *Emerging
    Technologies* policy, which states that the negotiation period
    begins when the *[first]{.underline}* licensee in the new service
    (here, MSS) informs the *[first]{.underline}* licensee in the
    incumbent service (FS microwave), in writing, of its desire to
    negotiate." \[Emphasis added.\] As a result, there would be a single
    negotiation period that applied simultaneously to all FS incumbents.
    *See MSS Second R&O* at 12343, ¶ 86.

[^94]: *See* 47 C.F.R. 101.79(a). *See MSS Second R&O*, 15 FCC Rcd 12315
    at ¶ 79-80, citing *Microwave Cost Sharing First R&O and FNPRM*, 11
    FCC Rcd 8825 at ¶ 66.

[^95]: *AWS Second R&O*, 17 FCC Rcd at 23214-15, ¶¶ 42-46. The language
    of Section 101.73(d) was also amended to broaden its scope to
    include FS relocation by AWS.

[^96]: *AWS Second R&O*, 17 FCC Rcd at 23215, ¶ 46.

[^97]: *Id*.

[^98]: *See generally, AWS Third R&O and Third NPRM,* 18 FCC Rcd 2223*.*

[^99]: *AWS Sixth R&O*, 19 FCC Rcd at 20754, ¶ 76.

[^100]: *Id*. The *AWS Sixth R&O* also adopted relocation and
    reimbursement procedures for the 1910-1915 MHz and
    1995-2000/2020-2025 MHz bands.

[^101]: We emphasize that even if there were to be multiple sunset dates
    within the 2160-2175 MHz band, all FS incumbents within a sub-block
    of that band (*e.g.* 2170-2175 MHz) would be subject to the same
    sunset date.

[^102]: For example, in the 2150-2160 MHz block, discussed *supra*, we
    proposed that a unified sunset date could be ten years from the date
    that the first AWS license is issued in the last portion of the band
    to be licensed.

[^103]: We do *not* propose to change the existing relocation rules that
    apply to FS relocations by MSS licensees in the 2180-2200 MHz band.
    *See* para. 50, *infra.*

[^104]: *See Emerging Technologies First R&O and Third NPRM,* 7 FCC Rcd
    6886.

[^105]: *See* Reorganization and Revision of Parts 1, 2, 21, and 94 of
    the Rules to Establish a New Part 101 Governing Terrestrial
    Microwave Fixed Radio Services, WT Docket No. 94-148, *Report and
    Order*, 11 FCC Rcd 13449 (1996).

[^106]: *See* Amendment of Part 22 of the Commission's Rules to Benefit
    the Consumers of Air-Ground Telecommunications Services, WT Docket
    No. 03-103, Biennial Regulatory Review\--Amendment of Parts 1, 22,
    and 90 of the Commission's Rules, Amendment of Parts 1 And 22 of the
    Commission's Rules To Adopt Competitive Bidding Rules For Commercial
    And General Aviation Air-Ground Radiotelephone Service, WT Docket
    No. 05-42, *Report and Order and Notice of Proposed Rulemaking*, 20
    FCC Rcd 4403 at ¶ 159 (2005).

[^107]: *See supra* note Error: Reference source not found.

[^108]: *See* *Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd
    at 8861, ¶ 71. The Commission also noted that, absent such cost
    sharing, a new entrant might decline to relocate an incumbent even
    where the benefits of relocation exceeded the costs, if the benefits
    were distributed among many new entrants while the costs were borne
    only by the relocator. *See* *Microwave Cost Sharing Notice of
    Proposed Rulemaking*, 11 FCC Rcd at 1931, ¶ 16.

[^109]: *See* 47 C.F.R. § 101.82. The rule recognizes that although a
    new licensee may not receive a direct benefit by relocating a link
    in one of the bands (*e.g*., it is licensed to operate in one band
    but not both), it may relocate a paired link in that band in order
    to satisfy its obligation to provide comparable facilities to the
    incumbent FS licensee. Thus, the new licensee is entitled to be
    reimbursed by another new licensee for relocating a link that
    otherwise it did not need to relocate to address interference.

