Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Extending Wireless ) WT Docket No. 99-266

Telecommunications Services )

To Tribal Lands )

NOTICE OF PROPOSED RULEMAKING

**Adopted: August 5, 1999 Released: August 18, 1999**

Comments Due: 60 days after publication in the Federal Register

Reply Comments Due: 90 days after publication in the Federal Register

By the Commission: Commissioner Tristani issuing a statement.

TABLE OF CONTENTS

[Paragraph No.]{.underline}

I. INTRODUCTION 1

II\. BACKGROUND 5

III\. DISCUSSION 16

A. Encouraging Existing Terrestrial Wireless and Satellite Carriers to
Extend Service to Individuals Living on Tribal Lands 16

1\. Modifications to Height/Power Rules 17

2\. Liberalized Buildout Requirements 23

3.  Right to Extend into Tribal Lands in Adjacent Licensing Areas 25

4\. Expansion of Permissible Service Definitions 28

5\. Modification of Designated Entity Transfer Restrictions 35

6.  Satellite Policies for Existing Satellite Licensees 37

7\. Conditioning the Grant of Additional Flexibility on the Existence of
a Binding Agreement between the Licensee and the Affected Tribe 40

B. Licensing of New Terrestrial Wireless and Satellite Entrants to
Provide Service on Tribal Lands 43

1\. Unallocated or Unlicensed Spectrum Bands That Could Serve the Needs
of Individuals Living on Tribal Lands 43

2\. Licensing in Spectrum Bands Allocated to Other Services 44

> 3\. Drawing Geographic Boundaries for Spectrum Licenses That Recognize
> the Service Needs of Individuals Living on Tribal Lands 47

4\. Technical/Operational Rules for New Services 49

5.  Auction Bidding Credits for Provision of Service on Tribal Lands 50

6.  Satellite Licensing Policies 54

IV\. PROCEDURAL MATTERS 59

A. Ex Parte Rules -- Permit-But-Disclose Proceeding 59

B. Initial Regulatory Flexibility Analysis 60

C. Initial Paperwork Reduction Act of 1995 Analysis 61

D. Comment Dates 62

V.  ORDERING CLAUSES 66

APPENDIX -- Initial Regulatory Flexibility Analysis

I.  INTRODUCTION

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1.  In this Notice of Proposed Rulemaking (Notice), we seek comment on
    potential terrestrial wireless and satellite policy initiatives to
    address the telecommunications needs of Indians[^1] living on tribal
    lands.[^2] As we have stated previously, the Telecommunications Act
    of 1996 instructed the Commission to help ensure that all Americans
    have access to affordable telecommunications services.[^3]
    Consistent with that mandate, the Commission seeks to secure for
    consumers living on tribal lands the same opportunities to take
    advantage of telecommunications capabilities that other Americans
    have. In addition, we seek comment on whether to extend these
    initiatives to consumers in other unserved areas.[^4]

2.  The relatively low incomes of most Indians on tribal lands and the
    rural (and, thus, generally high cost) environment of most tribal
    lands have produced extremely low telephone penetration rates --
    even compared to penetration levels for other Americans of similar
    economic status living in rural areas.[^5] Because telephone service
    is a necessity in our modern society, this lack of access to basic
    telecommunications services puts the Indian communities at a
    tremendous disadvantage. People with serious health problems are
    subject to significant medical risks if they lack easy access to
    telephone service. Unemployed workers seeking jobs cannot give
    prospective employers telephone numbers at which to reach them, nor
    can they make follow-up calls quickly and easily. Parents at home
    without a phone cannot be contacted by schools in cases of
    emergency. As public officials rely more on telephone opinion polls
    to assess public sentiment and set policies, citizens who cannot be
    called are often not heard, and their views may be ignored. In
    addition, communities without phone lines lack access to the
    Internet, which is quickly becoming one of the most important media
    that people use not only for communication, but also to retrieve
    invaluable educational, medical, political, and financial
    information, among other things.

3.  We believe it is important at the outset to recognize the special
    relationship between the federal government and Indian tribes,[^6]
    as set forth in the Constitution of the United States, treaties,
    statutes, Executive Orders and court decisions. Historically, the
    United States has recognized the unique sovereign status of Indian
    tribes, the special trust relationship between the federal
    government and Indian tribes, and the federal obligation to
    guarantee the right of Indian tribes to self-government. The
    Commission also recognized that with respect to wireless
    telecommunications, tribal authorities have the right to control the
    placement of wireless facilities on tribal lands. [^7]

4.  In this Notice, we seek comment on the potential of terrestrial and
    satellite wireless technologies to provide basic telephone service
    on tribal lands and other unserved areas, particularly in remote
    areas where wireline alternatives would be significantly more
    expensive. We also seek comment on possible changes to our rules for
    terrestrial wireless and satellite services that would provide
    greater incentives for terrestrial wireless and satellite carriers
    to extend service to tribal lands and other unserved areas. In
    conjunction with this Notice, we are adopting a companion Further
    Notice of Proposed Rulemaking in which we propose initiatives to
    encourage the extension of wireline service to tribal lands and
    other unserved areas and to expand subsidies for all
    telecommunications carriers -- whether wireline, terrestrial
    wireless, or satellite − that serve such areas.[^8]

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II. BACKGROUND

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5.  As discussed in greater detail in the *Universal Service Further
    Notice*, the lack of access on tribal areas to basic
    telecommunications services is well-documented. A 1998 survey
    indicated that while the nationwide average penetration rate for
    those with incomes below \$5,000 living in rural areas was 76.7
    percent,[^9] the telephone penetration rates for individuals living
    on tribal lands at that same income level averaged approximately
    46.6 percent.[^10] In individual cases, penetration rates are often
    lower still. For example, the penetration rate is 16.1 percent on
    the San Carlos reservation in Arizona, and 18.4 percent on the
    Navajo reservation and trust lands in Arizona, New Mexico, and
    Utah.[^11] Clearly, a variety of factors contribute to these low
    penetration rates, including the geographic isolation and remoteness
    of many tribal lands, low income levels and high unemployment rates
    among individuals living on tribal lands.[^12] In addition, many
    tribal governments lack the resources of the states to subsidize the
    poorest residential communities with revenue from wealthy
    communities and business centers.[^13]

6.  Commission representatives have met with many tribal leaders and
    other representatives of Indian communities to obtain their insights
    into the problem of low telecommunications penetration on tribal
    lands. Earlier this year, the Commission held two public hearings at
    which federal and state officials, tribal officials, consumer
    advocates, and telecommunications services providers addressed
    issues such as the costs of delivering services to remote areas
    having very low population densities, the impact of the size of
    local calling areas on the affordability of service, the quality of
    telephone service on tribal lands, the complexities of governmental
    jurisdiction and sovereignty issues, and the effects of low incomes
    and high unemployment on tribal lands on telephone service.[^14]

7.  Because many tribal lands, particularly those in the western United
    States, are geographically isolated,[^15] obtaining the lowest cost
    for providing basic telephone service to the reservation population
    may often require use of a terrestrial wireless technology, a
    satellite technology, or a combination of these technologies.
    Terrestrial wireless technology includes both mobile services, such
    as cellular and Personal Communication Service (PCS), and fixed
    "wireless local loop" services (WLL). A hybrid terrestrial/satellite
    wireless model would involve a satellite providing the
    communications link between an isolated community and the nation's
    public switched telephone network for long distance telephony, with
    a terrestrial wireless loop used to link the individual residents
    and businesses in a particular community for local telephony.
    Alternatively, satellites can be used alone for long distance and
    local telephony through the use of handheld phones that can
    communicate directly with the satellites.

8.  Western Wireless, Inc. (Western Wireless) has submitted data to the
    Commission indicating that the forward-looking long-run cost of
    cellular service is less than the comparable cost for wireline
    technology for a number of wire centers, including those in rural
    areas of Montana and North Dakota.[^16] Terrestrial wireless
    technology also has the potential to extend service to remote tribal
    lands through fixed wireless systems that provide WLL. Fixed
    wireless operators claim that their networks have a significantly
    lower cost structure than wireline systems for two primary reasons.
    First, aside from the expenses associated with tower siting,
    wireless networks are free of many of the installation and
    maintenance costs associated with extending wireline networks to
    widely dispersed populations over long distances. Second, unlike a
    wireline network in which an entire market must be wired before
    initiating service, the capital expenditures of a wireless network
    can be incrementally incurred as more customers are added. Thus, WLL
    could offer cost savings for the provision of services to tribal
    lands.

9.  The potential for use of fixed wireless technology on tribal lands
    and other unserved areas is evidenced by other instances in which
    carriers have used wireless infrastructure to provide basic
    telephony in rural or otherwise unserved areas where wireline
    alternatives are not available. For example, Western Wireless is
    operating fixed wireless systems in Nevada and North Dakota using
    its cellular licenses. Under an agreement reached among Nevada Bell,
    the Nevada Public Service Commission, and Western Wireless to expand
    basic telephone service to a previously unserved region, Western
    Wireless provides dialtone service to two small rural communities,
    Antelope Valley and Reece, using its cellular infrastructure.[^17]
    Operating as a subcontractor to Nevada Bell, Western Wireless
    provides service at the regular tariffed wireline local rate to the
    50 residents of the region.[^18] Users connect to the Public
    Switched Telephone Network (PSTN) by way of a laptop-sized unit
    provided by Western Wireless. In the small town of Regent, North
    Dakota, Western Wireless set up a similar network in January
    1999.[^19] Western Wireless connected to the PSTN through
    Consolidated Telephone Cooperative ("CTC"), the incumbent local
    exchange carrier (ILEC) for the area.[^20] As of February 8, 1999,
    Western Wireless had signed up 40 customers, 20 percent of the
    town's 268 residents.[^21] Western Wireless' fixed local loop
    service is priced at \$14.99 per month versus \$16.00 for CTC,[^22]
    and the local calling area includes 15 communities rather than two
    communities for CTC.[^23]

10. In Puerto Rico, Centennial Cellular Corporation (Centennial) has
    been operating a WLL system since 1997 using its broadband PCS
    spectrum.[^24] Centennial offers both mobile and fixed services from
    the same platform. Centennial was serving 14,200 "HomePhone"
    customers as of November 30, 1998.[^25] The HomePhone unit looks and
    functions like a conventional telephone and supports call waiting,
    conference calling, call transfer, voice mail, one‑touch redial, and
    other features.[^26] HomePhone service costs \$29.95 per month for
    250 off-peak minutes and 30 peak minutes.[^27] This rate is for
    fixed use only: subscribers incur additional charges if they use the
    phone as a mobile unit.[^28] The phone can either be leased or
    purchased.[^29] All calls within Puerto Rico are local and incoming
    calls are free.[^30]

11. Besides these existing wireless services, other new services and
    spectrum allocations may offer platforms for extension of fixed
    services to tribal lands and other unserved areas. We have recently
    licensed numerous carriers in the Wireless Communications Service
    (WCS) and Local Multipoint Distribution Service (LMDS) bands, and
    our 24 GHz and 39 GHz proceedings could provide new opportunities
    for licensing of wireless carriers in tribal lands.[^31] We have
    also recently adopted greater flexibility in our Multipoint
    Distribution Service (MDS) and Instructional Television Fixed
    Service (ITFS) "wireless cable" rules to allow the provision of
    two-way service.[^32] While these rules require licensees offering
    two-way service to avoid interference with adjacent or co-channel
    systems, these rules could facilitate development of two-way
    services in tribal lands and other remote areas where the spectrum
    is not heavily used. In addition, one Indian-controlled carrier,
    Saddleback Communications, is operating on tribal lands in Arizona
    under an experimental license in the 3650-3700 MHz band.[^33]

