**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | GN Docket No. 01-74          |
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| Reallocation and Service Rules   | ) |                              |
| for the 698-746 MHz Spectrum     | * |                              |
| Band (Television Channels 52-59) | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** June 14, 2002 **Released:** June 14, 2002

By the Commission: Commissioner Martin approving in part, concurring in
part, and issuing a statement.

**TABLE OF CONTENTS**

Heading Paragraph \#

I. introduction and executive summary 1

II\. background 4

III\. discussion 8

A. Service Rules 8

1\. Band Plan and Geographic Scope of Licenses 8

2\. Power and Out-of-Band Emission Limits 19

3\. Applicability of Statutory Exemptions from Auction 32

B. DTV Transition Issues 40

1\. Temporary Relocation of Analog Stations to Channels 52-58 to
Facilitate Band Clearing 40

2\. Pending NTSC Petitions and Applications 44

3\. Mutually Exclusive Applications 52

IV\. PROCEDURAL MATTERS AND ORDERING CLAUSES 55

Appendix A: Petitions for Reconsideration

# introduction and executive summary

1.  In the *Lower 700 MHz Report and Order*,[^1] we adopted allocation
    and service rules for the radio spectrum at 698-746 MHz ("Lower 700
    MHz Band") in order to reclaim and license this band to new services
    in accordance with statutory mandate.[^2] This action was taken as
    part of the transition of television ("TV") broadcasting from analog
    to digital transmission systems. Specifically, we reallocated the 48
    megahertz of spectrum in the Lower 700 MHz Band to fixed and mobile
    services and retained the existing broadcast allocation for both new
    broadcast services and incumbent broadcast services during their
    transition to digital television ("DTV"). To complement this
    flexible allocation to new services on the Lower 700 MHz Band, we
    generally applied the Part 27 service rule framework to promote the
    efficient use of spectrum and permit service providers to select the
    technologies and services that the market may demand.

2.  This Memorandum Opinion and Order addresses petitions for
    reconsideration filed by eight parties that seek changes and/or
    clarifications to this Commission's decisions regarding issues
    relating to the transition to DTV service and the rules for
    auctioning and licensing new services on the Lower 700 MHz Band.[^3]
    We deny these petitions and affirm our decisions in the *Lower 700
    MHz Report and Order*. Specifically, we:

-   Affirm the band plan and geographic license areas adopted in the
    *Lower 700 MHz Report and Order*. In particular, we maintain the
    assignment of Block C (currently occupied by TV Channels 54 and 59)
    over 734 Metropolitan Statistical Areas ("MSAs") and Rural Service
    Areas ("RSAs").

-   Affirm the decision in the *Lower 700 MHz Report and Order* to adopt
    a uniform maximum power limit of 50 kW effective radiated power
    ("ERP") for services operating on the Lower 700 MHz Band. We also
    leave unaltered the out-of-band emission ("OOBE") limit and other
    measures that were adopted in the *Lower 700 MHz Report and Order*
    to address and mitigate any interference that may result from 50 kW
    operations to systems on adjacent channels.

-   Deny the petition for reconsideration of the Office of the Chief
    Technology Officer, Government of the District of Columbia, which
    argues that public safety users should be permitted to obtain Lower
    700 MHz band licenses under the "public safety radio services"
    auction exemption found at Section 309(j)(2)(A) of the
    Communications Act, as amended ("Communications Act" or "Act").[^4]

-   Affirm the decision in the *Lower 700 MHz Report and Order* to
    dismiss all pending petitions for NTSC channel allotments in the
    Lower 700 MHz Band.

-   Clarify that broadcast stations clearing from Channels 59-69 in
    connection with voluntary band clearing arrangements may seek a
    modified NTSC or DTV channel allotment on Channels 52-58.

-   Affirm the decision in the *Lower 700 MHz Report and Order* not to
    authorize additional new NTSC construction permits in the Lower 700
    MHz Band and to open a 45-day window, during which such pending
    applications could be modified, either (a) to provide analog or
    digital television service in the core channels (2-51), or (b) to
    provide digital television service in Channels 52-58.

-   Affirm the decision of the Mass Media Bureau (now the Media Bureau)
    adopted pursuant to the *Lower 700 MHz Report and Order* providing
    that, where multiple applicants have filed for a single NTSC
    allotment in the Lower 700 MHz Band, they must file a petition for
    rulemaking proposing a single replacement channel to which all
    applicants agree to modify their applications. Accordingly, where
    mutually exclusive applicants cannot agree on submission of a
    petition for the same replacement channel, then any petition filed
    by a member of such group will be dismissed.

3.  By taking these steps, we seek to promote the transition to DTV,
    meet our statutory mandate to reclaim and license this spectrum by
    competitive bidding, and enable the flexible use of the Lower 700
    MHz Band for a wide range of new services.

# background

4.  Section 309(j)(14) of the Communications Act requires the Commission
    to assign spectrum recovered from broadcast television using
    competitive bidding and envisions that the Commission will conduct
    an auction of this spectrum prior to September 30, 2002.[^5] In
    meeting this requirement, the Commission must adopt rules that
    promote a number of objectives, including new technologies and
    services, economic competition and growth, commercial uses,
    efficient and intensive use of spectrum, and time for interested
    parties to develop their business plans.[^6] Further, the
    regulations adopted by the Commission must prescribe area
    designations and bandwidth assignments that promote equitable
    distribution of licenses and services among geographic areas,
    economic opportunity for a wide variety of applicants, including
    small businesses, rural telephone companies, and businesses owned by
    members of minority groups and women, and investment in, and rapid
    deployment of, new technologies and services.[^7]

5.  The reclamation of the Lower 700 MHz Band and the radio spectrum at
    746-806 MHz ("Upper 700 MHz Band") is occurring as a result of the
    conversion of television broadcasting from analog to digital
    transmission systems together with the planned migration of
    broadcasters into core Channels 2-51. This reclamation of TV
    spectrum has been addressed in two parts, primarily as a result of
    different statutory requirements for the upper and lower portions of
    700 MHz spectrum.[^8] The Commission previously reallocated the
    Upper 700 MHz Band and adopted service and licensing rules for that
    spectrum.[^9] This Commission's *Lower 700 MHz Report and Order*
    provides for the reallocation and adoption of service and licensing
    rules for the Lower 700 MHz Band. The auction of licenses in the
    Lower 700 MHz Band (Auction No. 44) is presently scheduled for June
    19, 2002.[^10]

6.  In the *Lower 700 MHz Report and Order*, we reallocated the spectrum
    in the Lower 700 MHz Band to flexible use by fixed, mobile and new
    broadcast services, as well as incumbent broadcast services during
    their transition to DTV.[^11] We established technical criteria
    designed to protect incumbent television operations in the band
    during the DTV transition period, and adopted a mechanism by which
    pending broadcast applications may be amended to provide analog or
    digital service in the core television spectrum or to provide
    digital service on TV Channels 52-58.

7.  We also adopted service rules required for use of the Lower 700 MHz
    Band by fixed, mobile, and broadcast services. We divided the Lower
    700 MHz Band into five blocks across different service areas for
    geographic area licensing: two 6-megahertz blocks of contiguous
    unpaired spectrum, as well as two 12-megahertz blocks of paired
    spectrum, were to be assigned over six Economic Area Groupings
    ("EAGs"); a remaining 12 megahertz block of paired spectrum (710-716
    MHz and 740-746 MHz) was designated for licensing over 734 MSAs and
    RSAs.[^12] We decided that all operations in the Lower 700 MHz Band
    would be generally regulated under the framework of Part 27's
    technical, licensing, and operating rules.[^13] However, in order to
    permit both wireless services and certain new broadcast operations
    in the Lower 700 MHz Band, we adopted maximum power limits for the
    Lower 700 MHz Band that would permit 50 kW ERP transmissions under
    certain conditions.[^14] We declined to restrict any of the spectrum
    in the Lower 700 MHz Band exclusively to public safety or private
    radio services, but noted that our flexible use allocation under
    Part 27 permits fixed and mobile wireless uses for private, internal
    radio communications.[^15]

#  discussion 

## Service Rules 

### Band Plan and Geographic Scope of Licenses

8.  *[Background]{.underline}*. In the *Lower 700 MHz Report and Order*,
    we defined the band plan and geographic area licensing approach for
    the Lower 700 MHz Band. Specifically, we adopted a band plan that
    divides the 48 megahertz of spectrum in the 698-746 MHz band into
    three 12-megahertz blocks of paired spectrum and two 6-megahertz
    blocks of unpaired spectrum.[^16] The three blocks of paired
    spectrum include Block A (Channels 52 and 57), Block B (Channels 53
    and 58), and Block C (Channels 54 and 59); the two blocks of
    unpaired spectrum include Block D (Channel 55) and Block E (Channel
    56).[^17] Under this band plan, Blocks A, B, D and E will be
    licensed over six EAGs and Block C will be licensed over 734
    MSAs/RSAs.[^18]

9.  We determined that a combination of large and small geographic
    service areas best accomplishes statutory objectives, including the
    obligation to promote "economic opportunity and competition" and to
    disseminate licenses "among a wide variety of applicants, including
    small businesses, rural telephone companies, and businesses owned by
    members of minority groups and women."[^19] We found that the
    majority of commenters favored the adoption of service areas much
    smaller than EAGs, and that the use of the smaller MSAs/RSAs may
    correspond to the needs of many customers, including customers of
    small regional and rural providers.[^20] To promote opportunities
    for these interested parties to participate in the provision of
    services in the Lower 700 MHz Band, we determined that it would be
    in the public interest to assign a 12 megahertz block of paired
    spectrum from 710-716 MHz and 740-746 MHz (*i.e.*, Block C) over
    MSAs/RSAs.[^21]

10. In petitions for reconsideration/clarification, two parties claim
    that the Commission should reconsider this plan for assignment of
    spectrum within the Lower 700 MHz Band, in particular the use of
    MSAs/RSAs to license Block C.[^22] Spectrum Exchange/Allen and SCA
    argue that the use of MSAs/RSAs for Block C may create a "free-rider
    problem" that would reduce the value of commercial licenses in the
    Upper 700 MHz Band.[^23] Spectrum Exchange/Allen contends that the
    choice of MSA/RSA license areas for a spectrum block that includes
    Channel 59 is inconsistent with the Commission's previously adopted
    provisions to facilitate band clearing in Channels 59-69, and
    further notes that similar band-clearing policies were not applied
    to Channels 52-58.[^24] SCA claims that "the small area licensing
    scheme for Channel 59 threatens to make clearing that channel all
    but impossible by increasing exponentially the number and the
    complexity of agreements that will be necessary to clear Channel
    59."[^25] Therefore, they urge the Commission to reassign the
    spectrum within the Lower 700 MHz Band in a manner such that MSA/RSA
    licenses are not assigned to the block of spectrum currently
    occupied by TV Channel 59.