[^110]: *See* Service Rules for Advanced Wireless Services in the
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands;
    Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1
    GHz Bands, WT Docket No. 04-356, WT Docket No. 02-353, *Notice of
    Proposed Rulemaking*, 19 FCC Rcd 19263, 19282-84 ¶¶ 46-49 (2004)
    (*AWS-2 Service Rules NPRM*).

[^111]: Because the cost sharing issues raised in this *Fifth Notice*
    are similar to those raised in the *AWS-2 Service Rules NPRM*,
    comments on cost sharing filed in response to the *Fifth Notice* may
    reference comments on cost sharing filed in response to the *AWS-2
    Service Rules NPRM.*

[^112]: We note that the obligations of PCS entrants under the cost
    sharing plan, along with their obligations to relocate FS incumbents
    from the 1850-1990 MHz band, terminated as of April 4, 2005. *See*
    47 C.F.R. § 24.253; Public Notice, "Broadband PCS Entities and Fixed
    Microwave Services Licensees Reminded Of April 4, 2005 Sunset of
    Relocation Cost Compensation and Microwave Cost Sharing Rules," DA
    05-612 (Wireless Tel. Bur. rel. March 8, 2005). Our overview of the
    plan here thus describes how the plan operated prior to the
    termination date.

[^113]: *See Microwave Cost Sharing First R&O and FNPRM*, 11 FCC Rcd at
    8878, Appendix A, ¶ 3; 47 C.F.R. § 24.243.

[^114]: *See* 47 C.F.R. § 24.249(a).

[^115]: *See* 47 C.F.R. § 24.247.

[^116]: *Id.*

[^117]: *See* 47 C.F.R. §§ 24.243, 24.249. The cost sharing formula
    calculates a benefiting entrant's reimbursement obligation based on
    the total "actual" costs of relocation, the number of prior entrants
    that would have interfered with the link, and the number of months
    that have passed since the relocator first obtained reimbursement
    rights. 47 C.F.R. § 24.243. The number of months is factored in to
    depreciate the reimbursement obligation of new entrants over time,
    ensuring that early entrants, who receive a greater benefit from the
    relocation, also pay a larger share of the relocation costs. The
    *pro rata* cost sharing formula does not apply to a new entrant that
    relocates a link entirely outside its spectrum band or geographic
    license area. In that circumstance, the relocator is entitled to 100
    % reimbursement of its costs from the next beneficiary without
    depreciation, subject to the reimbursement cap. *See Microwave Cost
    Sharing First R&O and FNPRM,* 11 FCC Rcd at 8884-54, Appendix A, ¶¶
    16-17.

[^118]: *See* 47 C.F.R § 24.243(b). We note that this cap applies only
    to reimbursement paid to an initial relocator by a subsequent new
    licensee beneficiary; it does not operate as limit to an initial
    relocator's responsibility for the costs of relocation, which is not
    subject to any cap.

[^119]: *See* 47 C.F.R. § 24.243; *Microwave Cost Sharing First R&O and
    FNPRM*, 11 FCC Rcd at 8880, Appendix A, ¶ 6.

[^120]: *See* 47 C.F.R. § 24.243.

[^121]: 47 C.F.R. § 24.251.

[^122]: For the full details of the PCS cost sharing plan, see the
    *Microwave Cost Sharing* proceeding cited at note Error: Reference
    source not found, *supra*.

[^123]: *Microwave Cost Sharing Memorandum Opinion and Order on
    Reconsideration*, 15 FCC Rcd at 14003, ¶ 8.

[^124]: We note that a cost sharing procedure based on the Part 24 plan
    would identify the AWS licensees that have a reimbursement
    obligation using a proximity threshold (*see supra* para. 46) rather
    than the cost sharing rule in Section 101.82 for the 2110-2150 MHz
    and 2160-2200 MHz bands. As discussed below, new MSS licensees would
    continue to follow Section 101.82.