12. Satellite technology also represents a potentially cost-effective
    alternative in serving unserved communities, especially those in
    remote areas.[^34] For example, satellites may offer cost advantages
    over wireline access alternatives in rural and remote areas, where a
    limited population cannot provide the economies of scale to justify
    the deployment costs of a wireline network for each community.[^35]
    Satellites have large coverage areas, and in many cases, can reach
    an entire nation, thereby having the ability to spread the costs of
    deployment across a number of communities. Satellites also provide
    communications opportunities for communities isolated in
    geographically extreme areas, such as mountainous regions and deep
    valleys, where rugged and impassable terrain makes service via
    cellular and standard telephone lines impractical. Satellites can
    offer a variety of telecommunications services, from such basic, low
    bandwidth services including data messaging services and basic
    telephone service to more advanced, higher bandwidth services,
    including voice dispatch, video and high speed Internet access.[^36]

13. An increasing amount of evidence exists to demonstrate the value
    that satellites can bring to tribal lands for emergency and basic
    telecommunications needs. For example, police forces within the
    Navajo Nation have used American Mobile Satellite Corporation's
    (AMSC) satellite technology for dispatch services so they can
    communicate with members of their force.[^37] AMSC has also
    installed public satellite payphones in isolated communities in
    Arizona so business owners, residents and tourists can communicate
    with urban centers. The satellite phone represents the only choice
    today for Tortilla Flat residents and passing tourists who may need
    to make an emergency phone call.[^38] Similarly, GCI Inc. provides
    voice and private line services to fifty rural Alaskan Bush
    communities through 3.6‑meter satellite earth stations. The earth
    stations employ state‑of‑the‑art satellite transmission technology
    called Demand Assigned Multiple Access (DAMA), which allows the
    users to share satellite transponder bandwidth and to use this
    bandwidth on an \"as needed\" basis. This model allows for lower
    transmission and maintenance costs due to the channels being
    assigned on demand, and therefore dedicated lines are not needed.
    Other services offered over the GCI satellite network include:
    800/888 toll free, prepaid calling card, and Internet e-mail
    services.[^39]

14. One particular satellite technology increasingly being deployed in
    developing nations for low cost-telephony is the Very Small Aperture
    Terminal (VSAT) network.[^40] A VSAT network consists of one or many
    small[^41] earth stations that can transmit data, voice, or video
    via a satellite to a PSTN, the Internet, or a private
    telecommunications network. VSAT networks eliminate the need to lay
    miles of terrestrial infrastructure and hence are especially
    cost-effective in sparsely populated areas. VSAT networks can
    support emergency, basic, and advanced telecommunication services,
    including Internet and video conferencing.[^42] STM Wireless, a VSAT
    provider, currently is using the latest VSAT technologies to
    successfully serve unserved rural, insular, and economically
    isolated areas in the United States.[^43] It offers voice telephone
    service to anywhere in the United States for 10-15 cents per minute,
    and also provides Internet and broadband services to schools.[^44]
    Several rural communities in Asia, Africa, and Latin America already
    have deployed VSAT networks primarily to provide basic telephony
    service. Titan Wireless, a VSAT provider in the Asia Pacific region,
    claims that it has developed one of the largest and cost-effective
    rural telephony networks in the world, and would like to implement
    this capability in the United States.[^45] It states that the cost
    of a rural VSAT communications terminal ranges from \$3,000 and
    \$5,000, with a typical per minute cost of 10-15 cents. [^46]

15. Satellites also represent an integral technology in linking
    international Internet service providers (\"ISPs\") to the U.S.
    Internet backbone.[^47] This service actually represents the fastest
    growing segment of the fixed satellites services industry. These
    international ISPs are often located in unserved regions of the
    world where there is no Internet backbone. Industry analysts
    estimate that the amount of traffic in this segment doubles every
    six months.[^48]

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III. DISCUSSION

A. Encouraging Existing Terrestrial Wireless and Satellite Carriers to
Extend Service to Individuals Living on Tribal Lands

16. In this section, we seek comment on possible regulatory initiatives
    to encourage wireless carriers to provide basic telephony service to
    tribal lands and other unserved areas. Specifically, we seek comment
    on the potential viability and effectiveness of the following
    approaches: (1) relaxing antenna height and transmitter power
    limitations applicable to service providers in tribal lands and
    other unserved areas; (2) establishing flexible buildout
    requirements for carriers providing telephone service to tribal
    lands and other unserved areas; (3) permitting licensees to expand
    coverage into adjacent licensing areas in order to provide full
    coverage to tribal lands and other unserved areas; (4) allowing
    licensees in certain private (non-CMRS) services to provide basic
    telephone service to tribal lands and other unserved areas; (5)
    lifting restrictions on transfer of wireless licenses awarded to
    designated entities (DEs) for carriers providing service to tribal
    lands and other unserved areas; (6) modifying regulations to promote
    the deployment of satellite technology to tribal lands and other
    unserved areas; and (7) granting of additional flexibility to
    carriers providing service to tribal lands and other unserved areas
    based on the existence of a binding agreement between the carrier
    and the affected tribe.

**1. Modifications to Height/Power Rules**

17. Transmitting power limits, together with other factors, affect the
    maximum distance from a transmitting antenna that communications may
    be reliably transmitted, and also the potential for interference
    with other systems. The purpose of these rules is to promote
    efficient spectrum usage and to reduce the likelihood of
    interference between systems, particularly in bands shared with
    other services. Although these restrictions are important, for the
    numerous tribal areas that are located in remote or sparsely
    populated areas, increasing these limits may increase the viability
    of providing basic telecommunications services to individuals on
    those lands by expanding the reach of existing systems and by
    reducing the number of transmitting facilities required to provide
    service in a certain area.[^49] As discussed below, we seek comment
    on possible modifications to our height/power limits specifically
    for Rural Radiotelephone and Basic Exchange Telephone Radio Systems
    (BETRS), given that these systems were intended primarily to serve
    rural areas. In addition, we ask whether other height/power
    modifications would encourage service to tribal lands and other
    unserved areas by providers of services, such as PCS, LMDS, MDS,
    WCS, 39 GHz services, and 24 GHz services.

> **a. Rural Radio/BETRS**

18. The Rural Radiotelephone Service (Rural Radio) was established to
    permit use of VHF and UHF spectrum to provide radio
    telecommunications services, in particular, basic telephone service,
    to subscribers in locations so remote that service to them by
    wireline or other means is infeasible.[^50] In the mid-1980s, the
    Commission authorized the establishment of BETRS in the Rural Radio
    Service.[^51] BETRS may be licensed only to local exchange carriers
    or others that have been state certified to provide basic exchange
    telephone service in the area involved.

19. Although there are thousands of existing BETRS lines in service in
    the United States, our records indicate that relatively few new
    BETRS systems are being licensed at present, in tribal lands or
    elsewhere.[^52] We seek comment on the degree to which our current
    BETRS rules limit the ability of licensees to provide basic
    telephone service to tribal lands because subscriber stations would
    normally be out of range from the nearest telephone central office.

20. We also seek comment on whether increasing the height/power limits
    applicable to BETRS could enhance their viability in tribal lands
    and other unserved areas. The current height/power limits for BETRS
    allow central office stations to serve subscriber stations typically
    located from 40 to 65 kilometers (25 to 40 miles) away. Because
    there may be subscribers on unserved lands at locations more distant
    than 40 to 65 kilometers from a telephone central office, we seek
    comment on whether to allow BETRS systems serving subscribers
    located on tribal lands and other unserved areas to use the more
    relaxed height/power limits applicable to conventional Rural Radio
    stations.[^53] This would generally allow a substantial increase in
    the downlink range of BETRS systems (depending on the intervening
    terrain).[^54] Alternatively, we seek comment on whether it would be
    reasonable simply to exempt BETRS from any height-power restriction
    where it is providing service to a tribal land or other unserved
    area. Would there be a significant interference risk involved?

> **b. Other Services**

21. We also are interested in commenters' views regarding possible
    height and power modifications for providers of other services,
    including PCS, LMDS, MDS, WCS, and services in the 39 GHz and 24 GHz
    bands, and we seek comment on how we might modify these rules to
    better facilitate the provision of service. For example, as noted
    above, some Indian tribes have themselves obtained broadband PCS
    licenses or interests in PCS systems. However, in our hearings on
    telecommunications issues affecting Indians, we have heard testimony
    that broadband PCS service on tribal lands is not currently
    practical because individuals living on tribal lands cannot afford
    the number of towers that would be required to provide coverage. To
    address this issue, it has been suggested that we allow higher
    transmitting power levels for broadband PCS service on tribal lands,
    so that fewer towers would be needed.[^55] We seek comment on this
    suggestion and ask whether any modifications we might adopt should
    also be applied to other unserved areas and other types of services.

22. In general, broadband PCS systems that provide mobile telephone
    service have been designed to operate base stations at antenna
    heights and power levels significantly below the limits provided in
    our rules.[^56] However, on tribal lands located in remote or
    sparsely populated areas, the potential may exist to extend the
    service range of PCS base stations through more widely spaced
    stations and increased antenna height. Because our PCS rules limit
    transmitter power as antenna height increases, however, this
    potential may be limited by our current rules. For this reason, we
    seek comment on whether raising or eliminating PCS antenna height
    and power limits in tribal lands and other unserved areas would make
    the deployment of PCS infrastructure to these areas more viable. We
    also seek comment on whether this approach would increase
    interference to other PCS applications or other services. Again, we
    ask commenters to address the need for such modifications to foster
    service to tribal lands for other types of services as well.

**2. Liberalized Buildout Requirements**

23. The Commission has developed a variety of rules in wireless services
    that govern the obligation of licensees to construct and operate
    their facilities to serve an area. These "buildout" rules reflect
    several basic approaches. Site-based licenses typically come with a
    requirement to construct and commence operations by a date
    certain.[^57] Some geographic area licenses for mobile services
    require that service be provided to a certain percentage of the
    population or of the geographic area encompassed by the license
    within a specified time.[^58] Other services have a requirement that
    "substantial service" be provided by a date certain.[^59] In some
    cases, such as LMDS and 39 GHz, the substantial service requirement
    is the only construction requirement for the licensees. In some
    cases, such as PCS and SMR, the substantial service requirement is
    an alternative to the specific population/land area requirements
    (*i.e.*, one-third/ two-third coverage). Generally, this alternative
    showing was adopted to provide licensees with an added degree of
    flexibility in determining the most efficient use of their spectrum.

24. While these various buildout requirements provide licensees with
    needed flexibility to determine the nature and scope of their system
    deployment, they often result in sparsely populated or remote areas
    being built out much later than urban and suburban markets, or not
    being covered at all. Because tribal lands are disproportionately in
    such remote areas, this trend has left many individuals on tribal
    lands without access to such service. As an incentive for carriers
    to address this problem, one possible approach would be to relax our
    general buildout requirements for licensees who focus their early
    buildout efforts on tribal lands and other unserved areas. For
    example, for services subject to a specific population/geographic
    coverage requirement, we could determine that the population or land
    area of a tribal land or other unserved area is subject to a
    multiplier (*e.g.*, five or 10 times actual population or actual
    land area) for purposes of meeting the requirement. For services
    subject to a substantial service requirement, we could determine
    that the provision of service to a tribal land qualifies as
    "substantial service" for purposes of meeting the requirement. We
    seek comment on these alternatives. We also encourage parties to
    suggest other modifications of our buildout rules that would
    encourage prompt delivery of service to tribal lands and other
    unserved areas.