11. Two commenting parties oppose these positions. Council Tree alleges
    that SCA's position is not in the public interest and opposes SCA's
    efforts to alter the band plan adopted in the *Lower 700 MHz Report
    and Order*.[^26] US Cellular opposes both petitions and states that
    such proposals would delay commencement of service on MSA/RSA
    licenses.[^27]

12. *[Discussion]{.underline}*. We will not alter the band plan or
    geographic service areas that were adopted in the *Lower 700 MHz
    Report and Order*, including the assignment of MSA/RSA license areas
    to Block C currently occupied by TV Channels 54 and 59. Based on our
    consideration of the arguments raised on reconsideration and the
    factors previously considered in the *Lower 700 MHz Report and
    Order,* we reaffirm that the band plan adopted in that order
    represents the best approach for achieving the Commission's policy
    objectives for the Lower 700 MHz Band. Thus, we deny these petitions
    for reconsideration/clarification that raise issues regarding the
    band plan and geographic scope of Lower 700 MHz Band licenses.

13. In determining the optimum initial scope of licenses for the Lower
    700 MHz Band, this Commission maintained its commitment to several
    spectrum management policies, including the statutory mandate to
    promote opportunities for a wide variety of applicants, including
    small and rural wireless providers, to obtain spectrum and
    participate in the provision of spectrum-based services. A primary
    result of this process was a band plan that assigned the majority of
    spectrum over large service areas defined by EAGs. This approach is
    consistent with the Commission's decision in the Upper 700 MHz Band
    proceeding to assign the majority of commercial spectrum in the
    Upper 700 MHz Band over EAGs.[^28] As the Commission noted in the
    Upper 700 MHz Band proceeding, large geographic areas such as EAGs
    offer several advantages.[^29] Significantly, large areas provide
    optimum opportunity to aggregate spectrum, which may be particularly
    useful for services that require nationwide footprints. Large
    geographic areas also make it easier for providers to take advantage
    of economies of scale, allowing existing technologies to grow and
    new technologies to develop. We note that large geographic areas
    also reduce the potential transaction costs to both auction
    participants seeking adjoining smaller geographic areas and carriers
    seeking to consolidate such areas post-auction.[^30] Finally, these
    large areas may help address problems due to incumbent TV
    stations.[^31] Because of these advantages associated with the
    assignment of larger licensing areas, the Commission designated the
    bulk of Lower 700 MHz Band spectrum as EAGs.

14. Nevertheless, based on the record, the statutory mandate of Section
    309(j) of the Communications Act, and a desire to promote
    opportunities for a wide variety of applicants in the provision of
    spectrum-based services in the Lower 700 MHz Band, we also sought to
    define a band plan that afforded meaningful opportunities to the
    interested parties seeking licenses with smaller initial geographic
    scope. Because we decided to assign only one 12 megahertz block of
    paired spectrum over MSAs/RSAs,[^32] it is of consequential
    significance to such parties whether that block is assigned to
    spectrum with high incumbency, potential for interference, or other
    obstructions to use. Given the lack of any significant difference in
    the relative incumbency levels on Blocks A, B, and C, this
    Commission focused on factors such as band plan architecture and
    adjacent channel interference in selecting the various license block
    assignments.[^33]

15. Given these considerations in the *Lower 700 MHz Report and Order*,
    we find our assignment of MSAs/RSAs to Block C to be in the public
    interest. Of the three paired 12-megahertz blocks, Block B would
    have been the most suitable to meet the spectrum needs of the many
    parties interested in acquiring additional spectrum to complement
    existing networks of a local or smaller scale.[^34] However, the use
    of MSAs/RSAs for Block B would have conflicted with another
    Commission goal that of making it possible to aggregate 24 megahertz
    of paired spectrum within the same EAG. As noted above[^35] and in
    the *Lower 700 MHz Report and Order*,[^36] the ability to aggregate
    spectrum may offer important benefits. In order to provide
    additional opportunities for firms seeking to aggregate paired
    spectrum within the same EAG, this Commission had to designate
    either Blocks A and B or Blocks B and C as the EAG blocks. Using
    Block B for MSA/RSA licenses would result in the two EAG blocks
    being split, frustrating this objective. Thus, the alternative
    locations for MSA/RSA licenses were Block A or Block C. Given these
    alternatives, we find Block C to be the best choice to meet the
    Commission's specific objective for the Lower 700 MHz Band to
    provide opportunities for provision of services by rural telephone
    companies, small businesses, and/or other entities seeking spectrum
    licenses of smaller geographic scope.[^37]

16. We do not view the alternative, Block A, to be sufficient to meet
    the Commission's objectives. Compared to Blocks B through E, Block A
    may pose the most burdens for new licensees seeking to offer
    services while protecting DTV operations on Channel 51.[^38] Unlike
    these other blocks, Block A licensees will have to meet additional
    Part 27 adjacent channel interference obligations involving these
    DTV operations on Channel 51, which are in the TV core and are
    therefore of a permanent nature. These permanent DTV operations on
    Channel 51 underscore the advantages of licensing Channel 52 across
    EAGs, as these large geographic areas match and can be aggregated
    with those used for Block B. Such aggregation may permit licensees
    greater flexibility to engineer their systems around Channel 51 DTV
    operations by the use of measures such as internal guard bands.
    Accordingly, compared to Block C, we find that adjacent channel
    protection requirements may limit the usability of Block A as a
    stand-alone block.

17. We reject Spectrum Exchange/Allen's proposal to rearrange the Lower
    700 MHz Band licensing arrangement and/or band plan.[^39] We find
    that their alternative proposals will not preserve the equitable
    distribution of licenses. In particular, we do not accept the
    suggestion that an unpaired block should be assigned to the current
    Channel 52 spectrum instead of to Channels 55 and 56. We do not find
    adequate support to change the existing separation between segments
    of the 12 megahertz paired blocks that were adopted in the *Lower
    700 MHz Report and Order*. The separation between the blocks that we
    adopted in the *Lower 700 MHz Report and Order* is consistent with
    the band plan adopted in the Upper 700 MHz Band, and is appropriate
    for many two-way technologies to operate. Locating the 6-megahertz
    unpaired licenses at the center of the band plan maintains this
    separation.

18. We find that the spectrum policy objectives for the Lower 700 MHz
    Band are a balancing of a number of factors. Petitioners' specific
    arguments regarding the potential for Channel 59 "free-riders" to
    hinder band-clearing efforts on Channels 59-69 are outweighed by
    other considerations in the Lower 700 MHz band plan. While the
    Commission identified the early clearing of incumbents as an Upper
    700 MHz Band consideration that would also be important in the Lower
    700 MHz Band,[^40] it does not follow that removing potential
    obstacles to band clearing on Channel 59 should be the overriding
    objective of our service rules for the Lower 700 MHz Band. Rather,
    we find that the aforementioned advantages of this band plan for a
    wide variety of applicants and spectrum-based services outweigh the
    potential that this band plan may present some obstacles to clearing
    Channel 59. We note that under the Commission's voluntary
    band-clearing policy, there has always been the potential for
    certain new licensees to benefit from the early clearing of a
    Channel 59-69 incumbent without being a party to the particular
    band-clearing agreement. This potential exists for new licensees on
    Channels 58 and 59, as well as commercial and guard band licensees
    in the Upper 700 MHz Band. In particular, there originally was no
    expectation that Lower 700 MHz licensees would contribute to Upper
    700 MHz band-clearing efforts. At the time the Upper 700 MHz
    band-clearing rules were adopted, it was assumed that Channels 52-59
    would be auctioned later than Channels 60-69. Thus, placing MSA/RSA
    licensees on Block C does not make band-clearing more costly or
    difficult for petitioners than originally conceived.

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

19. *[Background]{.underline}*. In the *Lower 700 MHz Report and Order*,
    we adopted a maximum power limit of 50 kW ERP for all services
    operating fixed and base stations in the Lower 700 MHz Band. It
    found that a maximum power limit of 50 kW ERP, subject to specific
    requirements regarding non-interference, is practicable to maximize
    both flexibility and freedom from harmful interference for the
    widest number of potential services on this spectrum.[^41] Following
    the approach adopted for the commercial portions of the Upper 700
    MHz Band, we adopted a maximum power limit of 30 watts ERP for
    mobile and control stations, and 3 watts ERP for portable
    (hand-held) devices.[^42]

20. In order to limit the potential for harmful interference, we
    required licensees operating base or fixed stations at power levels
    greater than 1kW ERP to design their systems such that transmissions
    from their base station produced power flux density (PFD) levels
    that would be no greater than the PFD levels that would ordinarily
    occur from stations operating at power levels of 1kW ERP or
    less.[^43] Specifically, we required such licensees to limit the
    calculated PFD of the signal from their base station to 3000
    microwatts per square meter at any location at ground level within 1
    km of their base station transmitter. We also required licensees
    intending to operate base or fixed stations in excess of 1kW ERP to
    file notifications with the Commission and to provide notifications
    to all Part 27 licensees authorized on a adjacent blocks within
    their area of operation. [^44] We found that such notice to adjacent
    channel licensees will provide these licensees with opportunities to
    mitigate potential interference to their base receive stations
    through attenuation in vertical antenna patterns and antenna down
    tilting, use of improved filtering, avoiding the use of spectrum at
    the edge of its authorized block, or through other measures. [^45]
    In order to address the potential interference to adjacent channel
    licensees, we also adopted rules governing out-of-band emission
    (OOBE).[^46] Specifically, we determined that licensees operating in
    the Lower 700 MHz Band should be required to attenuate any emission
    on frequencies outside the licensee's authorized spectrum below the
    transmitter power (P) by at least 43 + 10 log (P) dB.[^47]

21. In its petition for reconsideration, Access Spectrum requests that
    the Commission reconsider permitting licensees on TV Channels 57-59
    to operate base stations at a power level of up to 50 kW ERP.[^48]
    Access Spectrum argues that the interference mitigation measures
    adopted in the *Lower 700 MHz Report and Order* do not adequately
    prevent such high power base stations from causing interference to
    operations in the 746-747 MHz guard band.[^49] As a result, Access
    Spectrum requests that the Commission reduce the power limit to 1 kW
    for base and fixed transmit stations operating in the upper segments
    of Blocks A, B, and C (TV Channels 57-59) of the Lower 700 MHz Band
    plan.[^50] Motorola, Pegasus, ITA and US Cellular support Access
    Spectrum's petition and proposed power limit modifications,[^51]
    while Council Tree opposes Access Spectrum's petition and supports
    the flexibility of the existing power and OOBE limits.[^52]

22. *[Discussion]{.underline}*. We decline to adopt Access Spectrum's
    proposal to reduce the power limits in the upper portions of the
    Lower 700 MHz Band. In the *Lower 700 MHz Report and Order*, we
    devoted considerable discussion to the possibility of harmful
    interference from 50 kW ERP operations to systems on adjacent
    channels operating at lower power levels."[^53] Contrary to the
    statements of Access Spectrum and other commenting parties,[^54] we
    evaluated fully the potential impact of 50 kW transmissions on
    operations in the Upper 700 MHz Band, including users of spectrum
    licensed to guard band managers on 746-747 MHz.[^55]

23. To address the potential for adjacent channel interference resulting
    from operations on the Lower 700 MHz Band, the Commission adopted
    general rules that protect all adjacent channel licensees, whether
    they are operating in the Lower 700 MHz Band or in the lower portion
    of the Upper 700 MHz Band. By its very compliance with the PFD limit
    in Section 27.55(b), a Block A, B, and/or C Lower 700 MHz licensee
    operating at 50 kW protects mobile receivers operating on 746-747
    MHz from desensitization or front-end overload because they will
    experience PFD levels that are no greater than the PFD levels that
    could occur from stations operating at 1 kW ERP or less.