[^125]: PCIA-The Wireless Infrastructure Association (PCIA) Comments to
    *AWS-2 Service Rules NPRM* at 5-6.

[^126]: 47 C.F.R. § 24.241.

[^127]: PCIA Comments to *AWS-2 Service Rules NPRM* at 6-8; CTIA Reply
    to *AWS-2 Service Rules NPRM* at 12-13.

[^128]: *See MSS Second R&O,* 15 FCC Rcd at 12345-47, ¶¶ 95-102 (any
    subsequently entering licensee that cannot demonstrate that it would
    not have interfered with the microwave link is required to
    participate in reimbursing the relocator and depreciation does not
    apply).

[^129]: The Part 24 plan formula that adjusts an AWS licensee's
    apportionment based on, for example, depreciation over time (*see
    supra* note Error: Reference source not found), would not affect the
    amount of reimbursement due to the MSS licensee or to the AWS
    licensee who requests reimbursement under section 101.82. The fifty
    percent attributable to the AWS entrant would be treated as the
    entire actual cost of the link relocation for purposes of applying
    the cost sharing formula.

[^130]: *See supra* paras. 14-15.

[^131]: *See supra* paras. 16-19.

[^132]: *See* 47 C.F.R § 101.75(a). *See also Microwave Cost Sharing*
    *First R&O and FNPRM*, 11 FCC Rcd 8825, Appendix A, ¶ 3.

[^133]: For example, under the Part 24 plan, the Proximity Threshold
    Test determines whether a new licensee triggers a reimbursement
    obligation. *See* 47 C.F.R. § 24.247. In addition, under the Part 24
    plan, reimbursable costs are apportioned among new licensees based
    on the cost sharing formula delineated in Section 24.243 and
    discussed in note Error: Reference source not found, *supra.* *See*
    47 C.F.R. § 24.243.

[^134]: The measure "MHz/pops" represents the amount of spectrum
    multiplied by the population of the covered area, and is expressed
    on a one-megahertz basis. Using MHz/pops would allocate costs among
    licensees in a way that recognizes both the amount of spectrum that
    is affected as well as the number of people within the geographical
    service area at issue.

[^135]: The caps in our current rules are based on the amount that would
    be sufficient to cover the average cost of relocating an FS link.
    For cost sharing in the 2110-2150 MHz and 2160-2200 MHz bands, the
    total costs of which 50% is to be reimbursed will not exceed
    \$250,000 per paired fixed microwave link relocated, nor \$150,000
    if a new or modified tower is required. *See* 47 C.F.R § 101.82. For
    Broadband PCS relocators entitled to *pro rata* reimbursement, the
    actual costs may not exceed \$250,000 per link, with an additional
    \$150,000 permitted if a new or modified tower is required. *See* 47
    C.F.R. § 24.243. Overall, the Commission's policy is that relocators
    are only entitled to reimbursement of "actual" costs, as opposed to
    so-called "premium" costs, defined as costs above those required to
    obtain comparable facilities. These premium costs may be incurred to
    induce an incumbent to agree voluntarily to relocation. *See
    Microwave Cost Sharing First R&O and Second NPRM*, 11 FCC Rcd at
    8884-54, Appendix A, ¶¶ 18, 20.

[^136]: *See, e.g.,* 47 C.F.R. §§ 24.239-24.253 (cost sharing procedures
    for PCS licensees responsible for the relocation of FS incumbents
    from the 1850-1990 MHz band).

[^137]: Filing dates will correspond to information collection
    requirements for the Commission's Universal Licensing System (ULS).

[^138]: *See* 47 U.S.C. § 154(i) (the Commission may make regulations,
    not inconsistent with the Act, as necessary in the execution of its
    functions).

[^139]: The information submitted need not be signed under oath;
    however, willful false statements made therein are punishable by
    fine and imprisonment, and by appropriate administrative sanctions,
    including revocation of a station's license. *See* 47 C.F.R. §
    1.917(c).