**3. Right to Extend into Tribal Lands in Adjacent Licensing Areas**

25. In some instances, particularly in the Southwest, tribal lands
    extend into more than one licensing area, so that one licensee
    cannot provide service to the entire tribal land without extending
    its coverage into an adjacent licensing area, even if the adjacent
    licensee has not extended coverage to the portion of the tribal land
    within its licensing area. To address these situations, we seek
    comment on whether wireless licensees should be allowed to expand
    their coverage into adjacent licensing areas in order to provide
    full coverage to a tribal land, provided that such coverage does not
    cause interference to the adjacent licensee's actual operations.

26. For example, our geographic licensing rules for Specialized Mobile
    Radio (SMR) and Broadband PCS do not require 100 percent coverage of
    the licensee's market area or population.[^60] Thus, a licensee may
    not be required to provide coverage to a tribal land within its
    licensing area in order to meet its coverage requirements. If the
    licensee is not providing such service, we seek comment on whether
    we should allow a licensee in an adjacent area to extend coverage of
    its system into the tribal land, and to acquire primary licensee
    status in that area by doing so. Presumably, we would require the
    licensee that seeks to extend its coverage to construct and commence
    operations in the tribal land within a specified time frame, *e.g.*,
    two years, in order to establish primary status. We would also
    require procedural safeguards to ensure that the adjacent licensee
    had prior notice of the extension and that its system is protected
    from interference. We seek comment on this approach. We also seek
    comment on how long licensees should have to provide service to
    tribal lands within their own licensing areas before adjacent
    licensees would have the option to extend their coverage into those
    areas. In particular, we seek comment on how allowing one licensee
    to extend into another\'s territory would affect rights acquired at
    auction. Because licensees typically bid at auction for the
    exclusive right to serve their licensing areas, we seek comment on
    how to fairly balance the auction winner's interests against the
    possibility that a tribal area could receive service from an
    adjacent licensee.

27. We also seek comment on the applicability of this approach to
    services other than SMR and PCS. For example, under our cellular
    rules, areas in a cellular market not covered by the initial
    cellular carrier's cellular geographic service area (CGSA) after
    five years are available for licensing as unserved areas.[^61]
    However, during the initial five-year buildout period, cellular
    licensees may construct systems that extend into an adjacent
    cellular market only under limited circumstances, and such
    extensions require the consent of the adjacent licensee unless they
    are *de minimus*.[^62] Although most cellular markets are now
    subject to the unserved area licensing rules, we seek comment on
    whether we should allow cellular licensees to extend service into
    tribal lands in adjacent markets where the five-year period has not
    yet elapsed. Under this approach, no consent would be required from
    the adjacent market licensee unless the tribal land service area
    boundary extension overlapped that licensee's CGSA.

**4. Expansion of Permissible Service Definitions**

28. In some private wireless services, our rules preclude use of the
    spectrum for provision of commercial service, including provision of
    basic telephony to the public. Some of these services are dedicated
    to private, internal use by businesses or limited classes of
    eligible users, while others are intended for government or public
    safety use. These service categories include both fixed services,
    *e.g.*, private point-to-point microwave, and private land mobile
    radio (PLMR) services.

29. We seek comment on whether the prospects for extending wireless
    telephony to tribal lands and other unserved areas would be enhanced
    by relaxing restrictions on commercial use of spectrum in tribal
    lands and other unserved areas by some categories of private radio
    licensees. Spectrum used for some private radio services is less
    congested outside metropolitan areas, thus making these services
    viable options in our efforts to extend wireless communications to
    tribal lands and other unserved areas. Wireless telephony systems
    should, however, possess certain characteristics to serve as a
    source of reliable communications. Specifically, these systems
    should: (a) handle voice type emissions; (b) have authority for
    two-way communications; (c) have the capacity for multiple
    channels; (d) designate one person to take responsibility for the
    system; and (e) not have end-users that are licensees. We seek
    comment on what private radio services potentially meet these
    parameters.

30. In some services, the permissible use and eligibility requirements
    of private radio licensees are already very liberal and such systems
    may be readily used to facilitate commercial wireless operations.
    For instance, under Part 101, private operational-fixed microwave
    licensees may use their systems only for communications related to
    industrial, commercial, and safety operations, but it is relatively
    simple for a private carrier to convert its operations to common
    carrier communications. [^63] Many of these systems involve
    point-to-point applications that are set up in configurations
    connecting specific locations where using standard wireline or fiber
    optic applications is impractical. Thus, if economically feasible,
    such systems could provide necessary links to connect tribal lands
    and other unserved areas to the telephone network. We seek comment
    on the current use and any future use of private operational-fixed
    microwave systems that would improve the delivery of wireless
    telephony service to these areas.

31. We also seek comment on the degree to which PLMR services could be
    used to make mobile telephony or similar communications services
    available to individuals living on tribal lands and other unserved
    areas. For example, the industrial/business pool provides
    communications services for entities engaged in commercial
    activities, clergy activities, operating educational, philanthropic,
    or ecclesiastical institutions, hospitals and clinics.[^64] Most of
    these systems are used for private mobile services, however, some
    are interconnected to the public switched telephone network enabling
    them to provide CMRS, such as SMR systems.

32. PLMR service systems located below the 800 MHz band offer excellent
    propagation for power, and are relatively immune to weather
    interference and terrain inconsistencies. Additionally, the service
    would be relatively inexpensive to administer and hardware is widely
    available. In many cases, PLMR service systems are already in
    operation on reservations in the form of public safety radio (tribal
    police) or industrial radio (railroad, petroleum, and transportation
    systems) and hardware can be added to expand these systems. Despite
    these characteristics, however, the voice quality of these services
    is typically not the caliber of that provided by standard wireline
    telephone equipment.

33. While we seek comment on the possibility of allowing licensees in
    some private services to provide commercial service in tribal lands
    and other unserved areas, we are also mindful of the potential need
    to retain permissible use limitations on certain services. For
    example, public safety services utilize communications to support
    and protect the safety of life, health or property on a
    non-commercial basis. Congress has acknowledged the critical
    functions that this public safety spectrum supports and has
    committed to ensure that public safety spectrum users are
    sufficiently accommodated.[^65] Likewise, the Commission has taken
    significant steps to ensure the availability and reliability of
    public safety spectrum.[^66] Therefore, while we are open to comment
    on whether there are options regarding the use of public safety
    spectrum for commercial purposes in tribal lands and other unserved
    areas, we emphasize that we will not contemplate any alternative use
    of public safety spectrum that would compromise our public safety
    objectives and obligations.

34. We also request comment on whether the definition of service should
    be expanded to include data messaging services. For example, we may
    find that data messaging services, like e-mail, offered through
    terrestrial wireless and satellite technologies may provide valuable
    communication services for both emergency and basic communication
    needs.

**5. Modification of Designated Entity Transfer Restrictions**

35. The Commission has in place rules for the broadband PCS C and F
    blocks that prohibit "designated entities" (DEs) (entrepreneurs and
    small businesses) from transferring spectrum to non-DEs during the
    first five years of the license term.[^67] In other services, DE
    licensees who receive a benefit in the auction, such as a bidding
    credit, must pay the credit (or a portion thereof) back to the
    Commission if they transfer or assign their license to a non-DE that
    would qualify for the bidding credit.[^68] While this rule was
    created to prevent trafficking of licenses from DEs to non-DEs,[^69]
    it is likely that non-DEs will have more of the resources necessary
    to build out on tribal lands and other unserved areas, particularly
    in more remote areas.

36. Therefore, we seek comment on whether we should allow DE-to-non-DE
    transfers (or partnerships and similar arrangements between DEs and
    non-DEs) in instances where the non-DE transferee or assignee
    commits to provide service to tribal lands and other unserved areas
    (*e.g.*, evidenced by an agreement with the tribal governing body).
    Under this approach, such transactions would not be subject to
    holding requirements, repayment of bidding credits, or other unjust
    enrichment measures, provided that the non-DE fulfilled its
    commitment to provide service to the tribal land or other unserved
    areas. We seek comment on what criteria should be used to determine
    whether the non-DE had provided sufficient service. We also seek
    comment on whether DE-to-non-DE transfers should be limited to
    partitioning the portion of the DE licensee's service area that
    covers the tribal land or other unserved area, or whether DEs should
    be able to transfer the entire license to a non-DE without
    restrictions conditioned on the provision of service to the tribal
    land or other unserved area. In the latter case, one alternative
    would be to reduce the unjust enrichment payment on a pro rated
    basis to reflect the portion of the licensing area or population
    that is encompassed by the tribal land or unserved areas. We seek
    comment on these alternatives.

**6. Satellite Policies for Existing Satellite Licensees**

37. The Commission has granted several licenses for satellite services
    that are or can potentially be used to deliver emergency, basic, and
    advanced telecommunication services to tribal lands. In 1998, the
    Commission granted several licenses authorizing the world\'s first
    Little Low Earth Orbit (Little LEOs) satellite systems, which are
    capable of providing non-voice, data messaging services (*e.g.*,
    paging, e-mail, remote meter reading).[^70] Between 1995 and 1997,
    the Commission granted four licenses authorizing the world\'s first
    Big Low Earth Orbit (Big LEOs) satellite systems, which provide a
    variety of mobile voice and data communication services. [^71] Both
    Big LEO and Little LEO services are capable of providing
    telecommunication services by satellite to tribal lands and other
    unserved areas that have not been linked to the telecommunications
    infrastructure.

38. In 1997, the Commission licensed 14 satellite systems at the
    Ka-band.[^72] These systems are expected to provide super high-speed
    data and Internet services throughout America. The Commission also
    issued a license in 1989 to AMSC to construct, launch, and operate a
    mobile satellite system to provide a variety of domestic voice and
    data mobile satellite services. As discussed in Section II above,
    AMSC has provided dispatch services to a police force in the Navajo
    Nation.

39. We seek comment on the effectiveness of satellite technologies as a
    means of deploying communications services to tribal lands and other
    unserved areas. We seek comment on any satellite policies that we
    can adopt, or regulations that we should eliminate or streamline, to
    promote the deployment of satellite services in tribal lands and
    other unserved areas. For example, given that VSAT technology may
    represent a promising solution for the provision of low-cost
    telephony to individuals living on tribal lands and in other
    unserved areas, we ask for comment on any regulatory barriers that
    currently deter the implementation of VSAT networks in the United
    States, and what type of policy incentives can be enacted to further
    the development of VSAT networks for deployment on tribal lands and
    other unserved areas. For example, Titan Wireless, a VSAT provider
    in the Asia-Pacific region, identifies problems with respect to
    interconnection with the PSTN, coordination of space segment
    frequency and expeditious licensing of earth stations, and
    availability of extended C-band frequencies to make it easier for
    VSAT operators to provide service in these unserved areas.[^73] We
    seek comment on whether, and to what degree, these specific concerns
    may hinder the growth of VSAT services or other satellite
    technologies in tribal lands as well as any other problem areas.
    Finally, we seek comment on what policies the Commission can adopt
    to address these specific concerns.