24. Moreover licensees operating at power levels that exceed 1 kW are
    required to notify all licensees authorized on adjacent blocks that
    are located within 75 km.[^56] This requirement provides adjacent
    channel licensees, including licensees on 746-747 MHz, the
    opportunity to adopt measures to mitigate interference.[^57]
    Finally, by meeting Section 27.53(f)'s limits on the power of "any
    emission outside a licensee's frequency band(s),"[^58] which would
    include any OOBE on 746-747 MHz, a Block A, B, and/or C Lower 700
    MHz licensee operating at up to 50 kW will protect mobile and base
    receive stations on 746-747 MHz from harmful interference that could
    arise due to out-of-band emissions.

25. Access Spectrum claims that transmitters operating at 50 kW will
    produce high levels of interference to mobile and portable receivers
    in the 746-747 MHz guard band and that the PFD limit established in
    the *Lower 700 MHz Report and Order* is inadequate to protect
    receivers in the guard band from being "overwhelmed."[^59] However,
    on the basis of Access Spectrum's own calculations referenced in the
    *Lower 700 MHz Report and Order*,[^60] we determined that the
    interference environment of mobile and portable receivers in
    adjacent bands, such as the 746-747 MHz guard band, would be not
    substantially changed with 50 kW ERP stations operating under the
    conditions of the PFD limit adopted in the *Lower 700 MHz Report and
    Order*. To protect adjacent channel mobile receivers from overload
    conditions,[^61] we concluded that it is only necessary that 50 kW
    transmitters produce radio fields on the ground that are no greater
    than what would occur from commercial land mobile systems operating
    at power levels of 1 kW or less.[^62] Thus, we adopted Section
    27.55(b), which established a PFD limit for Lower 700 MHz Band
    stations operating up to 50 kW. Section 27.55(b) ensures that the
    interference environment for mobile and portable receivers operating
    on spectrum adjacent to 50 kW ERP transmitters is substantially the
    same as what it would be for mobile and portable receivers operating
    on spectrum adjacent to 1 kW ERP transmitters.[^63]

26. In support of the Access Spectrum petition, Motorola filed an
    engineering analysis purporting to demonstrate that the PFD limit
    does not adequately protect adjacent channel licensees in the guard
    band. We disagree with Motorola's finding that there is a
    "discontinuity" in the provisions of our rules that affects systems
    operating below 1 kW differently from those operating at higher
    power levels. Motorola suggests that because of our rule, which
    places a particular PFD limit on above-1 KW ERP systems in the Lower
    700 MHz Band, licensees will operate with antennas and antenna
    configurations that might put the full 3000 microwatts per square
    meter PFD on the ground in the vicinity of the transmitter and,
    therefore, cause excessively high out-of-band emissions into 746-747
    MHz guard band handsets. Motorola's claimed large "discontinuity" in
    the level of out-of-band emissions produced when licensees operate
    at power levels above 1 kW suggests a sudden, large increase in
    emissions automatically occurring when a licensee operating at 1 kW
    ERP increases its power level to just above 1 kW ERP. This
    assertion, however, is groundless. Our 3000-microwatt per square
    meter rule merely places a limit on the energy a licensee operating
    above 1 kW can put on the ground 1 km away. In the course of
    operating at such power levels, and designing their systems to not
    exceed the 3000 mw/sq m limit, if a licensee employs a particular
    antenna and/or an antenna configuration in an effort to actually
    *reach* this rather generous PFD limit, there would, as Motorola
    contends, be greater out-of-band emissions into guard band receivers
    than we may have anticipated when we adopted our 43 + 10log P OOBE
    standard. However, it is far more likely that licensees designing
    commercial systems operating at power levels just above *and* just
    below 1 KW ERP will employ virtually the same antennas and antenna
    configurations, which, according to Motorola, would produce a much
    more modest 140 mw/sq m PFD level. Thus, a licensee operating at a
    power level above 1 kW ERP will produce no greater emissions into
    guard band receivers than a licensee operating below 1 kW ERP \--
    *i.e*., there would be no sudden increase or "discontinuity" in
    emissions occurring from systems that choose to operate at power
    levels above 1 kW ERP.

27. It should also be noted that commercial licensees operating in the
    Upper 700 MHz Band, *e.g*., the 747-752 megahertz license
    immediately above the guard band, could design systems that produce
    that same PFD level and thus create the same out-of-band emissions
    into guard band receivers that concern Motorola with regard to Lower
    700 MHz Band systems. Thus, our rule, which is designed simply to
    place a limit on energy produced by high-powered systems in the
    Lower 700 MHz band, will not cause any greater out-of-band
    interference to occur to guard band receivers from commercial
    systems operating in Lower 700 MHz Band than could occur from
    commercial systems operating in the Upper 700 MHz Band.

28. Access Spectrum also claims that the use of antenna down tilting and
    improved filtering is inadequate to mitigate interference for users
    of the guard band utilizing portable handsets.[^64] From this
    observation, Access Spectrum concludes that we failed to address the
    circumstances that will be faced by guard band users operating
    mobile or portable receivers and that the Commission's conclusions
    regarding interference mitigation are therefore "baseless."[^65] As
    Access Spectrum recognizes,[^66] however, antenna down tilting and
    filtering are measures that the Commission suggested may be applied
    to base station receiving receivers, not mobiles or portables.[^67]
    Because of the potential interference scenarios involving
    base-to-base interference (*i.e.*, scenarios that the adoption of a
    PFD limit on the ground would not address), the Commission provided
    a table demonstrating how a licensee could mitigate potential
    base-to-base interference from 50 kW transmissions by use of a
    selective antenna pattern or down tilting of its base receive
    antenna.[^68] Protection of mobiles and portables is already ensured
    by the PFD limitation of 3000 microwatts per square meter on the
    ground.[^69] Thus, we squarely addressed and mitigated the potential
    impact to adjacent channel mobiles on 746-747 MHz by the adoption of
    Section 27.55(c).

29. We disagree with Access Spectrum's supposition that the notification
    requirement placed on licensees that intend to operate base or fixed
    stations in excess of 1 kW ERP provides no practical benefit for
    users of the 746-747 guard band.[^70] Access Spectrum's position
    relies on a misunderstanding that the notification requirement is
    intended to solve a base-to-mobile interference potential. As stated
    above, the potential interference to mobile and portable receivers
    on the 746-747 MHz guard band is addressed by the PFD limitation of
    3000 mw/sq m on the ground. As explained in the *Lower 700 MHz Band
    Report and Order*, the notification requirement is a means to
    implement the mitigation measures cited by the Commission to address
    the potential for base-to-base interference from 50 kW ERP
    operations.[^71]

30. Access Spectrum finally contends that the OOBE limit established in
    the *Lower 700 MHz Report and Order* should be "significantly
    greater" in order to mitigate adjacent channel interference caused
    by high power base station operations on license blocks occupying TV
    channels 57-59.[^72] We disagree. The OOBE limit will result in the
    identical out-of-band emission level for 1 kW transmitters as for 50
    kW transmitters (*i.e*., producing the absolute power of --43 dBw,
    or 50 microwatts, out of the transmitter). The protection afforded
    adjacent channel receivers is independent of the maximum power
    allowed for Lower 700 MHz Band operations; thus the requirement
    proposed by Access Spectrum is unnecessary.

31. In sum, we do not agree with Access Spectrum that the technical
    rules jeopardize users of the 746-747 MHz guard band. After full
    consideration of the arguments made by Access Spectrum, and the
    commenters supporting its petition, we will not alter the OOBE limit
    or maximum power limit of 50 kW ERP for any operations in the Lower
    700 MHz Band. We also leave intact the related mitigation
    requirements that were adopted in the *Lower 700 MHz Report and
    Order* as reasonable measures to maintain the flexibility provided
    by the higher power limit, while mitigating the risk that any
    interference from stations operating in excess of 1 kW ERP will
    occur.

### 3. Applicability of Statutory Exemptions from Auction {#applicability-of-statutory-exemptions-from-auction .unnumbered}

32. *[Background]{.underline}*. In the *Lower 700 MHz Report and Order*,
    the Commission applied Section 27.2 of its rules to define the
    permissible communications services for the Lower 700 MHz Band and
    allow a multitude of fixed, mobile, and broadcast uses that the
    market may demand.[^73] We determined that this flexible use
    approach would allow the provision of services to the public that
    could include mobile and other digital new broadcast operations,
    fixed and mobile wireless commercial services (including FDD- and
    TDD-based services), as well as fixed and mobile wireless uses for
    private, internal radio needs.[^74] We also observed that the record
    in this proceeding indicates demand for a number of different types
    of uses, including the provision of communications services to
    underserved rural areas and broadband services, among others.[^75]
    Thus, we allocated the Lower 700 MHz band to permit significant
    flexibility of use, consistent with Section 303(y) of the Act.[^76]

33. Following the approach taken for the commercial portions of the
    Upper 700 MHz Band, we permitted private radio uses on the Lower 700
    MHz Band.[^77] Although we declined to designate all or a portion of
    the band exclusively for the provision of private radio or public
    safety radio services, we noted that Part 27 Lower 700 MHz Band
    licensees would be permitted to use their spectrum for private fixed
    and mobile radio services to meet internal communications needs, and
    that licensees would be able to select their own regulatory status
    and designate that status on their FCC Forms 601.[^78] We amended
    Section 27.10(a) to clarify that licensees on the non-public safety
    portions of the 700 MHz Band could designate the "private internal
    communications" status on the FCC Form 601.[^79]

34. In its petition for reconsideration or clarification, OCTO asks that
    we confirm that the Part 27 service rules that have been amended in
    the *Lower 700 MHz Report and Order* permit public safety eligibles
    to apply to provide private, internal communications services in
    this spectrum without participating in an auction. [^80] Relying on
    an analogy to the holding in *National Public Radio, Inc. v. FCC*
    regarding the auction exemption for non-commercial educational
    ("NCE") broadcast stations,[^81] OCTO contends that under the
    exemption from the Commission's competitive bidding authority in
    Section 309(j)(2)(A) of the Communications Act, eligible public
    safety service providers may not be compelled to bid for Lower 700
    MHz Band spectrum used for private internal radio services.[^82]

35. *[Discussion]{.underline}*. We deny OCTO's petition. We did not
    designate any portion of the band to "public safety radio services"
    in the *Lower 700 MHz Report and Order.* Instead, we allocated the
    entire band for flexible use by fixed, mobile, and broadcast
    services.[^83] Thus, this band is not subject to the "public safety
    radio services" auction exemption found at Section 309(j)(2)(A) of
    the Act.