[^140]: We find that there is good cause to make the requirement for BRS
    licensees to file information effective upon publication of the
    *Order* in the Federal Register. The Commission has provided BRS
    licensees with ample time to file the required information and the
    ability to use the ULS to submit the information easily. As noted
    above, reliable data on each incumbent system that would be subject
    to relocation is essential well in advance of the planned auction of
    the 2150-2155 MHz band next year. *See* Section 553(d)(3) of the
    Administrative Procedure Act, 5 U.S.C. § 553(d)(3).

[^141]: Public Law 107-198, *see* 44 U.S.C. 3506(c)(4).

[^142]: *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) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^143]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, IB Docket No.
    99-81, *Third Report and Order, Third Notice of Proposed Rulemaking
    and Second Memorandum Opinion and Order*, 18 FCC Rcd 2223 (2003).

[^144]: 5 U.S.C. § 604.

[^145]: 47 U.S.C. § 157.

[^146]: 5 U.S.C. §§ 603(b)(3), 604(a)(3).

[^147]: 5 U.S.C. § 601(6).

[^148]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in 15 U.S.C. § 632). Pursuant to 5 U.S.C §
    601(3), the statutory definition of a small business applies "unless
    an agency after consultation with the Office of Advocacy of the
    Small Business Administration and after opportunity for public
    comment, established one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition in the Federal Register."

[^149]: 15 U.S.C. § 632.

[^150]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    *Report and Order*, 10 FCC Rcd 9589, 9593, ¶ 7 (1995) ("*MDS Auction
    R&O*"*)*. The MDS and ITFS was renamed the Broadband Radio Service
    (BRS) and Educational Broadband Service (EBS), respectively. *See*
    Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules
    to Facilitate the Provision of Fixed and Mobile Broadband Access,
    Educational and Other Advanced Services in the 2150-2162 MHz Band,
    WT Docket No. 03-66, *Report and Order and Further Notice of
    Proposed Rulemaking*, 19 FCC Rcd 14165 (2004).

[^151]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, FCC, from
    Gary Jackson, Assistant Administrator for Size Standards, Small
    Business Administration (dated Mar. 20, 2003) (noting approval of
    \$40 million size standard for MDS auction).

[^152]: Basic Trading Areas (BTAs) were designed by Rand McNally and are
    the geographic areas by which MDS was auctioned and authorized.
    *See* *MDS Auction R&O*, 10 FCC Rcd at 9608, ¶ 34.

[^153]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$12.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517910.

[^154]: 13 C.F.R. § 121.201, NAICS code 517510.

[^155]: *Id.*

[^156]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4 (issued October 2000).

[^157]: *Id.*

[^158]: 47 C.F.R. Part 101 *et seq*. (formerly, part 21 of the
    Commission's Rules) for common carrier fixed microwave services
    (except MDS).

[^159]: Persons eligible under Parts 80 and 90 of the Commission's rules
    can use Private-Operational Fixed Microwave services. *See* 47
    C.F.R. Parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee's
    commercial, industrial, or safety operations.

[^160]: Auxiliary Microwave Service is governed by Part 74 of Title 47
    of the Commission's Rules. *See* 47 C.F.R. Part 74 *et seq*.
    Available to licensees of broadcast stations and to broadcast and
    cable network entities, broadcast auxiliary microwave stations are
    used for relaying broadcast television signals from the studio to
    the transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^161]: 13 C.F.R. § 121.201, NAICS code 517212.

[^162]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Employment Size of Firms Subject to Federal Income
    Tax: 1997," Table 5 (issued Oct. 2000).

[^163]: *Id*. The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is "Firms with 1,000
    employees or more."

[^164]: 5 U.S.C. § 603(c).

[^165]: *See* 5 U.S.C*.* § 801(a)(1)(A).

[^166]: *See* 5 U.S.C. § 604(b).