    7\. Conditioning the Grant of Additional Flexibility on the
    Existence of a Binding Agreement between the Licensee and the
    Affected Tribe

40. As discussed in Sections III.A.1 through III.A.6 above, we believe
    it is important to explore whether we should look more favorably
    upon requests filed by licensees seeking additional flexibility if
    granting the request would create incentives for the extension of
    wireless or satellite service to tribal lands or other unserved
    areas. We believe it is important, however, to ensure that wireless
    carriers actually provide service to tribal lands or other unserved
    areas in exchange for such flexibility. We therefore seek comment on
    whether the grant of additional flexibility to wireless or satellite
    licensees in response to a request should be conditioned on the
    existence of a binding agreement between the licensee and relevant
    tribal authority in the case of tribal lands, or a binding agreement
    between the licensee and another authority in the case of other
    unserved areas.

41. As discussed in Section I above and in the *Universal Service
    Further Notice*,[^74] the federal government has a special
    relationship with Indian tribes, as set forth in the Constitution of
    the United States, treaties, statutes, Executive Orders and court
    decisions. The United States recognizes the unique sovereign status
    of Indian tribes, the special trust relationship between the federal
    government and Indian tribes, and the federal obligation to
    guarantee the right of Indian tribes to self-government. With
    respect to wireless telecommunications, tribal authorities have the
    right to control the placement of wireless facilities on tribal
    lands. [^75] Thus, as a practical matter, wireless carriers are
    unlikely to be able to provide service to tribal lands without
    obtaining the consent of tribal authorities to operate on
    reservation lands.

42. Consistent with these principles, we believe licensees that seek
    additional flexibility pursuant to a request in order to provide
    service to tribal lands should be able to demonstrate that they have
    the intent and the ability to provide such service, including the
    existence of any consent, contract, or other agreement with the
    tribal authority that is necessary to do so. To ensure that
    licensees meet this standard, we seek comment on whether licensees
    should be required to certify to or provide evidence of a binding
    agreement between the licensee and relevant tribal authority that
    will allow the provision of service in the tribal land. Moreover, in
    the case of service to unserved areas other than tribal lands, we
    seek comment on whether licensees should be required to certify to
    or provide evidence of a binding agreement between the licensee and
    a relevant authority that will allow the provision of service in the
    unserved area and, if so, who that relevant authority should be. We
    also seek comment on whether the grant of flexibility in response to
    a request should be conditioned on compliance with such agreements.
    Commenters should address whether such a requirement would impose
    significant additional burdens on licensees seeking to provide
    service to tribal lands or other unserved areas, and how such a
    requirement, if adopted, should be implemented. For example, if the
    right of a licensee to obtain additional flexibility or forbearance
    is conditioned upon the consent of a tribal or other authority, what
    recourse would a licensee have if the authority withdraws consent?
    In addition, should applications for Commission approval of
    transfers and assignments that affect service provided pursuant to a
    licensee agreement also require evidence of the consent of tribal or
    other authorities?

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B.  Licensing of New Terrestrial Wireless and Satellite Entrants to
    Provide Service on Tribal Lands

    1\. Unallocated or Unlicensed Spectrum Bands That Could Serve the
    Needs of Individuals Living on Tribal Lands

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43. We seek comment on whether there are frequency bands that are not
    currently allocated for telecommunications service that could
    potentially be used to provide basic telephone service on tribal
    lands and other unserved areas. We also seek comment on whether
    there are frequency bands that are allocated for telecommunications
    service but not assigned to any licensee that could potentially be
    used to provide basic telephone service on tribal lands and other
    unserved areas. For example, there has been significant recent
    expansion in the provision of telephone service to remote areas
    throughout the world by means of WLL and other fixed wireless
    technologies. The demand for WLL, combined with advances in
    technology, has brought the per-line cost of fixed wireless
    equipment down significantly.[^76] In other parts of the world, WLL
    is provided by cordless technologies such as Digital Enhanced
    Cordless Telephone (DECT) and Personal Handyphone System (PHS), as
    well as mobile technologies such as GSM, TDMA, and CDMA. We seek
    comment on whether there are unlicensed or unallocated bands on
    which these or similar technologies could be used to facilitate
    efforts to provide low-cost service in unserved communities such as
    tribal lands.

**2. Licensing in Spectrum Bands Allocated to Other Services**

44. In addition to unallocated or unlicensed spectrum, we seek comment
    on whether there are unused channels in otherwise allocated and
    licensed spectrum that may be available to provide telephone service
    to tribal lands and other unserved areas. Because of the remote
    location of many tribal lands and other unserved areas, such
    spectrum could be available even if it is licensed for other
    purposes in major markets and other higher-density areas.

45. To the extent that unused channels are available in tribal lands and
    other unserved areas, a potential alternative to facilitate service
    would be to allow Indian tribes or parties with tribal consent to
    apply for "drop-in" licenses in the relevant spectrum that would
    enable them to provide coverage to the tribal land. We seek comment
    on the feasibility of this approach, and on whether there are
    conditions under which drop-in licensees could obtain primary status
    in the tribal land (and thus be entitled to rights of
    non-interference). For example, could a drop-in license initially be
    granted on a secondary basis with the right to convert to a primary
    license if construction and commencement of service in a tribal land
    occurs within a specified time period and if service does not cause
    interference for existing licensees in adjacent geographic areas or
    on adjacent frequencies? How long should that time period be? If
    drop-in licensees are not given the opportunity to convert to
    primary licensee status at a future date, are there still adequate
    incentives for carriers to become "drop-in" licensees?

46. We also seek comment on whether existing licensees in adjacent
    geographic areas or on adjacent frequencies should have the ability
    to match the proposal of the drop-in applicant before the decision
    to grant the drop-in license is made. If the Commission receives
    matching proposals, how should the Commission resolve the issue of
    mutual exclusivity? For example, should the Commission use auctions
    to resolve this issue? In addition, if tribal consent is required
    for approval of a drop-in application,[^77] should the tribal
    entities be required to give existing licensees the right of first
    refusal before entering into an agreement with a third party drop-in
    applicant?

    3\. Drawing Geographic Boundaries for Spectrum Licenses That
    Recognize the Service Needs of Individuals Living on Tribal Lands

47. In determining what type of geographic area license is most
    appropriate for particular wireless services, we have considered
    such factors as the nature of the service (*e.g.*, technological
    constraints), the presence of natural markets, cost of build-out,
    and the range of services that can be offered in the most rapid and
    efficient manner.[^78] This has led to a variety of different
    license areas being used (*e.g.*, Basic Trading Areas (BTAs), Major
    Trading Areas (MTAs), Metropolitan Statistical Areas (MSAs),
    Economic Areas (EAs)). In some instances, these licensing areas do
    not match well with the distribution of tribal lands throughout the
    country, and some of the larger tribal lands in the American
    Southwest overlap more than one licensing area.

48. To avoid this issue in establishing licensing rules for future
    services, we believe it is important to consider the presence and
    distribution of tribal lands as a factor when establishing the
    appropriate license area definitions. All else being equal, we
    consider it preferable to draw geographic boundaries for spectrum
    licenses that will not splinter natural groupings of tribal lands
    and that will promote service to entire reservations. We seek
    comment on how best to accomplish this. Are there particular
    licensing area definitions that we have used in the past that are
    more or less compatible with these goals? In the case of the larger
    Southwestern tribal lands, should we consider developing licensing
    areas that are specifically tailored to tribal land boundaries? To
    what extent is it economically beneficial to combine tribal land and
    non-tribal land communities within licensing areas? In the
    Southwest, where there are several large tribal lands, nearly every
    licensing scheme splinters a reservation. We seek comment on whether
    we should carve out special licensing areas for tribal lands.

**4. Technical/Operational Rules for New Services**

49. We seek comment generally on how our technical and operational rules
    for new services should be structured to ensure that they encourage
    rather than discourage licensees to provide service in sparsely
    populated areas such as tribal lands. In general, the technical and
    operational rules that we have adopted for recently-established
    wireless services (Parts 24, 26, and 27) allow licensees wide
    latitude in determining how to utilize their assigned spectrum, and
    impose only minimal technical and operational requirements.
    Nevertheless, we seek comment on how to ensure that our technical
    and operational rules are not unduly oriented to the provision of
    telecommunications services in densely populated areas as opposed to
    areas where tribal lands and other unserved areas are located. For
    example, to the extent that technical rules are designed to produce
    efficient spectrum usage by encouraging licensees to employ a
    cellular architecture with extensive frequency reuse, these limits
    may also prevent wide area coverage with fewer towers in less
    populated areas.

**5. Auction Bidding Credits for Provision of Service on Tribal Lands**

50. The Commission has instituted the use of bidding credits as a means
    to ensure that DEs have the opportunity to participate successfully
    in spectrum auctions.[^79] Our Part 1 rules contain a schedule of
    bidding credits that are associated with different definitions of
    "small business."[^80] Bidding credits allow smaller entities to
    obtain a discount on their final high bid amount, and as a result
    numerous small businesses have won licenses in a variety of
    auctions.

51. Although our use of bidding credits has previously been limited to
    small businesses that meet our DE eligibility criteria, bidding
    credits could also potentially be tied to the deployment of service
    to tribal lands and other unserved areas as incentive for auction
    winners to invest in such service. We therefore seek comment on the
    possibility of awarding a bidding credit to bidders (whether DEs or
    non-DEs) who indicate that they intend to provide service to tribal
    lands and other unserved areas located within markets for which they
    are the winning bidder. We also seek comment on the appropriate
    credit amount, which would presumably be cumulative with any small
    business bidding credits if the bidder met the small business
    qualifications as well. For example, the bidding credit could be
    based on the pro-rata share of the unserved area population as
    compared to the population of the entire service area (*e.g.*, if
    the population of the unserved area is 20 percent of the total
    service area population, the bidding credit would be 20 percent).
    Alternatively, the credit could be a flat percentage of the bid
    amount, or it could be commensurate with the
    property/plant/equipment costs for the reservation.

52. Regardless of the credit amount, we believe that any bidding credit
    that is tied to providing service in a tribal land or other unserved
    area should require a binding commitment by the winning bidder to
    spend the credit amount on property, plant, and equipment for the
    tribal land or unserved area, or otherwise to ensure that service is
    provided. Although eligibility for bidding credits is normally
    determined at the short form stage, we seek comment on whether a
    bidding credit conditioned on future investment in a tribal land or
    unserved area should be applied for and awarded at the long form
    stage, when the winning bidder has identified the markets for which
    it will receive licenses. We also seek comment on whether winning
    bidders should be required to submit proof of a tribal agreement
    and/or proof of financial and technical arrangements as a condition
    for obtaining the credit.

53. We also seek comment on what steps should be taken to ensure that
    the licensee has met the conditions that attach to the bidding
    credit. We ask whether requiring the licensee to certify that it is
    in compliance is a sufficient enforcement mechanism. Finally, we
    seek comment on the consequences to the licensee if it fails to
    satisfy the required conditions. Presumably, if a winning bidder
    fails to provide service, or at least to make the required
    expenditures, within a specified period, the credit would have to be
    repaid, with interest, and could also be subject to unjust
    enrichment payments by the licensee. This approach is analogous to
    the unjust enrichment rules we have promulgated for various services
    in the past and have made a part of Part 1 of the Commission's
    rules.[^81]

**6. Satellite Licensing Policies**

54. We seek comment on how we can use our licensing authority to
    encourage the provision of satellite-based telecommunication
    services to tribal lands and other unserved areas. Thus, we request
    comment on any licensing incentives or other policies that the
    Commission could adopt to promote the deployment of cost-effective
    satellite service for use in tribal lands and other unserved areas.
    For example, in future spectrum assignments, should the Commission
    assign more spectrum within a particular band to companies that
    commit to serving tribal lands and other unserved areas? Are there
    other specific licensing mechanisms the Commission could implement
    to promote service to tribal lands and other unserved areas?