36. OCTO argues that, because the *Lower 700 MHz Report and Order*
    permits private internal uses and public safety eligibles such as
    OCTO who have historically used private internal systems, the
    Section 309(j)(2)(A) competitive bidding exemption applies to public
    safety radio service eligibles that seek to acquire licenses on the
    Lower 700 MHz Band. In the *BBA Report and Order* and *BBA
    Memorandum Opinion and Order,* the Commission examined the scope of
    Section 309(j)(2)(A)'s exemption for public safety radio services,
    and concluded that the public safety radio services exemption
    applies to spectrum for particular services, rather than individual
    users of spectrum.[^84] Thus, the rules for a particular service
    determine whether spectrum is designated for public safety radio
    services exclusively,[^85] and Part 27 rules do not define any
    portion of the Lower 700 MHz spectrum as "public safety radio
    services" band.[^86] In developing service rules in this proceeding,
    we relied on the record which demonstrated demand for commercial
    wireless and broadcast services in the Lower 700 MHz Band.[^87]
    These service rules reflect established Commission policy that
    favors flexibility of use as well as the Commission's experience in
    allocating spectrum, predictions about future demands and
    technologies, and statutory and other public interest
    considerations.[^88] To the extent that public safety users desire
    spectrum in a particular band, we encourage them to participate in
    the service rule proceedings to help craft rules conducive to public
    safety needs. Public safety users, such as OCTO, may apply for
    unassigned spectrum in the Lower 700 MHz Band pursuant to the
    Commission's established Section 337 procedures,[^89] or apply for
    designated public safety spectrum.[^90]

37. *National Public Radio, Inc. v. FCC*[^91] does not alter our
    determination that the public radio services exemption in Section
    309(j)(2)(A) does not apply to spectrum to be auctioned in the Lower
    700 MHz Band. In *NPR*, the Court held that the Section 309(j)(2)(C)
    exemption from competitive bidding for non-commercial educational
    broadcasters ("NCEs")[^92] exempts NCEs from participating in
    auctions for any broadcasting spectrum, whether or not the spectrum
    has been reserved for noncommercial educational use.[^93] Because
    Section 309(j)(2)(C) specifically exempts NCE "stations," the court
    concluded that the NCE exemption "is based on the nature of the
    station that ultimately receives the license, not on the part of the
    spectrum in which the station operates."[^94] In contrast to Section
    309(j)(2)(C)'s NCE exemption specifically at issue in *NPR*, the
    public safety radio services exemption in Section 309(j)(2)(A) does
    not "refer\[ \] to the ultimate recipient of the license."[^95]
    Rather, it specifically refers to "public safety radio services"
    used by public safety entities, and not to public safety stations or
    licensees themselves. Thus, we have previously found that the NCE
    exemption addressed in *NPR* is not analogous to the application of
    the Section 309(j)(2)(A) exemption,[^96] as OCTO claims. We
    therefore believe that the plain language analysis used in *NPR*
    supports our interpretation of Section 309(j)(2)(A) in this
    Memorandum Opinion and Order.

38. This interpretation of the public safety radio services exemption is
    also consistent with our obligations to auction and manage the Lower
    700 MHz Band. Section 309(j)(14) of the Communications Act requires
    the Commission to reclaim and assign the Lower 700 MHz Band by
    competitive bidding.[^97] Thus, allowing public safety entities to
    acquire spectrum in this band under the Section 309(j)(2)(A)
    exemption would undermine Congress's intent to auction this
    spectrum. Under Section 309(j)(3) of the Act, in using competitive
    bidding to assign licenses the Commission must seek to promote a
    number of competing objectives such as: promoting the introduction
    and deployment of new technologies and services for the public;
    encouraging economic opportunity and competition; and allowing time
    for interested parties to develop their business plans.[^98] Once
    Congress has determined that a band should be licensed through
    competitive bidding, as here, allowing public safety eligibles to
    override that designation under the Section 309(j)(2)(A) exemption
    would undermine Congress' directive and the Commission's auction
    authority.[^99] Because the approach advocated by OCTO would make
    spectrum freely available to public safety radio service eligibles
    on demand, the Commission and other potential applicants would not
    know in advance which licenses would be available at auction.[^100]
    Such uncertainty would cause delays in the deployment of new
    spectrum-based services and would frustrate the statutory objectives
    of reclaiming the spectrum and subjecting it to competitive
    bidding.[^101]

39. For similar reasons, we decide, on our own motion, that NCEs are not
    eligible to apply for initial licenses for new services in the Lower
    700 MHz Band.[^102] Prohibiting NCE broadcasters from acquiring
    spectrum in this band under the Section 309(j)(2)(C) exemption is
    necessary to implement the Commission's decisions to establish
    flexible mixed use licenses assigned by competitive bidding.[^103]
    By taking a flexible use approach and using competitive bidding, we
    established a market-based approach that allows the spectrum to be
    employed for a full range of allocated services, so long as such
    operations comply with Part 27's technical requirements.[^104] We
    recognized in the recent *NCE Second FNPRM* that the restriction we
    adopt here would be consistent with the statutory language, as
    interpreted by the court in the *NPR* case.[^105] We believe that
    this approach as applied to new services in the Lower 700 MHz Band
    will eliminate uncertainties about the outcome of the competitive
    bidding process and promote our goals of assigning these licenses
    expeditiously and promoting the intensive and efficient use of this
    spectrum.[^106] Our decision here does not in any way prejudge the
    outcome that will be taken in MM Docket No. 95-31.[^107] In this
    regard, we note that the Lower 700 MHz band is flexible mixed use
    spectrum, and very different considerations apply to conventional
    broadcast licenses regulated under Parts 73 and 74 that are the
    subject of that proceeding. In arriving at a decision in that
    proceeding, we intend to ensure that NCE broadcasters will continue
    to have adequate access to broadcast spectrum.

## DTV Transition Issues

### Temporary Relocation of Analog Stations to Channels 52-58 to Facilitate Band Clearing

40. *[Background]{.underline}.* In the *Upper 700 MHz Third Report and
    Order*, the Commission decided "not to prohibit" three-way
    band-clearing agreements pursuant to which a station might relocate
    temporarily into Channels 52-58.[^108] In the *Lower 700 MHz Report
    and Order*, we decided to (1) dismiss pending petitions for new NTSC
    channel allotments on channels 52-59; and (2) dismiss pending
    applications for NTSC stations on channels 52-59 unless applicants
    modify their filings to provide analog or digital service in the
    core or digital service on channels 52-58. On behalf of itself and
    SCA, Paxson seeks clarification that the Commission's decision in
    the *Lower 700 MHz Report and Order* does not prohibit proposals to
    relocate analog stations to channels 52-58 in connection with Upper
    700 MHz band clearing agreements.[^109] Paxson contends that the
    policy of permitting band-clearing analog broadcasters to
    temporarily relocate into the Lower 700 MHz band is consistent with
    the principle of providing broadcasters with maximum flexibility to
    develop voluntary agreements to facilitate the early clearance of
    the Upper 700 MHz band.[^110] Council Tree opposes Paxson's petition
    and seeks to prohibit any additional analog stations in the Lower
    700 MHz band.[^111] Council Tree argues that, if broadcasters are
    permitted to move temporarily to Channels 52-58, such incumbents
    will be in a position to seek compensation from new 700 MHz
    licensees twice, and that such moves will frustrate or delay the
    introduction of new Lower 700 MHz services.[^112]

41. *[Discussion]{.underline}*. Pursuant to our band clearing policy, we
    will entertain proposals to temporarily relocate analog operations
    to Channel 52-58 in connection with voluntary band clearing
    arrangements that would result in the clearing of a Channel 59-69
    station. As stated above, the Commission adopted a policy in the
    *Upper 700 MHz Third Report and Order* not to prohibit three-way
    band-clearing agreements pursuant to which a station might relocate
    temporarily into Channels 52-58.[^113] In so doing, the Commission
    observed that this alternative could provide necessary flexibility
    to incumbents on Channels 59-69 to enter into early clearing
    arrangements.[^114] The Commission has consistently recognized that
    extending flexibility to Channel 59-69 broadcasters to enter into
    voluntary arrangements for the early clearing of the Upper 700 MHz
    bands may make this spectrum available more quickly for new public
    safety and other services and promote the transition of analog
    television licensees to digital television service.[^115]

42. Contrary to Council Tree's suggestion, we do not believe that this
    policy presents significant uncertainties for potential bidders for
    licenses in the Lower 700 MHz band. An analog broadcaster that seeks
    to move temporarily into this band must move into an existing
    Channel 52-58 allotment because the Commission has previously
    determined that it will not create new allotments in the Upper or
    Lower 700 MHz bands.[^116] Thus, as the Commission pointed out in
    the *Upper 700 MHz Third Report and Order*, such temporary moves
    "will not increase the number of stations that will have to be
    cleared from Channels 52-58, but merely replace one station on those
    channels with another."[^117] For this reason, potential new 700 MHz
    licensees should be able to determine prior to the auctions the
    number of incumbent broadcast operations that may exist in (and
    adjacent to) the geographic areas and frequency bands that they are
    interested in serving.[^118]

43. We also disagree with Council Tree's argument that some broadcasters
    might be able to obtain excessive payments from new 700 MHz
    licensees in exchange for early band clearing.[^119] Our voluntary
    band clearing policy merely permits bidders and broadcasters to
    negotiate for the economic value of early clearing.[^120] Once a
    particular allotment is cleared, the allotment would become part of
    the relevant 700 MHz license (or licenses), and no incumbent
    broadcast operation would be permitted to move into that allotment,
    except with the agreement of the new 700 MHz licensee.[^121] Thus, a
    new 700 MHz licensee would not be liable for multiple payments to
    clear a single allotment. Further, this policy is entirely
    voluntary. There are possible uses for this spectrum that would
    allow new Lower 700 MHz licensees to begin operating immediately,
    subject to the requirement that they protect incumbent TV and DTV
    facilities from harmful interference. Such licensees would have full
    use of the licensed spectrum at the end of the DTV transition period
    in each market, at which time all incumbent broadcasters will be
    required to vacate the 700 MHz bands.[^122] In addition, market
    forces should act to keep the total amount of all clearing payments
    at a reasonable level both because the interests of broadcasters and
    bidders in these negotiations are not congruent and because bidders
    that participate in band-clearing arrangements will have to outbid
    other wireless entities which may be willing to hold licenses for
    encumbered spectrum. When it extended this flexibility to Upper 700
    MHz band-clearing broadcasters, the Commission explicitly recognized
    that, because relocations from Channels 59-69 to Channels 52-58
    would be interim in nature, such moves could result in duplicative
    costs for broadcasters, additional disruption to viewers, and other
    inefficiencies.[^123] However, the Commission observed that the
    benefits of such an arrangement "may well be substantial, and that a
    broadcaster will have considered the costs in its individual
    situation before voluntarily agreeing to move into Channels 52-58
    with the knowledge that it will subsequently be obligated to vacate
    that allotment."[^124] Consistent with our policy regarding the
    early voluntary clearing of the 700 MHz bands, we will consider any
    such public interest issues in our review of regulatory requests
    filed in connection with such voluntary clearing agreements.[^125]