[^167]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^168]: *See* 5 U.S.C. § 603(a).

[^169]: *Id.*

[^170]: The Multipoint Distribution Service (MDS) was renamed the
    Broadband Radio Service (BRS). *See* Amendment of Parts 1, 21, 73,
    74 and 101 of the Commission's Rules to Facilitate the Provision of
    Fixed and Mobile Broadband Access, Educational and Other Advanced
    Services in the 2150-2162 MHz Band, WT Docket No. 03-66, *Report and
    Order and Further Notice of Proposed Rulemaking*, 19 FCC Rcd 14165
    (2004).

[^171]: *See* Redevelopment of Spectrum to Encourage Innovation in the
    Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *First Report and Order and Third Notice of Proposed Rule Making*, 7
    FCC Rcd 6886 (1992); *Second Report and Order*, 8 FCC Rcd 6495
    (1993); *Third Report and Order and Memorandum Opinion and Order*, 8
    FCC Rcd 6589 (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 1943
    (1994); *Second Memorandum Opinion and Order*, 9 FCC Rcd 7797
    (1994); *aff'd Association of Public Safety Communications
    Officials-International, Inc. v. FCC*, 76 F.3d 395 (D.C. Cir. 1996)
    (collectively, "*Emerging Technologies* proceeding"). *See also
    Teledesic, LLC v. FCC*, 275 F.3d 75 (D.C. Cir. 2001) (affirming
    modified relocation scheme for new satellite entrants to the 17.7 --
    19.7 GHz band). *See also* 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); *Second Report and
    Order*, 12 FCC Rcd 2705 (1997) (collectively, *Microwave Cost
    Sharing* proceeding).

[^172]: 5 U.S.C. § 603(b)(3).

[^173]: 5 U.S.C. § 601(6).

[^174]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. §  632). Pursuant to the
    RFA, the statutory definition of a small business applies \"unless
    an agency, after consultation with the Office of Advocacy of the
    Small Business Administration and after opportunity for public
    comment, establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^175]: Small Business Act, 15 U.S.C. § 632 (1996).

[^176]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    *Report and Order*, 10 FCC Rcd 9589, 9593, ¶ 7 (1995) ("*MDS Auction
    R&O*"*)*.

[^177]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, FCC, from
    Gary Jackson, Assistant Administrator for Size Standards, Small
    Business Administration (dated Mar. 20, 2003) (noting approval of
    \$40 million size standard for MDS auction).

[^178]: Basic Trading Areas (BTAs) were designed by Rand McNally and are
    the geographic areas by which MDS was auctioned and authorized.
    *See* *MDS Auction R&O*, 10 FCC Rcd at 9608, ¶ 34.

[^179]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$12.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517910.

[^180]: 13 C.F.R. § 121.201, NAICS code 517510.

[^181]: *Id.*

[^182]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4 (issued October 2000).

[^183]: *Id.*

[^184]: 47 C.F.R. Part 101 *et seq*. (formerly, part 21 of the
    Commission's Rules) for common carrier fixed microwave services
    (except MDS).

[^185]: Persons eligible under Parts 80 and 90 of the Commission's rules
    can use Private-Operational Fixed Microwave services. *See* 47
    C.F.R. parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee's
    commercial, industrial, or safety operations.

[^186]: Auxiliary Microwave Service is governed by Part 74 of Title 47
    of the Commission's Rules. *See* 47 C.F.R. Part 74 *et seq*.
    Available to licensees of broadcast stations and to broadcast and
    cable network entities, broadcast auxiliary microwave stations are
    used for relaying broadcast television signals from the studio to
    the transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^187]: 13 C.F.R. § 121.201, NAICS code 517212.

[^188]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Employment Size of Firms Subject to Federal Income
    Tax: 1997," Table 5 (issued Oct. 2000).

[^189]: *Id*. The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is "Firms with 1,000
    employees or more."

[^190]: *See* 5 U.S.C. § 603(c).