55. In the pending 2 GHz proceeding, we sought comment on incentives and
    policies to encourage deployment of 2 GHz mobile satellite services
    (MSS) to unserved, rural, insular or economically isolated areas,
    including tribal lands.[^82] For example, we sought comment on
    whether one criterion for resolution of expansion band coordination
    disputes should be whether a licensee is providing service to
    unserved areas,[^83] or whether licensees should be granted
    extension of system implementation milestones if they provide
    service to unserved communities.[^84] Every party commenting on the
    provision of 2 GHz MSS in these areas states that its satellite
    technology represents an excellent means for providing basic and
    advanced telecommunications services to unserved areas, including
    tribal lands.[^85] The majority of commenters, however, generally
    oppose adopting regulatory incentives for providing service to
    unserved areas.[^86] Many commenters believe that the Commission's
    geographic coverage requirements and multiple licensing schemes
    already create market-based incentives for providing service to
    unserved and rural areas.[^87] By contrast, Celsat urges the
    Commission to adopt its proposed incentives for service to unserved
    areas, including tribal lands[^88] and claims that it will able to
    provide service to these communities for as little as eight cents
    per minute, including long distance.[^89]

56. We seek further comment on whether, and if so, how and to what
    degree the Commission's geographic coverage requirements and
    multiple licensing scheme already create market-based incentives for
    providing service to unserved communities, including tribal lands.
    Will these suggested incentives, by themselves, help assure that
    tribal lands or unserved areas can gain access to satellite
    services? For example, while the footprint of a satellite operator
    may indeed cover a tribal land or unserved area, how does this fact
    address the potential economic barrier of individuals living on
    tribal lands not being able to afford the service without any
    special discounts or subsidies? Some commenters further argue that
    it is more appropriate to gear any incentives toward earth station
    or handset licensees which, as CMRS operators, must offer their
    service on a non-discriminatory common-carrier basis.[^90] One
    commenter argues that such incentives would penalize space segment
    operators for marketing decisions of CMRS operators over which it
    has no control,[^91] while another counters that satellite system
    operators decide the price of service before designing their
    systems. [^92] We seek further comment on these assertions. We ask
    for comment on what policies or incentives could most effectively
    encourage both satellite operators and earth station and handset
    licensees to serve and deliver affordable service to tribal lands
    and other unserved areas.

57. We seek further comment on whether any proposed policies or
    incentives would have any effects on spectrum efficiency,
    competition, or other licensing considerations. For example, in the
    2 GHz MSS proceeding, several commenters claim that a policy
    regarding access to expansion spectrum could result in inefficient
    use of the spectrum or distort market conditions.[^93]

58. The International Bureau recently initiated an effort to streamline
    the licensing of satellite earth stations.[^94] In the future, the
    International Bureau expects to recommend a rulemaking that will
    propose comprehensive rule changes that will further streamline the
    earth station licensing process. We encourage parties in this
    proceeding to monitor that process, and comment on any earth station
    rule changes that might encourage the deployment of
    telecommunication services to tribal lands and other unserved areas.

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IV. PROCEDURAL MATTERS

A. *Ex Parte* Rules \-- Permit-But-Disclose Proceeding

59. This proceeding is a permit-but-disclose notice and comment
    rulemaking proceeding. *Ex parte* presentations are permitted,
    except during the Sunshine Agenda period, provided they are
    disclosed as provided in Commission rules. *See generally* 47 C.F.R.
    §§ 1.1202, 1.1203, and 1.1206.

B. Initial Regulatory Flexibility Analysis

60. As required by the Regulatory Flexibility Act, *see* 5 U.S.C. § 603,
    the Commission has prepared an Initial Regulatory Flexibility
    Analysis (\"IRFA\") of the possible impact on small entities of the
    proposals suggested in this Notice*.* The IRFA is set forth in the
    Appendix. Written public comments are requested on the IRFA. These
    comments must be filed in accordance with the same filing deadlines
    as comments on the Notice, as set forth in Section IV.D *infra*, and
    they must have a separate and distinct heading designating them as
    responses to the IRFA. The Commission\'s Office of Public Affairs,
    Reference Operations Division, will send a copy of this Notice,
    including the IRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration, in accordance with the Regulatory
    Flexibility Act, *see* 5 U.S.C. § 603(a).

C. Initial Paperwork Reduction Act of 1995 Analysis

61. This Notice contains neither a new nor a modified information
    collection.

D. Comment Dates

62. Pursuant to Sections 1.415 and 1.419 of the Commission\'s Rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments on or
    before the date that is 60 days after publication of this Notice in
    the Federal Register, and reply comments on or before the date that
    is 90 days after publication of this Notice in the Federal Register.
    Comments may be filed using the Commission\'s Electronic Comment
    Filing System (ECFS) or by filing paper copies. *See Electronic
    Filing of Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24121
    (1998).

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

64. Parties who choose to file by paper must file an original and four
    copies of each filing. If participants would like each Commissioner
    to receive a personal copy of their comments, an original plus nine
    copies must be filed. If more than one docket or rulemaking number
    appears in the caption of this proceeding, commenters must submit
    two additional copies for each additional docket or rulemaking
    number. All filings must be sent to the Commission\'s Secretary,
    Magalie Roman Salas, Office of the Secretary, Federal Communications
    Commission, The Portals, 445 Twelfth Street, S.W., Room TW‑A325,
    Washington, D.C. 20554.

65. All relevant and timely comments will be considered by the
    Commission before final action is taken in this proceeding. Comments
    and reply comments will be available for public inspection during
    regular business hours in the FCC Reference Center, The Portals, 445
    Twelfth Street, S.W., Room CY-A257, Washington, D.C. 20554.

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V.  ORDERING CLAUSES

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66. Accordingly, IT IS ORDERED THAT, pursuant to Sections 4(i), 303(r),
    and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 303(r), and 309(j), this Notice of Proposed Rulemaking is
    hereby ADOPTED.

67. IT IS FURTHER ORDERED that the Office of Public Affairs, Reference
    Operations Division, SHALL SEND a copy of this Notice of Proposed
    Rulemaking, including the Initial Regulatory Flexibility Analysis,
    to the Chief Counsel for Advocacy of the Small Business
    Administration.

> FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX**

INITIAL REGULATORY FLEXIBILITY ANALYSIS

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7As required by the Regulatory Flexibility
    Act (RFA),[^95] the Commission has prepared this Initial Regulatory
    Flexibility Analysis (IRFA) of the possible significant economic
    impact on small entities of the policies and rules proposed in this
    Notice of Proposed Rulemaking. Written public comments are requested
    on this IRFA. These comments must be filed in accordance with the
    same filing deadlines for comments on the rest of this Notice of
    Proposed Rulemaking, as set forth in Section IV.D above, and they
    must have a separate and distinct heading designating them as
    responses to the IRFA. The Commission\'s Office of Public Affairs,
    Reference Operations Division, will send a copy of this Notice of
    Proposed Rulemaking, including the IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration, in accordance with
    the RFA.[^96] In addition, this Notice of Proposed Rulemaking,
    including the IRFA (or summaries thereof), will be published in the
    Federal Register.[^97]

**I. Need for and Objectives of the Proposed Rules**

1.  We are issuing this Notice of Proposed Rulemaking to seek comment on
    potential terrestrial wireless and satellite policy initiatives to
    address the telecommunications needs of consumers living on tribal
    lands. As stated above, the Telecommunications Act of 1996
    instructed the Commission to help ensure that all Americans have
    access to affordable telecommunications services. Consistent with
    that mandate, we seek to secure for consumers living on tribal lands
    the same opportunities to take advantage of telecommunications
    capabilities that other Americans have. In addition, we seek comment
    on whether to extend these initiatives to consumers in other
    unserved areas.

2.  Specifically, this Notice of Proposed Rulemaking seeks comment on
    the following potential initiatives for encouraging existing
    wireless licensees to provide telecommunications service to tribal
    lands and other unserved areas: (1) relaxing antenna height and
    transmitter power limitations applicable to service providers in
    tribal lands and other unserved areas; (2) establishing flexible
    buildout requirements for carriers providing telephone service to
    tribal lands and other unserved areas; (3) permitting licensees to
    expand coverage into adjacent licensing areas in order to provide
    full coverage to tribal lands and other unserved areas; (4) allowing
    licensees in certain private (non-CMRS) services to provide basic
    telephone service to tribal lands and other unserved areas; (5)
    lifting restrictions on transfer of wireless licenses awarded to
    designated entities (DEs) for carriers providing service to tribal
    lands and other unserved areas; (6) modifying regulations to promote
    the deployment of satellite technology to tribal lands and other
    unserved areas; and (7) granting of additional flexibility to
    carriers providing service to tribal lands and other unserved areas
    based on the existence of a binding agreement between the carrier
    and the affected tribe.

3.  In addition, this Notice of Proposed Rulemaking seeks comment on the
    following ways to encourage service to tribal lands/unserved areas
    in the Commission's development and licensing of new services: (1)
    identifying frequency bands that are not currently allocated for
    telecommunications service that could potentially be used to provide
    basic telephone service on tribal lands/unserved areas; (2) allowing
    "drop-in" licensing of unassigned or unused channels in otherwise
    allocated and licensed spectrum to provide service to tribal
    lands/unserved areas; (3) establishing licensing area boundaries for
    new services that will not splinter tribal lands among multiple
    licensees; (4) adopting technical and operational rules that
    encourage development of low-cost technology in new services
    suitable for providing service in sparsely populated areas such as
    tribal lands; (5) in future auctions, awarding bidding credits to
    auction winners (regardless of designated entity status) who commit
    to provide service to tribal lands/unserved areas in their markets;
    and (6) using our licensing authority to encourage the provision of
    satellite-based telecommunication services to tribal lands and other
    unserved areas.

**II. Legal Basis**

4.  The potential actions on which comment is sought in this Notice of
    Proposed Rulemaking would be authorized under sections 4(i), 303(r),
    and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 303(r), and 309(j).

**III. Description and Estimate of the Number of Small Entities to which
the Proposed Rules Will Apply**

5.  The RFA directs agencies to provide a description of and, where
    feasible, an estimate of the number of small entities that may be
    affected by the proposed rules, if adopted.[^98] The RFA generally
    defines the term \"small entity\" as having the same meaning as the
    terms \"small business,\" \"small organization,\" and \"small
    governmental jurisdiction.\"[^99] In addition, the term \"small
    business\" has the same meaning as the term \"small business
    concern\" under the Small Business Act.[^100] A small business
    concern is one that: (1) is independently owned and operated; (2) is
    not dominant in its field of operation; and (3) satisfies any
    additional criteria established by the Small Business Administration
    (SBA).[^101] A small organization is generally \"any not-for-profit
    enterprise which is independently owned and operated and is not
    dominant in its field.\"[^102] Nationwide, as of 1992, there were
    approximately 275,801 small organizations.[^103] And finally,
    \"Small governmental jurisdiction\" generally means \"governments of
    cities, counties, towns, townships, villages, school districts, or
    special districts, with a population of less than 50,000.\"[^104] As
    of 1992, there were approximately 85,006 such jurisdictions in the
    United States.[^105] This number includes 38,978 counties, cities,
    and towns; of these, 37,566, or 96 percent, have populations of
    fewer than 50,000.[^106] The Census Bureau estimates that this ratio
    is approximately accurate for all governmental entities. Thus, of
    the 85,006 governmental entities, we estimate that 81,600 (91
    percent) are small entities.