### Pending NTSC Petitions and Applications

44. *[Background]{.underline}*. In the *Lower 700 MHz Report and Order*,
    the Commission dismissed all pending petitions for new NTSC channel
    allotments in the Lower 700 MHz Band (channels 52-59).[^126] The
    Commission stated that such petitioners could refile a new DTV
    channel allotment petition on a core channel, subject to meeting the
    DTV spacing requirements.[^127] With respect to pending applications
    to construct new NTSC stations in the Lower 700 MHz Band, the
    Commission afforded applicants a 45-day window to modify their
    station proposals either (a) to provide analog or digital service on
    a core channel, or (b) to provide digital service in channels
    2-58.[^128] The Commission stated that it would dismiss any pending
    application that did not meet either of these conditions at the end
    of the 45-day window.[^129] The Commission also determined that it
    would no longer accept or grant any application for channel 59
    because of the adjacent channel interference that such stations
    could cause to new licensees in the Upper 700 MHz Band.[^130]

45. Pappas/Iberia[^131] and WB filed petitions for reconsideration of
    the Commission's disposition of petitions for NTSC allotments and
    applications to construct NTSC stations in the Lower 700 MHz Band.
    Pappas/Iberia[^132] and WB argue that the Commission's rationale for
    not allowing additional NTSC allotments or facilities in the Lower
    700 MHz Band does not support its decision.[^133] Pappas/Iberia
    further argue that they have relied to their economic detriment on
    past Commission statements indicating that it would process
    applications for NTSC stations in the Lower 700 MHz Band.[^134]
    Pappas/Iberia acknowledge that the Commission may change its
    allotment policies but argue that it has failed to provide a
    reasoned basis for not allowing additional NTSC allotments or
    facilities in the Lower 700 MHz Band. Pappas/Iberia and WB request
    that we process petitions for new NTSC channel allotments and
    applications to construct new NTSC stations in the Lower 700 MHz
    Band.[^135] They also request that we grant certain waivers of our
    rules in connection with the processing of such petitions and
    applications.[^136]

46. *[Discussion]{.underline}*. We affirm our decision in the *Lower 700
    MHz Report and Order* to (1) dismiss pending petitions for new NTSC
    channel allotments on channels 52-59, but permit such petitioners to
    refile new DTV allotment petitions on a core channel, subject to
    meeting DTV spacing requirements; and (2) permit entities with
    pending applications to modify their filings to provide analog or
    digital service in the core or digital service on channels 52-58.

47. Univision requests that we exclude it from the category of
    applicants who must now amend their applications to specify an
    in-core channel or DTV operation, or face dismissal.[^137] Univision
    was the winning bidder in FCC Auction No. 80 (July 2000) for NTSC
    Channel 52 at Blanco, Texas.[^138] In the alternative, Univision
    asks that the Commission grant its pending petition for rulemaking
    (filed March 8, 2002) proposing to substitute NTSC Channel 17 for
    NTSC Channel 52 (Petition).[^139] We require the Media Bureau to
    work with Univision to expedite the allotment process. In addressing
    the Petition, we direct the Media Bureau to consider waiver of the
    applicable land mobile distance separation criterion for the site
    proposed in Univision's petition for rulemaking based on the record
    in that proceeding. Such wavier relief, if granted, should be
    conditioned on Univision agreeing to (1) accept interference from
    current and future 488-494 MHz land mobile facilities operating from
    base stations located within 50 miles of the Houston reference point
    and mobile units operating within 30 miles of their associated base
    stations and (2) not radiate a signal in the Houston area where land
    mobile operation is permitted with a field strength greater than
    that permitted by a full-power TV station that meets the co-channel
    distance separation criteria (341.1 km).[^140]

48. Pappas/Iberia and WB argue that the decision to permit NTSC
    applicants to provide digital service in the Lower 700 MHz Band will
    not ensure the recovery of this spectrum because DTV operations will
    encumber this spectrum just as much as NTSC operations.[^141] WB
    also argues that limiting new Lower 700 MHz Band stations to DTV
    service would not further the transition to DTV. [^142] We disagree.
    We continue to believe that authorizing new NTSC allotments or
    stations in the Lower 700 MHz Band is inconsistent with the 1997
    Budget Act mandate to reclaim this spectrum for new services,[^143]
    and to facilitate the transition to digital television
    service.[^144] As we noted in the *Lower 700 MHz Report and* Order,
    digital deployment in the Lower 700 MHz Band will introduce new
    digital service and could promote the acquisition of digital
    equipment by consumers.[^145] Moreover, new service providers in
    this band may be able to co-exist more easily with digital
    television stations because such stations operate with less power
    than most analog stations and are more resistant to
    interference.[^146] In addition, this approach can avoid the
    complications that could arise with requiring licensees to convert
    their NTSC operations to digital relatively soon after they commence
    operations.[^147]

49. We also disagree with Pappas/Iberia's and WB's argument that the
    grant of additional requests for NTSC allotments and stations in the
    band "would constitute a negligible increase"[^148] and would have a
    "low overall impact" on the Lower 700 MHz Band.[^149] While not all
    of the 57 requests for new NTSC stations and allotments pending at
    the time we released the *Lower 700 MHz Report and Order* could have
    been granted, there are approximately 100 NTSC stations in this band
    and, even assuming that only ten of them were granted, the number of
    NTSC stations in the band would increase by approximately ten
    percent. Such an increase would not be *de minimis* and could
    substantially increase the burden on new licensees to protect
    incumbents particularly because NTSC stations are more susceptible
    to interference.

50. Pappas/Iberia argue that the *Lower 700 MHz Report and Order*
    conflicts with Section 309(l)(3) of the Act, [^150] which directs
    the Commission to "waive any provisions of its regulations necessary
    to permit" settlements between mutually exclusive applicants for
    commercial television stations during the 180-day period beginning
    on the date of enactment of the 1997 Budget Act.[^151] Pappas/Iberia
    claim that they may not be able to effectuate their settlement
    agreements, and that they have been deprived of due process. [^152]
    We disagree. Neither the plain language of Section 309(l)(3) nor its
    legislative history suggests that Congress intended to limit our
    ability to require modification of settlement agreements. It is well
    established that the filing of an application with the FCC creates
    no vested rights in the applicant,[^153] and that the Commission may
    "make midstream rule adjustments, even though it disrupts
    expectations and alters the competitive balance among
    applicants."[^154] The Commission did not deprive Pappas and Iberia
    of their ability to have their settlement proposals considered using
    the same procedures as used for all other similarly situated
    applicants.[^155] Because Pappas and Iberia can effectuate their
    settlement agreements by specifying either digital service in
    channels 2-58 or NTSC service in the core, the *Lower 700 MHz Band
    Order* does not conflict with Section 309(l)(3) of the Act.

51. Pappas/Iberia also argue that the Commission's decision not to grant
    additional NTSC facilities in the Lower 700 MHz Band constitutes an
    unjustified departure from the Commission's first local service
    policy.[^156] In the *Lower 700 MHz Band Order*, the Commission
    acknowledged that several commenters, including Pappas and WB,
    identified the potential benefits of first local service.[^157] The
    Commission, however, weighed competing policy considerations and
    found that not granting additional NTSC facilities in the Lower 700
    MHz Band would further the 1997 Budget Act mandate to recover
    spectrum in the band.[^158] Moreover, the *Lower 700 MHz Band Order*
    did not foreclose the ability of applicants for NTSC stations in the
    band to provide first local television service: the order afforded
    applicants an opportunity to amend their applications to specify
    digital operations in channels 2-58 or analog service in the
    core.[^159]

### Mutually Exclusive Applications

52. *[Background]{.underline}*. On February 6, 2002, the Mass Media
    Bureau (now the Media Bureau) released a public notice in which it
    set forth filing procedures for the 45-day window for applicants for
    new NTSC stations on Channels 52-59 to modify their pending station
    proposals either (a) to provide analog or digital service on a core
    channel, or (b) to provide digital service in channels 2-58.[^160]
    The Mass Media Bureau determined that where multiple applicants have
    filed for a single NTSC allotment, they must file a petition for
    rulemaking proposing a single replacement channel to which all
    applicants agree to modify their applications.[^161] The Bureau also
    determined that where mutually exclusive applicants cannot agree on
    submission of a petition for the same replacement channel, then any
    petition filed by a member of such group would be dismissed.

53. KM filed a petition for reconsideration or clarification in which it
    requests that we overturn the Bureau's requirement that all pending
    mutually exclusive applicants for NTSC allotments in the Lower 700
    MHz Band join in any petition or amendment to petition for
    rulemaking to substitute an alternate channel.[^162] KM contends
    that it is unreasonable to expect competing applicants to agree upon
    the same replacement channel and that the dismissal of such
    competing applications for failure to agree is unduly harsh.[^163]
    KM requests that we accept all petitions or amendments to petitions
    for rule making that propose new allotments and treat one as the
    primary petition or amendment and the remainder as
    counterproposals.[^164] KM asks that, at a minimum, the Commission
    address on a case-by-case basis whether to require mutually
    exclusive applicants to join in a single petition or an amendment to
    a petition for rule making.[^165]

54. *[Discussion]{.underline}*. We deny KM's petition. KM does not cite
    any case law, statute, rule, or FCC policy in support of its
    arguments. Nor are we aware of any. In the DTV *Sixth Further Notice
    of Proposed Rulemaking*,[^166] the Commission stated that
    elimination of vacant NTSC allotments would help it achieve its
    goals of full accommodation, replication and spectrum
    recovery.[^167] The Commission stated that in some areas a DTV
    channel could not be accommodated unless the unused NTSC allotments
    were eliminated and, in other areas, the presence of unused NTSC
    allotments would crowd the expected service areas of DTV
    allotments.[^168] The Commission therefore eliminated all vacant
    NTSC allotments. The Commission's decision in the DTV *Sixth Further
    Notice of Proposed Rulemaking* was founded on the need to preserve
    spectrum for use by new DTV stations and to avoid prolonging the DTV
    transition.[^169] We find that grant of the relief requested by KM
    would hinder the DTV transition in that the uncertainty created by
    the filing of allotment modification petitions for different
    channels by mutually exclusive applicants would frustrate the
    efforts of parties seeking new or modified DTV allotments.
    Accordingly, KM's petition is denied.