6.  Below, we further describe and estimate the number of small business
    concerns that may be affected by the proposed rules, if adopted,
    including wireless and satellite service providers. To assist the
    Commission in analyzing the total number of potentially affected
    small entities, commenters are requested to provide estimates of the
    number of small entities that may be affected by any rule changes
    resulting from this Notice of Proposed Rulemaking.

    **A. Wireless (Radiotelephone) Providers**

7.  SBA has developed a definition of small entities for radiotelephone
    (wireless) companies. The Census Bureau reports that there were
    1,176 such companies in operation for at least one year at the end
    of 1992.[^107] According to SBA\'s definition, a small business
    radiotelephone company is one employing no more than 1,500
    persons.[^108] The Census Bureau also reported that 1,164 of those
    radiotelephone companies had fewer than 1,000 employees. Thus, even
    if all of the remaining 12 companies had more than 1,500 employees,
    there would still be 1,164 radiotelephone companies that might
    qualify as small entities if they are independently owned and
    operated. Although it seems certain that some of these carriers are
    not independently owned and operated, we are unable at this time to
    estimate with greater precision the number of radiotelephone
    carriers and service providers that would qualify as small business
    concerns under SBA\'s definition. Consequently, we estimate that
    there are fewer than 1,164 small entity radiotelephone companies
    that may be affected by the policies and rules proposed in this
    Notice of Proposed Rulemaking. We next attempt to refine further
    this estimate to correspond with the categories of wireless
    (radiotelephone) companies that are commonly used under our rules.

8.  *Cellular, PCS, SMR and Other Mobile Service Providers.* In an
    effort to further refine our calculation of the number of
    radiotelephone companies that may be affected by the policies and
    rules proposed herein, if adopted, we consider the data that we
    collect annually in connection with the TRS for the subcategories
    Wireless Telephony (which includes Cellular, PCS, and SMR) and Other
    Mobile Service Providers. Neither the Commission nor the SBA has
    developed a definition of small entities specifically applicable to
    these broad subcategories, so we will utilize the closest applicable
    definition under SBA rules \-- which, for both categories, is for
    radiotelephone (wireless) companies.[^109] To the extent that the
    Commission has adopted definitions for small entities providing PCS
    and SMR services, we discuss those definitions below. According to
    our most recent TRS data, 732 companies reported that they are
    engaged in the provision of Wireless Telephony services and 23
    companies reported that they are engaged in the provision of Other
    Mobile Services.[^110] Although it seems certain that some of these
    carriers are not independently owned and operated, or have more than
    1,500 employees, we are unable at this time to estimate with greater
    precision the number of Wireless Telephony Providers and Other
    Mobile Service Providers, except as described below, that would
    qualify as small business concerns under SBA\'s definition.
    Consequently, we estimate that there are fewer than 732 small entity
    Wireless Telephony Providers and fewer than 23 small entity Other
    Mobile Service Providers that might be affected by the policies and
    rules proposed in this Notice of Proposed Rulemaking.

9.  *Broadband PCS Licensees.* The broadband PCS spectrum is divided
    into six frequency blocks designated A through F, and the Commission
    has held auctions for each block. The Commission defined \"small
    entity\" for Blocks C and F as an entity that has average gross
    revenues of less than \$40 million in the three previous calendar
    years.[^111] For Block F, an additional classification for \"very
    small business\" was added, and is defined as an entity that,
    together with its affiliates, has average gross revenues of not more
    than \$15 million for the preceding three calendar years.[^112]
    These regulations defining \"small entity\" in the context of
    broadband PCS auctions have been approved by SBA.[^113] No small
    businesses within the SBA-approved definition bid successfully for
    licenses in Blocks A and B. There were 90 winning bidders that
    qualified as small entities in the Block C auctions. A total of 93
    small and very small business bidders won approximately 40% of the
    1,479 licenses for Blocks D, E, and F. However, licenses for Blocks
    C through F have not been awarded fully, therefore there are few, if
    any, small businesses currently providing PCS services. Based on
    this information, we estimate that the number of small broadband PCS
    licenses will include the 90 winning C Block bidders and the 93
    qualifying bidders in the D, E, and F blocks, for a total of 183
    small PCS providers as defined by SBA and the Commissioner\'s
    auction rules.

10. *SMR Licensees.* Pursuant to 47 C.F.R. § 90.814(b)(1), the
    Commission has defined \"small entity\" in auctions for geographic
    area 800 MHz and 900 MHz SMR licenses as a firm that had average
    annual gross revenues of less than \$15 million in the three
    previous calendar years. The definition of a \"small entity\" in the
    context of 800 MHz SMR has been approved by the SBA,[^114] and
    approval for the 900 MHz SMR definition has been sought. The
    proposed rules may apply to SMR providers in the 800 MHz and 900 MHz
    bands that either hold geographic area licenses or have obtained
    extended implementation authorizations. We do not know how many
    firms provide 800 MHz or 900 MHz geographic area SMR service
    pursuant to extended implementation authorizations, nor how many of
    these providers have annual revenues of less than \$15 million.
    Consequently, we estimate, for purposes of this IRFA, that all of
    the extended implementation authorizations may be held by small
    entities, some of which may be affected by the policies and rules
    proposed in this Notice of Proposed Rulemaking.

11. The Commission recently held auctions for geographic area licenses
    in the 900 MHz SMR band. There were 60 winning bidders who qualified
    as small entities in the 900 MHz auction. Based on this information,
    we estimate that the number of geographic area SMR licensees that
    may be affected by the policies and rules proposed in this Notice of
    Proposed Rulemaking includes these 60 small entities. No auctions
    have been held for 800 MHz geographic area SMR licenses. Therefore,
    no small entities currently hold these licenses. A total of 525
    licenses will be awarded for the upper 200 channels in the 800 MHz
    geographic area SMR auction. The Commission, however, has not yet
    determined how many licenses will be awarded for the lower 230
    channels in the 800 MHz geographic area SMR auction. There is no
    basis, moreover, on which to estimate how many small entities will
    win these licenses. Given that nearly all radiotelephone companies
    have fewer than 1,000 employees and that no reliable estimate of the
    number of prospective 800 MHz licensees can be made, we estimate,
    for purposes of this IRFA, that all of the licenses may be awarded
    to small entities, some of which may be affected by the policies and
    rules proposed in this Notice of Proposed Rulemaking.

12. *220 MHz Radio Service \-- Phase I Licensees*. The 220 MHz service
    has both Phase I and Phase II licenses. There are approximately
    1,515 such non‑nationwide licensees and four nationwide licensees
    currently authorized to operate in the 220 MHz band. The Commission
    has not developed a definition of small entities specifically
    applicable to such incumbent 220 MHZ Phase I licensees. To estimate
    the number of such licensees that are small businesses, we apply the
    definition under the SBA rules applicable to Radiotelephone
    Communications companies.[^115] According to the Bureau of the
    Census, only 12 radiotelephone firms out of a total of 1,178 such
    firms which operated during 1992 had 1,000 or more employees.[^116]
    Therefore, if this general ratio continues to 1999 in the context of
    Phase I 220 MHz licensees, we estimate that nearly all such
    licensees are small businesses under the SBA\'s definition.

13. *220 MHz Radio* S*ervice \-- Phase II Licensees*. The Phase II 220
    MHz service is a new service, and is subject to spectrum auctions.
    In the 220 MHz *Third Report and Order* we adopted criteria for
    defining small businesses and very small businesses for purposes of
    determining their eligibility for special provisions such as bidding
    credits and installment payments.[^117] We have defined a small
    business as an entity that, together with its affiliates and
    controlling principals, has average gross revenues not exceeding
    \$15 million for the preceding three years. Additionally, a very
    small business is defined as an entity that, together with its
    affiliates and controlling principals, has average gross revenues
    that are not more than three million dollars for the preceding three
    years.[^118] An auction of Phase II licenses commenced on September
    15, 1998, and closed on October 22, 1998.[^119] 908 licenses were
    auctioned in three different‑sized geographic areas: three
    nationwide licenses, 30 Regional Economic Area Group Licenses, and
    875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693
    were sold. Companies claiming small business status won: one of the
    Nationwide licenses, 67% of the Regional licenses, and 54% of the EA
    licenses. As of January 22, 1999, the Commission announced that it
    was prepared to grant 654 of the Phase II licenses won at
    auction.[^120] A reauction of the remaining, unsold licenses was
    completed on June 30, 1999, with 16 bidders winning 222 of the Phase
    II licenses.[^121] As a result, we estimate that 16 or fewer of
    these final winning bidders are small or very small businesses.

14. *Paging Licensees*. On June 7, 1999, the Wireless Telecommunications
    Bureau announced the first in a series of auctions of paging
    licenses, the first to commence on December 7, 1999.[^122] The
    Bureau has proposed that the first auction be composed of 2,499
    licenses.[^123] The Commission utilizes a two-tiered definition of
    small businesses in the context of auctioning licenses in the Common
    Carrier Paging and exclusive Private Carrier Paging services.[^124]
    A small business is defined as either (1) an entity that, together
    with its affiliates and controlling principals, has average gross
    revenues for the three preceding years of not more than \$3 million,
    or (2) an entity that, together with affiliates and controlling
    principals, has average gross revenues for the three preceding
    calendar years of not more than \$15 million. The SBA has approved
    this definition.[^125] At present, there are approximately 24,000
    Private Paging licenses and 74,000 Common Carrier Paging licenses.
    In addition, according to the most recent *Carrier Locator* data,
    137 carriers reported that they were engaged in the provision of
    either paging or messaging services, which are placed together in
    the data.[^126] Because the auction has yet to occur, we do not have
    data specifying the number of winning bidders that will meet the
    above small business definition. Also, we will assume that there
    currently are 137 or fewer small business paging carriers.

15. *Narrowband PCS Licensees*. The Commission has auctioned nationwide
    and regional licenses for narrowband PCS. There are 11 nationwide
    and 30 regional licensees for narrowband PCS. The Commission does
    not have sufficient information to determine whether any of these
    licensees are small businesses within the SBA-approved definition
    for radiotelephone companies. At present, there have been no
    auctions held for the major trading area (MTA) and basic trading
    area (BTA) narrowband PCS licenses. The Commission anticipates a
    total of 561 MTA licenses and 2,958 BTA licenses will be awarded by
    auction. Such auctions have not yet been scheduled, however. Given
    that nearly all radiotelephone companies have no more than 1,500
    employees and that no reliable estimate of the number of prospective
    MTA and BTA narrowband licensees can be made, we assume, for
    purposes of this IRFA, that all of the licenses will be awarded to
    small entities, as that term is defined by the SBA.

16. *Rural Radiotelephone Service*. The Commission has not adopted a
    definition of small entity specific to the Rural Radiotelephone
    Service.[^127] A significant subset of the Rural Radiotelephone
    Service is the Basic Exchange Telephone Radio Systems (BETRS).[^128]
    We will use the SBA\'s definition applicable to radiotelephone
    companies, *i.e.*, an entity employing no more than 1,500
    persons.[^129] There are approximately 1,000 licensees in the Rural
    Radiotelephone Service, and we estimate that almost all of them
    qualify as small entities under the SBA\'s definition.