# PROCEDURAL MATTERS AND ORDERING CLAUSES

55. Alternative Formats. Alternative formats (computer diskette, large
    print, audiocassette and Braille) are available to persons with
    disabilities by contacting Martha Contee at (202) 418-0260,
    TTY (202) 418-2555, or at <mcontee@fcc.gov>. This Memorandum Opinion
    and Order can also be downloaded at
    [http://www.fcc.gov/cgb/dro/](http://www.fcc.gov/cib/dro/).

56. Authority. This action is taken pursuant to Sections 1, 2, 4(i),
    5(c), 7, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311,
    314, 316, 319, 324, 332, 333, 336, 405, 614 and 615 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
    154(i), 155(c), 157, 201, 202, 208, 214, 301, 302, 303, 307, 308,
    309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 405, 614 and 615.

57. IT IS ORDERED, that the Petitions for Reconsideration filed by
    Access Spectrum, LLC, Pappas Telecasting of America, a California
    Limited Partnership, and Iberia Communications, LLC, Spectrum
    Exchange Group, LLC and Allen & Company, WB Television Network, and
    Univision Television Group, Inc. ARE DENIED; that the Petitions for
    Reconsideration or Clarification filed by KM Communications, Inc.,
    and Office of the Chief Technology Officer, Government of the
    District of Columbia ARE DENIED; and that the Petition for
    Clarification or Reconsideration filed by Spectrum Clearing Alliance
    IS GRANTED, to the extent indicated above, and IS OTHERWISE DENIED.

58. IT IS ORDERED on our own motion that, pursuant to sections 1.106 and
    1.108 of the Commission\'s rules, 47 C.F.R. §§ 1.106, 1.108, the
    eligibility to apply for new services in the Lower 700 MHz Band is
    modified to the extent indicated above in Section III.A.3.

59. IT IS FURTHER ORDERED that these determinations WILL BECOME
    EFFECTIVE immediately upon release of this Memorandum Opinion and
    Order. Good cause exists for our determinations herein to take
    effect immediately because Auction No. 44 for the Lower 700 MHz Band
    is currently scheduled to commence on June 19, 2002.

    FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch

Secretary

**APPENDIX A**

**PETITIONS FOR RECONSIDERATION**

###  {#section .unnumbered}

Access Spectrum, LLC (Access Spectrum)

KM Communications, Inc. (KM)

Office of the Chief Technology Officer, Government of the District of
Columbia (OCTO)

Pappas Telecasting of America, a California Limited Partnership, and
Iberia Communications, LLC

(Pappas/Iberia)

Spectrum Clearing Alliance (SCA)

Spectrum Exchange Group, LLC and Allen & Company (Spectrum
Exchange/Allen)

Univision Television Group, Inc. (Univision)

WB Television Network (WB)

**Oppositions/Comments**

Council Tree Communications, LLC (Council Tree)

Motorola, Inc. (Motorola)

Pegasus Guard Band, LLC (Pegasus)

United States Cellular Corporation (US Cellular)

**Reply Comments**

Access Spectrum

Industrial Telecommunications Association, Inc. (ITA)

Pappas/Iberia

SCA

Spectrum Exchange/Allen

US Cellular

**SEPARATE STATEMENT OF\
COMMISSIONER KEVIN J . MARTIN,**

**APPROVING IN PART, CONCURRING IN PART**

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

As I recently stated, I believe the Commission should have delayed the
auction for this band to allow us to consider the myriad spectrum issues
before us in a more comprehensive manner. That said, I generally approve
of most aspects of the allocation and service rules addressed in this
item. In particular, I am pleased that we have decided to maintain the C
Block allocation on an MSA and RSA basis. This allocation will allow
small regional and rural providers to participate meaningfully in the
auction, thereby furthering our statutory duty to promote service to
rural areas.

I continue to be disappointed, however, in the Commission's approach to
pending applications for construction permits to broadcast in analog on
channels in the lower 700 MHz band. As I stated with respect to our
earlier decision on this matter, granting these applications would
result in substantial consumer benefits with little or no harm to the
digital transition or the ability to auction the spectrum at issue. *See
generally* Separate Statement of Commissioner Kevin J. Martin,
*Reallocation and Service Rules for the 698-746 MHz Spectrum Band
(Television Channels 52-59),* Report and Order, 17 FCC Rcd 1022 (2002).
Indeed, had these applications been granted, nine communities would have
their own local channels for the first time.

These benefits would have come at very little cost. I understand that
only 16 of the pending applications are actually "grantable" from a
technical perspective and that all of them are in areas that are already
encumbered. The lower 700 MHz band, with 100 analog and 165 digital
stations in operation, is already four times more encumbered than the
upper 700 MHz band. As a result, the impact of granting a few of these
applications would have been minimal.

Accordingly, for all of these reasons, I believe that the public
interest would be better served by granting these applications.

[^1]: Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), GN Docket No. 01-74, *Report and
    Order*, 17 FCC Rcd 1022 (2002) (*Lower 700 MHz Report and Order*).

[^2]: *See* Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat.
    251 § 3003 (1997) ("BBA 97") (adding new Section 309(j)(14) to the
    Communications Act of 1934, as amended); § 3007 (uncodified;
    reproduced at 47 U.S.C. §309(j) note 3).

[^3]: The full names of petitioners and a list of parties filing
    oppositions and replies are listed in Appendix A.

[^4]: 47 U.S.C. § 309(j)(2)(A).

[^5]: 47 U.S.C. § 309(j)(1) (codifying BBA 97 § 3003). The statute
    further requires analog broadcasters to cease operation in the
    recovered spectrum by the end of 2006 unless the Commission extends
    the end of the transition. *Id.* § 309(j)(14)(A)-(B). As provided in
    the statute, the Commission is required to extend the end of the
    transition at the request of individual broadcast licensees on a
    market-by-market basis if one or more of the four largest network
    stations or affiliates are not broadcasting in digital,
    digital-to-analog converter technology is not generally available,
    or 15 percent or more television households are not receiving a
    digital signal. *Id.* § 309(j)(14)(B)(i)-(iii).

[^6]: *See* 47 U.S.C. § 309(j)(3)(A)-(E).

[^7]: *See id.* § 309(j)(4).

[^8]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59), GN Docket No. 01-74, *Notice of
    Proposed Rulemaking*, 16 FCC Rcd 7278, 7282 ¶ 6 (2001).

[^9]: *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1026 ¶ 6
    n.18.

[^10]: *See* "Auction of Licenses in the 698-746 MHz Band Scheduled for
    June 19, 2002, Notice and Filing Requirements, Minimum Opening Bids,
    Upfront Payments and Other Auction Procedures," *Public Notice*, DA
    02-563, Report No. AUC-02-44-B (Auction No. 44) (rel. Mar. 20,
    2002).

[^11]: Section 303(y)(2) authorizes the Commission to allocate spectrum
    to provide flexibility of use upon making certain findings. *See* 47
    U.S.C. § 303(y)(2). The Commission must make affirmative findings
    that such flexibility: (1) is consistent with international
    agreements, (2) would be in the public interest, (3) would not deter
    investment in communications services and systems, or technology
    development, and (4) would not result in harmful interference among
    users. *See* *id.*

[^12]: *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1059 ¶ 90.

[^13]: *Id*. at 1049 ¶¶ 62-63.

[^14]: *Id*. at 1063-67 ¶¶ 102-11.

[^15]: *See, e.g., id*. at 1029 ¶ 13 n.43.

[^16]: *Id.* at 1053-54 ¶¶ 76-77.

[^17]: *Id.* at 1054 ¶ 77.

[^18]: *See id.* at 1053-1062 ¶¶ 76-96.

[^19]: *See id.* at 1061 ¶ 95 (quoting 47 U.S.C. § 309(j)(3)(B)).

[^20]: *Id.* at 1060-61 ¶¶ 94, 96.

[^21]: *Id.* at 1059, 1061 ¶¶ 90 n.258, 95.

[^22]: *See* Spectrum Exchange/Allen Petition at 3-12; SCA Supplement to
    Petition at 4-7.

[^23]: Spectrum Exchange/Allen Petition at 3; SCA Supplement to Petition
    at 6.

[^24]: Spectrum Exchange/Allen Petition at 5.

[^25]: SCA Petition at 4.

[^26]: Council Tree Opposition (Mar. 14, 2002) at 8-9. Council Tree
    appears to suggest that SCA's Supplement to Petition was filed
    "late." *Id.* at 9. Under Section 1.429(d) of the rules, supplements
    to petitions for reconsideration that are filed within the 30-day
    period for filing petitions for reconsideration are considered
    timely. 47 C.F.R. § 1.429(d). SCA's Supplement to Petition was filed
    on March 8, 2002, which was 30 days after Federal Register
    publication of the summary of the *Lower 700 MHz Report and Order*.
    *See* 67 Fed. Reg. 5491 (February 6, 2002).

[^27]: *See* US Cellular Opposition at 4.

[^28]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission\'s Rules, WT Docket No.
    99-168, *First Report and Order*, 15 FCC Rcd 476, 500 ¶ 56 (2000)
    (*Upper 700 MHz First Report and Order*).

[^29]: *Id*. at 501-02 ¶¶ 59-60.

[^30]: *See* Amendment to the Commission's Rules to Establish New
    Personal Communications Services, *Second Report and Order,* 8 FCC
    Rcd 7700, 7732, ¶ 74 (1993) (subsequent history omitted).

[^31]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd 476, 501
    ¶ 59*.*

[^32]: We note that one 12 megahertz block of spectrum is significant in
    that it represents 25 percent of the 48 megahertz reallocated in the
    Lower 700 MHz Band spectrum. *See Lower 700 MHz Report and Order*,
    17 FCC Rcd at 1061 ¶¶ 95-96.

[^33]: *See, e.g., Lower 700 MHz Report and Order*, 17 FCC Rcd at
    1054-55 ¶¶ 77-80.

[^34]: Compared to other blocks, Block B (Channels 53 and 58) is
    relatively "insulated" from the TDD and/or new broadcast
    applications that Blocks D and E (Channels 55 and 56) could readily
    accommodate, as well as from DTV broadcasters on Channel 51 in the
    core and guard band users on Channel 60.

[^35]: *See* *supra* para 13.

[^36]: *See, e.g., Lower 700 MHz Report and Order*, 17 FCC Rcd at 1055,
    1076 ¶¶ 79, 140-42.

[^37]: We do not accept the argument by Spectrum Exchange/Allen that by
    placing a block licensed for MSAs/RSAs next to an Upper 700 MHz
    block licensed for EAGs, the current band plan would "pit large
    bidders against small bidders" and ultimately disadvantage small
    bidders. *See* Spectrum Exchange/Allen Petition at 6. Rather, we
    find no indication that small carriers will be disadvantaged by the
    band plan that we adopted, and we note that no small carrier has
    sought our reconsideration on the issue.

[^38]: *See, e.g.*, US Cellular Opposition at 4 n.5.

[^39]: Spectrum Exchange/Allen Petition at 7-12.

[^40]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1048-49 ¶ 61.

[^41]: *Id.* at 1064-65 ¶¶ 103, 107.