17. *Air-Ground Radiotelephone Service*. The Commission has not adopted
    a definition of small entity specific to the Air-Ground
    Radiotelephone Service.[^130] Accordingly, we will use the SBA\'s
    definition applicable to radiotelephone companies, *i.e.*, an entity
    employing no more than 1,500 persons.[^131] There are approximately
    100 licensees in the Air-Ground Radiotelephone Service, and we
    estimate that almost all of them qualify as small entities under the
    SBA definition.

18. *Private Land Mobile Radio (PLMR)*. PLMR systems, also known as
    Private Mobile Radio Service (PMRS) systems, serve an essential role
    in a range of industrial, business, land transportation, and public
    safety activities.[^132] These radios are used by companies of all
    sizes operating in all U.S. business categories. The Commission has
    not developed a definition of small entity specifically applicable
    to PLMR licensees due to the vast array of PLMR users. For the
    purpose of determining whether a licensee is a small business as
    defined by the SBA, each licensee would need to be evaluated within
    its own business area. The Commission is unable at this time to
    estimate the number of small businesses, if any, that could be
    impacted by the proposed rules. However, the Commission\'s 1994
    Annual Report on PLMRs[^133] indicates that at the end of fiscal
    year 1994 there were 1,087,267 licensees operating 12,481,989
    transmitters in the PLMR bands below 512 MHz. Because any entity
    engaged in a commercial activity is eligible to hold a PLMR license,
    the proposed rules in this context could potentially impact any
    small U.S. business that chooses to become licensed in this service.
    On July 21, 1999, the Wireless Telecommunications Bureau requested
    public comment on whether the licensing of PMRS frequencies in the
    800 MHz band for commercial SMR use would serve the public
    interest.[^134]

19. *Fixed Microwave Services*. Microwave services include common
    carrier,[^135] private‑operational fixed,[^136] and broadcast
    auxiliary radio services.[^137] At present, there are approximately
    22,015 common carrier fixed licensees in the microwave services. The
    Commission has not yet defined a small business with respect to
    microwave services. For purposes of this IRFA, we will utilize the
    SBA\'s definition applicable to radiotelephone companies \-- *i.e.*,
    an entity with no more than 1,500 persons.[^138] We estimate, for
    this purpose, that all of the Fixed Microwave licensees (excluding
    broadcast auxiliary licensees) would qualify as small entities under
    the SBA definition for radiotelephone companies.

20. *Offshore Radiotelephone Service*. This service operates on several
    UHF TV broadcast channels that are not used for TV broadcasting in
    the coastal area of the states bordering the Gulf of Mexico.[^139]
    At present, there are approximately 55 licensees in this service. We
    are unable at this time to estimate the number of licensees that
    would qualify as small entities under the SBA\'s definition for
    radiotelephone communications.

21. *Wireless Communications Services*. This service can be used for
    fixed, mobile, radio location and digital audio broadcasting
    satellite uses. The Commission defined \"small business\" for the
    wireless communications services (WCS) auction as an entity with
    average gross revenues of \$40 million for each of the three
    preceding years, and a \"very small business\" as an entity with
    average gross revenues of \$15 million for each of the three
    preceding years. The Commission auctioned geographic area licenses
    in the WCS service. In the auction, there were seven winning bidders
    that qualified as very small business entities, and one that
    qualified as a small business entity. We conclude that the number of
    geographic area WCS licensees that may be affected by the decisions
    and rules proposed in the Further Notice includes these eight
    entities.

22. *Multipoint Distribution Systems (MDS)*. The Commission has defined
    \"small entity\" for the auction of MDS as an entity that, together
    with its affiliates, has average gross annual revenues that are not
    more than \$40 million for the preceding three calendar years.[^140]
    This definition of a small entity in the context of MDS auctions has
    been approved by the SBA.[^141] The Commission completed its MDS
    auction in March 1996 for authorizations in 493 basic trading areas
    (BTAs). Of 67 winning bidders, 61 qualified as small entities.[^142]

23. MDS is also heavily encumbered with licensees of stations authorized
    prior to the auction. The SBA has developed a definition of small
    entities for pay television services, which includes all such
    companies generating \$11 million or less in annual receipts.[^143]
    This definition includes multipoint distribution systems, and thus
    applies to MDS licensees and wireless cable operators which did not
    participate in the MDS auction. Information available to us
    indicates that there are 832 of these licensees and operators that
    do not generate revenue in excess of \$11 million annually.
    Therefore, for purposes of this IRFA, we find there are
    approximately 892 small MDS providers as defined by the SBA and the
    Commission\'s auction rules, some which may be affected by the
    decisions and rules proposed in the Further Notice.

B. Satellite Providers

24. *International Service Providers.* The Commission has not developed
    a definition of small entities applicable to licensees in the
    international services. Therefore, the applicable definition of
    small entity is the definition under the SBA rules applicable to
    Communications Services, Not Elsewhere Classified (NEC). This
    definition provides that a small entity is expressed as one with
    \$11 million or less in annual receipts.[^144] According to the
    Census Bureau, there were a total of 848 Communications Services NEC
    in operation in 1992, and a total of 775 had annual receipts of less
    than \$9.999 million.[^145] We note that those entities providing
    only international service will not be affected by our proposed
    rules, if adopted. We do not, however, have sufficient data to
    estimate with greater detail those entities providing both
    international and domestic services or only domestic service.
    Consequently, we estimate that there are fewer than 775 small
    international service entities potentially impacted by our rules.

25. *Fixed Satellite Transmit/Receive Earth Stations.* Based on actual
    payments from FY 1998, there are approximately 3,100 earth station
    authorizations, a portion of which are Fixed Satellite
    Transmit/Receive Earth Stations.[^146] We do not request nor collect
    annual revenue information, and thus are unable to estimate the
    number of the earth stations that would constitute a small business
    under the SBA definition.

26. *Fixed Satellite Small Transmit/Receive Earth Stations.* There are
    3,100 earth station authorizations, a portion of which are Fixed
    Satellite Small Transmit/Receive Earth Stations.[^147] We do not
    request nor collect annual revenue information, and thus are unable
    to estimate the number of fixed satellite transmit/receive earth
    stations that would constitute a small business under the SBA
    definition.

27. *Fixed Satellite Very Small Aperture Terminal (VSAT) Systems*. These
    stations operate on a primary basis, and frequency coordination with
    terrestrial microwave systems is not required. Thus, a single
    \"blanket\" application may be filed for a specified number of small
    antennas and one or more hub stations. The Commission has processed
    377 applications.[^148] We do not request nor collect annual revenue
    information, and thus are unable to estimate the number of VSAT
    systems that would constitute a small business under the SBA
    definition.

28. *Mobile Satellite Earth Stations.* There are 11 licensees.[^149] We
    do not request nor collect annual revenue information, and thus are
    unable to estimate the number of mobile satellite earth stations
    that would constitute a small business under the SBA definition.

29. *Radio Determination Satellite Earth Stations.* There are four
    licensees.[^150] We do not request nor collect annual revenue
    information, and thus are unable to estimate the number of radio
    determination satellite earth stations that would constitute a small
    business under the SBA definition.

30. *Space Stations (Geostationary).* Commission records show that there
    are 43 Geostationary Space Station licensees.[^151] We do not
    request nor collect annual revenue information, and thus are unable
    to estimate the number of geostationary space stations that would
    constitute a small business under the SBA definition.

31. *Space Stations (Non-Geostationary).* There are 12 Non-Geostationary
    Space Station licensees, of which only two systems are
    operational.[^152] We do not request nor collect annual revenue
    information, and thus are unable to estimate the number of
    non-geostationary space stations that would constitute a small
    business under the SBA definition.

IV\. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements

32. This Notice of Proposed Rulemaking proposes no additional reporting
    or recordkeeping measures. The Notice of Proposed Rulemaking does
    seek comment on whether the Commission should permit additional
    flexibility in its rules to create incentives for the extension of
    wireless or satellite service to tribal lands or other unserved
    areas. For example, in section III.A.1 of the Notice of Proposed
    Rulemaking above, we seek comment on whether to relax antenna height
    and transmitter power limits for providers that commit to serving
    tribal lands or other unserved areas. In section III.A.2 of the
    Notice of Proposed Rulemaking above, we seek comment on whether to
    liberalize our buildout rules for providers that commit to serve a
    tribal land or other unserved area. In section III.A.7 of the Notice
    of Proposed Rulemaking above, we state that to the extent that we
    grant additional flexibility to providers, we believe it is
    important to ensure that providers actually provide service to
    tribal lands or other unserved areas in exchange for such
    flexibility. We therefore seek comment in that section on whether
    the grant of additional flexibility to wireless or satellite
    licensees should be conditioned on the existence of a binding
    agreement between the licensee and relevant tribal authority in the
    case of tribal lands, or a binding agreement between the licensee
    and another authority in the case of other unserved areas. To the
    extent that licensees choose to take advantage of any additional
    flexibiliity that we adopt, they may be required to comply with
    requirements to prove the existence of such binding agreements.

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

33. As described in Section II of the Notice of Proposed Rulemaking
    above, the Commission held two public hearings earlier this year at
    which federal and state officials, tribal officials, and
    telecommunications services providers addressed issues such as the
    costs of delivering services to remote areas having very low
    population densities, the impact of the size of local calling areas
    on the affordability of service, the quality of telephone service on
    tribal lands, the complexities of governmental jurisdiction and
    sovereignty issues, and the effects of low incomes and high
    unemployment on tribal lands on telephone service. Following up on
    the record developed in those hearings, we have decided to seek
    comment in this Notice of Proposed Rulemaking on specific potential
    initiatives that the Commission could adopt to facilitate the
    provision of telecommunications service to tribal lands and other
    unserved areas using wireless or satellite technologies.

34. For example, in section III.B.1 of the Notice of Proposed Rulemaking
    above, we seek comment on whether there are unallocated or
    unlicensed spectrum bands that could be used by telecommunications
    providers, including small entities, to serve the needs of tribal
    lands and other unserved areas. In section III.B of the Notice of
    Proposed Rulemaking above, we seek comment on whether there are
    unused channels in otherwise allocated and licensed spectrum that
    could be used by telecommunications providers, including small
    entities, to provide telephone service to tribal lands and other
    unserved areas. In section III.A.5 of the Notice of Proposed
    Rulemaking above, we seek comment on whether the Commission should
    modify its restrictions on the transfer of spectrum from "designated
    entities" (DEs) (entrepreneurs and small businesses) to non-DEs in
    order to facilitate the provision of telecommunications service to
    tribal lands or other unserved areas. We believe that at this
    juncture it is necessary to seek comment on the various alternatives
    set forth in this Notice of Proposed Rulemaking, including the three
    listed as examples above, for encouraging the provision of
    telecommunications service to tribal lands and other unserved areas.
    We encourage commenters to discuss any other alternatives that would
    minimize any significant economic impact on small entities.

    **VI. Federal Rules that May Duplicate, Overlap, or Conflict with
    the Proposed Rules**

35. None.

**Separate Statement of**

**Commissioner Gloria Tristani**

Re: Federal-State Joint Board on Universal Service: Promoting Deployment
and Subscribership in Unserved and Underserved Areas, CC Docket No.
96-45; Extending Wireless Telecommunications Services to Tribal Lands,
WT Docket No. 99-266.