[^42]: *See* 47 C.F.R. § 27.50(b)(2)-(3).

[^43]: Unlike interference resulting from out-of-band emissions (OOBE),
    very strong adjacent channel signals can overload a receiver to the
    point where the receiver filtering is unable to prevent
    interference.

[^44]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1066 ¶ 110.
    Such notifications are to be provided to all adjacent channel Part
    27 licensees authorized to construct and operate base or fixed
    stations within 75 km of the higher-power base or fixed station.
    Licensees filing notifications with the Commission and adjacent
    channel licensees must provide the location and operating parameters
    of all base and fixed stations operating in excess of 1 kW ERP. Such
    notification must be filed with the Commission and adjacent channel
    licensees at least 90 days prior to the commencement of station
    operation. *Id*. When applicable, this requirement includes
    notification to Part 27 commercial and guard band manager licensees
    operating on Channel 60 in the Upper 700 MHz Band. *See id.* n.308*;
    Upper 700 MHz First Report and Order*, 15 FCC Rcd at 490 ¶ 32.

[^45]: *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1065, 1121-22 ¶
    106, App. D (¶¶ 3-4).

[^46]: OOBE interference results from emissions on frequencies outside a
    licensee's authorized band that fall within the pass band of an
    adjacent licensee's receiver(s). This type of interference cannot be
    mitigated through receiver filtering, and differs from the type of
    adjacent channel interference that results from emission that are
    contained within a licensee's authorized band, but fall just outside
    the pass band of an adjacent licensee's receiver(s)) (*see* note 43,
    *supra*). The Commission has historically addressed the problem of
    OOBE interference through the straightforward imposition of OOBE
    limits on transmitters.

[^47]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1069-70 ¶ 122.

[^48]: Access Spectrum Petition at 1. Access Spectrum has purchased
    licenses to operate as a Guard Band Manager in the 746-747 MHz guard
    band in the Upper 700 MHz Band. *Id*. at 2.

[^49]: *Id.* at 1, 4-8.

[^50]: *Id.* at 9-10.

[^51]: *See* Motorola Comments at 1; Pegasus Comments at 1; ITA Reply at
    1; US Cellular Reply at 1. US Cellular also supports the extension
    of Access Spectrum\'s proposal to include reduced power limits for
    Channel 56. *See* US Cellular Comments at 2.

[^52]: Opposition of Council Tree Communications, LLC to Petitions for
    Reconsideration at 4-5.

[^53]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1064 ¶ 104.

[^54]: *See, e.g.*, Access Spectrum Petition at 7; Pegasus Comments at
    5-6.

[^55]: *See* n.40, *supra.*

[^56]: *See* 47 C.F.R. § 2750(c)(5).

[^57]: The Commission made clear in the text of the *Lower 700 MHz
    Report and Order* that its decision contemplated the application of
    this mitigation requirement to guard band manager licensees
    operating on Channel 60 in the Upper 700 MHz Band. *See Lower 700
    MHz Report and Order*, 17 FCC Rcd at 1066 ¶ 110 n.308.

[^58]: *See* 47 C.F.R. § 27.53(f).

[^59]: Access Spectrum Petition at 6.

[^60]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1064-65 ¶ 105
    ("We have performed calculations that demonstrate, for example, how
    50 kW ERP, high antenna broadcast operations can co-exist with
    lower-power/low antenna height land mobile operations."); *see also
    id.* App. D (¶¶ 1-2).

[^61]: *See generally* n.39, *supra*.

[^62]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1064-65, 1121
    ¶¶ 104, 105, App. D (¶ 1).

[^63]: The Commission set a PFD maximum value on the ground to be
    calculated based on the technical parameters of the transmitting
    system. To meet the conditions of Section 27.55(b), a licensee
    operating a 50 kW ERP system would have to employ antennas that
    minimize energy at ground level near to the antenna and/or would
    have to locate such antennas at relatively high sites.

[^64]: Access Spectrum Petition at 6-7.

[^65]: *Id*. at 7.

[^66]: *Id.* at 6-7.

[^67]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1065 ¶ 106
    (stating that a "licensee could mitigate interference" and that
    "prospective licensees" should take into account any costs to
    incorporate these protection features when bidding on a license in
    the band).

[^68]: *Id*. at 1065 ¶ 106, App. D.

[^69]: Access Spectrum suggests that the Commission may have considered
    the interference impact of the 50kW limit only on licensees in the
    Lower 700 MHz Band and not on licensees in the adjacent Upper 700
    MHz Band. *See* Access Spectrum Petition at 7 n.17. As explained
    above (*see* para. 27, *supra*), Access Spectrum is mistaken. Its
    allegation is based on the misapplication of a single statement to a
    general discussion that focuses on the possibility of interference
    to any systems on adjacent channels. S*ee*, *e.g., Lower 700 MHz
    Report and Order*, 17 FCC Rcd at 1064 ¶ 104 (adopting mitigation
    measures on recognizing that operating at power levels in excess of
    1 kW creates the potential for interference "to systems on adjacent
    channels.").

[^70]: Access Spectrum Petition at 8.

[^71]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1066 ¶ 110.

[^72]: Access Spectrum Petition at 7-8.

[^73]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1051-10 ¶ 70;
    47 C.F.R. § 27.2(a) (stating that a licensee may provide any service
    for which its frequency bands are allocated).

[^74]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1051-52 ¶ 70.

[^75]: *See id.*

[^76]: *See id.* *See also id.* at 1029-32 ¶¶ 13-20.

[^77]: *Id.* at 1073 ¶ 132.

[^78]: *Id.* at 1051, 1073 n.198, ¶¶ 130, 132.

[^79]: Id. at 1072 ¶ 130 n.358.

[^80]: OCTO Petition at 1.

[^81]: *Id.* at 2 n.3.

[^82]: *Id.* at 3.

[^83]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1029 ¶ 13.

[^84]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies; Establishment of Public Service
    Radio Pool in the Private Mobile Frequencies Below 800 MHz; Petition
    for Rule Making of the American Mobile Telecommunications
    Association, *Report and Order and Further Notice of Proposed Rule
    Making*, WT Docket No. 99-87, RM-9332, RM-9405, RM-9705, 15 FCC Rcd
    22709, 22741 ¶ 66 (1999) (*BBA Lower 700 MHz Report and Order*);
    *Memorandum Opinion and Order*, WT Docket No. 99-87, FCC 02-82 ¶¶
    19-29 (rel. Apr. 18, 2002) (*BBA MO&O*).

[^85]: *BBA Report and Order*, 15 FCC Rcd at 22741 ¶ 66.

[^86]: We therefore find there is no need to explain "how the differing
    procedures for awarding commercial and public safety services
    licenses are to be reconciled . . . ." *See* OCTO Petition at 1.

[^87]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1051-52 ¶ 70.

[^88]: *See id.* at 1052 ¶¶ 70-71.

[^89]: 47 U.S.C. § 337. *See BBA Lower 700 MHz Report and Order Report
    and Order*, 15 FCC Rcd at 22767-71 ¶¶ 127-36; *BBA MO&O*, FCC 02-82
    ¶¶ 51-57. *See also* Amendment of Part 90 of the Commission's Rules
    To Adopt Regulations for Automatic Vehicle Monitoring Systems,
    *Order on Reconsideration of the Second Report and Order*, PR Docket
    No. 93-61, 14 FCC Rcd 1339, 1345 ¶ 10 (1999) (*LMS Reconsideration
    Order*) (denying petition for reconsideration of Hennepin County,
    Minnesota seeking an exemption under Section 309(j)(2) from the
    Commission's auction of licenses in the Location and Monitoring
    Service (LMS)). Subsequently, Hennepin County sought LMS frequencies
    under Section 337, and that application also was denied. *See*
    Hennepin County, *Order*, 14 FCC Rcd 19418, 19423 ¶ 10 (WTB 1999)
    (denying a request for waiver pursuant to Section 337, which was
    filed five weeks before the commencement of the LMS auction, for
    failure to meet statutory requirements). The Commission has awarded
    licenses to public safety entities under its Section 337 procedures.
    *See, e.g.,* South Bay Regional Public Communications Authority,
    *Memorandum Opinion and Order*, 13 FCC Rcd 23781 (1998); County of
    Sacramento, California, *Order on Reconsideration*, 15 FCC Rcd 12600
    (WTB 2000).

[^90]: Of course, public safety entities may also seek licenses through
    our competitive bidding process.

[^91]: *National Public Radio, Inc. v. FCC*, 254 F.3d 226 (D.C.Cir.2001)
    (*NPR*).

[^92]: 47 U.S.C. § 309(j)(2)(C).

[^93]: *NPR*, 254 F.3d at 228-29.

[^94]: *Id.*, 254 F.3d at 229.

[^95]: *See id.*

[^96]: *See* *BBA MO&O* at ¶ 27.

[^97]: 47 U.S.C. § 309(j)(14). *See also* *Lower 700 MHz Report and
    Order*, 17 FCC Rcd at 1024 ¶ 3.

[^98]: 47 U.S.C. § 309(j)(3).

[^99]: *See BBA MO&O* at ¶ 28.

[^100]: *See* Amendment of Part 90 of the Commission's Rules To Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Order on
    Reconsideration of the Second Report and Order*, PR Docket No.
    93-61, 14 FCC Rcd 1339, 1345 ¶ 10 (1999) (denying petition for
    reconsideration of Hennepin County, Minnesota seeking an exemption
    under Section 309(j)(2) from the Commission's auction of licenses in
    the Location and Monitoring Service (LMS)).

[^101]: *See* 47 U.S.C. § 309(j)(3)(A)-(E).

[^102]: In arriving at this decision, we do not reach the issue of
    whether the Section 309(j)(2)(C) exemption applies to mutually
    exclusive license applications for new services in the Lower 700 MHz
    Band. *See* 47 U.S.C. §§ 309(j)(2)(C), 397(6).

[^103]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1048 ¶ 61.

[^104]: *See id.*

[^105]: *See* Reexamination of the Comparative Standards for
    Noncommercial Educational Applicants; Association of America's
    Public Television Stations' Motion for Stay of Low Power Television
    Auction (No. 81), 17 FCC Rcd 3833, 3837 ¶ 11 (2002) (*NCE Second
    FNPRM*).

[^106]: *See id.*

[^107]: *See id.*

[^108]: Service Rules for the 746-764 MHz and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission\'s Rules, WT Docket No.
    99-168, Carriage of the Transmissions of Digital Broadcast Stations,
    CS Docket No. 98-120, Review of the Commission\'s Rules and Policies
    Affecting the Conversion to Digital Television, MM Docket No. 00-39,
    *Third Report and Order*, 16 FCC Rcd 2703, 2718 ¶ 36 (2001) (*Upper
    700 MHz Third Report and Order)*.

[^109]: *See* Petition for Clarification or Reconsideration of the
    Spectrum Clearing Alliance, GN Docket No. 01-74 (filed Feb. 5,
    2002); Supplement to the Petition for Clarification or
    Reconsideration of the Spectrum Clearing Alliance, GN Docket No.
    01-74, 1-4 (filed Mar. 8, 2002). Paxson states that SCA is a group
    of television broadcasters that own Channel 59-69 stations and have
    developed a plan for voluntary clearing of the Upper 700 MHz band.

[^110]: Paxson/SCA Petition at 4-5. Paxson also argues, in the
    alternative, for reconsideration of this decision in the event that
    the Commission intended to restrict such temporary relocations.
    Paxson/SCA Petition at 6-9. Because we affirm the policy established
    in *Lower 700 MHz Report and Order* and confirm that the Commission
    will consider proposals to temporarily relocate analog operations to
    Channel 52-58 in connection with voluntary band clearing
    arrangements that would result the clearing of a Channel 59-69
    station, we need not address the arguments concerning the adequacy
    of notice pursuant to the Administrative Procedure Act. *See id.*;
    Opposition of Council Tree Communications, LLC to Petition for
    Clarification or Reconsideration of the Spectrum Clearing Alliance,
    GN Docket No. 01-74, at 4-6 (filed Mar. 14, 2002) ("Council Tree
    First Opposition"); Consolidated Reply of the Spectrum Clearing
    Alliance to the Oppositions of Council Tree Communications, LLC and
    U.S. Cellular Corporation, GN Docket No. 01-74, at 5-6 (filed Apr.
    1, 2002) ("Paxson/SCA Reply").

[^111]: Council Tree First Opposition. *See also* Notice of *Ex Parte*
    Communication from Steve C. Hillard to William F. Caton, GN Docket
    No. 01-74 (filed Apr. 11, 2002) ("Council Tree *ex parte*").

[^112]: *See* Council Tree Opposition at 6-8; Council Tree *ex parte* at
    2.

[^113]: *Upper 700 MHz Third Report and Order*, 16 FCC Rcd 2703, 2718 ¶
    36.

[^114]: *See id.*

[^115]: *See, e.g., id.* at 2704 ¶ 2.

[^116]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1042 ¶ 44;
    Reallocation of Television Channels 60-69, The 746-806 MHz Band, ET
    Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953, 22971 ¶ 40
    (1998) (announcing intention to provide final opportunity to amend
    petitions and applications, after which petitions and applications
    that were not satisfactorily dismissed would be dismissed).

[^117]: *Upper 700 MHz Third Report and Order*, 16 FCC Rcd 2703, 2718 ¶
    36.

[^118]: The Wireless Telecommunications Bureau has recently released
    public notices that provide potential bidders with additional
    guidance on the nature and extent of possible broadcast encumbrances
    in these bands. However, as those public notices state, potential
    bidders are solely responsible for identifying associated risks and
    making determinations about their ability to make use of licenses in
    these bands. *See* "Due Diligence Announcement for the Upcoming
    Auction of Licenses in the 747-762 and 777-792 MHz Bands Scheduled
    for June 19, 2002, *Public Notice*, DT 02-903 (rel. Apr. 18, 2002);
    "Due Diligence Announcement for the Upcoming Auction of Licenses in
    the 698-746 MHz Band Scheduled for June 19, 2002, *Public Notice*,
    DT 02-904 (rel. Apr. 18, 2002).

[^119]: *See* Council Tree Opposition at 7-8; Council Tree *ex parte* at
    2.

[^120]: This additional value is not available to the Treasury so long
    as broadcasters are statutorily entitled to remain in the spectrum.

[^121]: It is possible that a particular broadcaster might receive
    payments for successively clearing allotments in the Upper and Lower
    700 MHz bands. Such broadcaster would, however, incur additional
    costs associated with making two moves.

[^122]: *See* 47 U.S.C. § 309(j)(14).

[^123]: *See Upper 700 MHz Third Report and Order*, 16 FCC Rcd at
    2717-18 ¶¶ 34-36.

[^124]: *Id.* at 2718 ¶ 36.

[^125]: *See id.*

[^126]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1042 ¶ 44.

[^127]: *Id.*

[^128]: *Id.* at ¶ 45. The 45-day window opened January 22, 2002 and
    closed March 8, 2002.

[^129]: *Id.*

[^130]: *Id.*

[^131]: Pappas/Iberia filed a joint petition.

[^132]: At the time they filed their joint petition, Pappas sought
    authorizations for five NTSC stations in the Lower 700 MHz Band and
    Iberia sought one.

[^133]: Pappas/Iberia Petition at 2-17; WB Petition at 2-14.

[^134]: Pappas/Iberia Petition at 4-7.

[^135]: Pappas/Iberia Petition at 20-21; WB Petition at 23.

[^136]: Pappas/Iberia Petition at 12-13; WB Petition at 16-21. A
    petition for reconsideration is not the proper vehicle for raising
    the waiver issues. *See* 47 C.F.R. § 1.429. Moreover, because the
    waiver requests of Pappas/Iberia and WB presuppose that we will
    authorize additional NTSC facilities and allotments in the Lower 700
    MHz Band, which we will not, we find that addressing their waiver
    requests would serve no useful purpose. Pappas/Iberia also claims
    that waiver relief (*e.g.*, short spacing) should be afforded to new
    digital facilities in the Lower 700 MHz Band. Pappas/Iberia Petition
    at 13. Such requests for relief are highly fact specific and
    therefore should be raised in the context of the particular
    rulemaking or application proceeding. However, we are not inclined
    to grant waivers that will create additional DTV incumbents in the
    lower 700 MHz band beyond those situations explicitly addressed in
    paragraphs 44 and 45 of the *Lower 700 MHz Report and Order.*
    Specifically, petitions originally filed requesting that we allot
    new NTSC channels that have been amended or refiled to propose new
    DTV channel allotments are not allowed to propose channels above
    Channel 51 pursuant to Section 73.622(a)(1) of the Commission's
    rules. We have not waived this rule in the past and are not
    persuaded on the basis of what has been presented that we should do
    so here.

[^137]: Univision Petition for Reconsideration at 24.

[^138]: Univision has remitted to the U.S. Treasury all sums due to this
    point pursuant to its bid.

[^139]: Univision Petition for Reconsideration at 24.

[^140]: *See* Amendment of Parts 2, 89, 91, and 93; Geographic
    Reallocation of UHF-TV Channels 14 Through 20 to the Land Mobile
    Radio Services for Use Within the 25 Largest Urbanized Areas of the
    United States; Petition Filed by the Telecommunications Committee of
    the National Association Of Manufacturers to Permit Use of TV
    Channels 14 and 15 by Land Mobile Stations in the Los Angeles Area,
    Docket No. 18261, RM-566, *First Report and Order*, 23 FCC2d 325
    (1970) (subsequent history omitted).

[^141]: Pappas/Iberia Petition at 5-6; WB Petition at 3.

[^142]: WB Petition at 3-4.

[^143]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1042-43 ¶ 45.

[^144]: *Id.* at 1042 ¶ 44.

[^145]: *Id.* at 1042-43 ¶ 45.

[^146]: *Id.*

[^147]: *Id*.

[^148]: WB Petition at 9.

[^149]: Pappas/Iberia Petition at 9.

[^150]: 47 U.S.C. § 309(l)(3). Pappas/Iberia Petition at 7-9.

[^151]: At the time we released the *Lower 700 MHz Report and Order,*
    Pappas and Iberia each had a settlement pending before the Mass
    Media Bureau.

[^152]: Pappas/Iberia Petition at 8.

[^153]: *See* *Bachow Communications, Inc., et al. v. FCC,* 237 F.3d
    683, 687-88 (D.C. Cir. 2001) (applicants for licenses had no
    \"vested right\" in enforcement of cut‑off rules). *Chadmoore
    Communications, Inc. v. FCC*, 113 F.3d 235 (D.C. Cir. 1997). In
    *Chadmoore,* the D.C. Circuit held that the FCC's reliance upon a
    new regulation to deny Chadmoore's application for extended
    implementation authority for construction of a wide‑area specialized
    mobile radio system was neither arbitrary nor capricious. The court
    stated that the Commission's action did not "impair\[\] a right
    possessed by \[Chadmoore\] because none vested on the filing of its
    application." *Id.* at 241.

[^154]: *Bachow* at 687-88 (citing *Maxcell*, 815 F.2d 155; and
    *DIRECTV, Inc. v. FCC*, 110 F.3d 816 (D.C. Cir. 1997)).

[^155]: *See* *Maxcell Telecom Plus, Inc. v. FCC*, 815 F.2d 1551, 1555
    (D.C. Cir. 1987).

[^156]: Pappas/Iberia Petition at 13-15. See also WB Petition at 11-12
    (allowing additional NTSC stations in the Lower 700 MHz Band would
    result in a first local service in some communities).

[^157]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1041-42 ¶ 42 and
    nn.134-37.

[^158]: *Id.* at 1042-43 ¶ 45.

[^159]: WB and Pappas/Iberia also argue that the Commission should
    postpone the 700 MHz band auctions. Pappas/Iberia Petition at 21; WB
    Petition at 10-12. On April 10, 2002, the Wireless
    Telecommunications Bureau declined to postpone Auction Nos. 31 and
    44. See Letter from Thomas J. Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, to
    Thomas E. Wheeler, President/CEO, Cellular Telecommunications &
    Internet Association (CTIA), DA 02-857 (rel. Apr. 11, 2002). CTIA
    filed an Application for Review of that decision, dated April 24,
    2002. On April 26, the Bureau, acting pursuant to delegated
    authority, established an expedited schedule for the filing of
    oppositions to the CTIA Application for Review. *See* "Pleading
    Cycle Established For Oppositions To Application For Review Of
    Wireless Telecommunications Bureau April 10, 2002 Letter, D.A.
    02-857, Regarding Schedule For Auction Nos. 31 And 44," *Public
    Notice,* DA-02-971 (WTB rel. Apr. 26, 2002). We intend to address
    the issue of whether to postpone Auction Nos. 31 and 44 in that
    proceeding.

[^160]: *See* "Mass Media Bureau Announces Window Filing Opportunity for
    Certain Pending Requests for NTSC Television Stations on Channels
    52-59," *Public Notice,* DA-02-270 (MMB rel. Feb. 6, 2002). The
    45-day window opened January 22, 2002 and closed March 8, 2002.

[^161]: *Id.*

[^162]: KM Petition at 1. KM's petition, albeit styled as a petition for
    reconsideration or clarification of the *Lower 700 MHz Report and
    Order*, essentially is an application for review of the procedures
    established by the Bureau.

[^163]: *Id.* at 5.

[^164]: *Id.* at 5-6.

[^165]: *Id.* at 6.

[^166]: Advanced Television Systems and Their Impact upon the Existing
    Television Broadcast Service, *Sixth Further Notice of Proposed
    Rulemaking*, 11 FCC Rcd 10968 (1996) (subsequent history omitted).

[^167]: *Id.* at 10991 ¶ 58.

[^168]: *Id*.

[^169]: *Id.* at 10993 ¶ 62.