I write separately to underscore my support for these items. Both
Notices of Proposed Rulemaking are intended to address and remedy the
dearth of telecommunications in Indian country and other unserved and
underserved areas. The facts are not in dispute. While Americans on
average enjoy a telephone subscribership rate of 94%, many communities
and areas throughout the land are not so fortunate. And Indians living
on tribal lands are the least fortunate of all. Telephone subscribership
rates on tribal lands fall under 50% in many instances and even under
30%, as in the case of the Navajo reservation.

These woeful statistics are not new, and this is not the first time that
the federal government and others have taken notice. What is new, is
that the Federal Communications Commission has not only taken notice,
but is now embarked in taking concrete action to change these
statistics. The items ask thoughtful, appropriate and insightful
questions, including questions about the scope of the problem, the
nature of the federal relationship with tribal sovereign governments,
and the extent to which the FCC should act to remedy the problem.

But, more importantly, the items posit concrete suggestions -- targeting
universal service support, bolstering and/or tailoring the Lifeline and
Linkup programs, using alternative technologies --- on how to provide
telecommunication services to Indian country and other unserved and
underserved communities. These suggestions are good first steps but I
hope commenters will not hesitate to suggest any other appropriate and
innovative measures.

Finally, while I am proud to support these items, I believe it is our
statutory and moral obligation to bring telecommunications to Indian
country. Section 254 of the Telecommunications Act mandates that we
assure that all Americans have access to telecommunications services.
The federal trust relationship between tribal sovereign governments and
the federal government suggests that we have an obligation to do even
more. But history, notions of equality, and the principles on which this
Nation was founded tell us that is unconscionable that Indians, the
first Americans, remain the last Americans to enjoy the wonders and
benefits of the Information Age. I trust that the small steps we take
today will go a long way in changing this picture.

[^1]: In this Notice, we refer to "Indians" and "Indian tribes." *See*
    The Federally Recognized Indian Tribe List Act of 1994 (Indian Tribe
    Act), Pub. L. 103-454, 108 Stat. 4791 (1994). The term "Indian"
    shall include "all persons of Indian descent who are members of any
    recognized Indian tribe now under Federal jurisdiction, and all
    persons who are descendants of such members who were, on June 1,
    1934, residing within the present boundaries of any Indian
    reservation, and shall further include all other persons of one-half
    or more Indian blood. . . . Eskimos and other aboriginal peoples of
    Alaska shall be considered Indians." 25 U.S.C. § 479. The term
    "Indian tribe" means "any Indian or Alaska Native tribe, band,
    nation, pueblo, village or community that the Secretary of the
    Interior acknowledges to exist as an Indian tribe." 25 U.S.C. §
    479a(2). The Secretary of the Interior is required to publish in the
    Federal Register an annual list of all Indian tribes which the
    Secretary recognizes to be eligible for the special programs and
    services provided by the United States to Indians because of their
    status as Indians. 25 U.S.C. § 479a-1.

[^2]: In this Notice, we use the term "tribal lands" to refer generally
    to those areas in which principles of tribal sovereignty and federal
    support for tribal self-determination apply. We note that, in
    conjunction with this Notice, we are adopting a companion Further
    Notice of Proposed Rulemaking in which we, among other things, seek
    comment on the appropriate definition of "tribal lands." *See*
    Federal State Joint Board on Universal Service: Promoting Deployment
    and Subscribership in Unserved, Tribal and Insular Areas, CC Docket
    No. 96-45, *Further Notice of Proposed Rulemaking*., FCC 99-204
    (adopted August 5, 1999, release pending) (*Universal Service
    Further Notice*). To the extent that we adopt terrestrial wireless
    and satellite initiatives to facilitate telecommunications service
    on tribal lands, we intend to define tribal lands consistently with
    the definition adopted in the *Universal Service Further Notice*.

[^3]: *See, e.g.*, Truth-in-Billing and Billing Format, CC Docket No.
    98-170, *First Report and Order and Further Notice of Proposed
    Rulemaking*, FCC 99-72, ¶ 51 (released May 11, 1999). *See also*
    Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, §
    706 (1996).

[^4]: We note that the *Universal Service Further Notice* proposes to
    define an unserved area as "any area in which facilities would need
    to be deployed in order for its residents to receive each of the
    services designated for support by the universal service support
    mechanisms" and seeks comment on this definition. *Universal Service
    Further Notice* at Section V.B. To the extent that we adopt
    terrestrial wireless and satellite initiatives to facilitate
    telecommunications service to unserved areas, we intend to define
    tribal lands consistently with the definition adopted in the
    *Universal Service Further Notice*.

[^5]: We use 1990 census data below, despite significant concerns about
    its accuracy for populations living on tribal lands, because we are
    unaware of any other relevant data that might be more accurate.

[^6]: *See* note 1 *supra* for a definition of "Indian tribes."

[^7]: AB Fillins, Petition for a Declaratory Ruling Preempting the
    Authority of the Tohono O'odham Legislative Council to Regulate the
    Entry of Commercial Mobile Radio Service to the Sells Reservation
    Within the Tucson MSA, Market No. 77, *Memorandum Opinion and
    Order*, 12 FCC Rcd 11755, 11759 (1997) (decision of a tribal
    legislative council to prevent the location of cellular sites on its
    tribal lands was within its authority as a landowner) (*AB Fillins
    Petition for Declaratory Ruling*).

[^8]: *Universal Service Further Notice*, FCC 99-204. In addition to the
    proposals in this Notice, the *Universal Service Further Notice*
    raises a number of issues that could affect the ability of wireless
    and satellite carriers to provide service to tribal and unserved
    areas. In particular, the *Universal Service Further Notice* seeks
    comment on the extent of tribal jurisdiction over communications
    services provided on tribal lands. *See Universal Service Further
    Notice* at Section III.A. The *Universal Service Further Notice*
    also seeks comment on the Commission's jurisdiction to designate
    wireless and satellite carriers as "eligible telecommunications
    carriers" (ETCs) pursuant to Section 214(e)(6) of the Act, both
    generally and specifically when the service is being provided on
    tribal lands. *See Universal Service Further Notice* at Section IV.

[^9]: *See* "NTIA, Falling Through the Net III: New Data on the Digital
    Divide" (July 8, 1999) at Chart I-3,
    \<[http://www.ntia.doc.gov/ntiahome/fttn99/FTTN_1/chart-I-3.html](http://www.ntia.doc.gov/ntiahome/net2/charts.html)\>.

[^10]: *See* Bureau of the Census, Statistical Brief, *Housing of
    American Indians on Reservations \-- Equipment and Fuels*, SB/95-11,
    April 1995 at 2 (according to 1990 census data).

[^11]: *See id.*

[^12]: In 1990, the unemployment rate among individuals living on tribal
    lands was approximately 25.6 percent. 1990 Census, CP‑2‑1 at Tables
    175 & 176.

[^13]: Contrary to popular belief, most tribal lands do not have
    casinos. See "Facts about Native American Gaming," Native American
    Gaming Insider, Aug. 1997 at 43 (only 23 percent of tribal lands
    have casinos).

[^14]: *See* Federal Communications Commission Will Hold A Series of
    Public Hearings on Telephone Service for Indians on Reservations and
    Seeks Comment from the General Public on All Testimony and Other
    Evidence Presented Therein, BO Docket No. 99-11, *Public Notice*, 14
    FCC Rcd 3331 (rel . Jan. 21, 1999); FCC to Hold Second Public
    Hearing in Series on Telephone Service for Indians on Reservations,
    BO Docket No. 99-11, *Public Notice*, 14 FCC Rcd 3522 (rel. March 2,
    1999); FCC, \"Overcoming Obstacles to Telephone Service to Native
    Americans on Reservations,\"
    \<<http://www.fcc.gov/Panel_Discussions/Teleservice_reservations/>\>.

[^15]: U.S. Congress, Office of Technology Assessment,
    Telecommunications Technology and Native Americans: Opportunities
    and Challenges 74, 80 (1995) (OTA Study). Data now suggests that
    Indian tribes live on some of the most isolated areas, locations
    that telecommunications carriers find especially expensive to serve.

[^16]: *See* Letter from David L. Sieradzki, Counsel for Western
    Wireless, Inc., to Magalie Roman Salas, Secretary, FCC, dated July
    15, 1998, at 18-20.

[^17]: According to Western Wireless, it was able to bring service to
    the region with approximately \$100,000 worth of infrastructure
    improvements. Western Wireless claims it would have cost over \$1
    million to provide wired service to the approximately 50 customers
    in the region. Western Wireless Seeks Universal Service Fund
    Subsidies for Rural Operations, [PCS Week]{.smallcaps}, Jul. 22,
    1998.

[^18]: Western Wireless Seeks Universal Service Fund Subsidies for Rural
    Operations, [PCS Week]{.smallcaps}, Jul. 22, 1998. Nevada Bell makes
    up the difference between the tariffed rate and Western Wireless'
    cellular rates.

[^19]: North Dakota Governor Edward Shafer and Western Wireless CEO John
    Stanton placed the inaugural calls on Regent\'s new system to North
    Dakota Senator Byron Dorgan and Federal Communications Commission
    Chairman William Kennard. [WirelessNow]{.smallcaps}, Jan. 8, 1999.

[^20]: Western Wireless spent \$350,000 building a cell site near town
    and leased 2,000 phone numbers from the local telephone company for
    \$320 per month. Bryan Gruley, Battle Lines: As Phone Wars Move to
    Rural Towns, Tactics Are Growing Rougher; Fighting for Clients, Cash
    from Subsidies, Upstart Finds Its Main Cable Cut; \'Not the
    900‑Pound Gorilla,\' [The Wall Street Journal]{.smallcaps}, Feb. 10,
    1999 (\"Feb. 10, 1999 WSJ Article \").

[^21]: CTIA Notebook[, Communications Daily]{.smallcaps}, Feb. 9, 1999.

[^22]: Feb. 10, 1999 WSJ Article.

[^23]: CTIA Notebook[, Communications Daily]{.smallcaps}, Feb. 9, 1999.
    Western Wireless CEO John Stanton claims that Western Wireless
    provides service at a fraction of the \$200 monthly per subscriber
    subsidy covered by the Universal Service Fund. *Id.*

[^24]: Bringing Local Loop to Puerto Rico, [Wireless Business &
    Technology]{.smallcaps}, Jan. 1998, at 27.

[^25]: Centennial Cellular Corporation, Form S-4, Mar. 3, 1999, at 6.
    These numbers include Centennial\'s product aimed at business
    customers, known as \"BusinessPhone.\" *See* Centennial de Puerto
    Rico, Centennial\'s Wireless System: Benefits & Advantages of
    Centennial\'s Wireless Products & Services (visited Feb. 27, 1999)
    \<http://www.centennialpr.net/wireless.htm\>.

[^26]: In addition to an AC power adapter, the phone comes with a
    12‑volt DC power pack that can be used during power outages or, for
    example, when the customer wants to take the phone outside.
    Centennial de Puerto Rico, Centennial Scores a First with CDMA Fixed
    Wireless Phones (visited Feb. 26, 1999)
    \<<http://www.qualcomm.com/cdma/bulletin/centennial.html>\>.

[^27]: Un Telefone Que Se Activa Con Solo Enchufarlo, Promotional Flyer,
    Centennial de Puerto Rico, Mar. 3, 1999. Additional minutes cost
    extra. There is also a plan costing \$39.95 per month, which
    includes 500 off-peak minutes and 90 peak minutes. *Id.*

[^28]: Un Telefone Que Se Activa Con Solo Enchufarlo, Promotional Flyer,
    Centennial de Puerto Rico, Mar. 3, 1999.

[^29]: *Id*. There is a \$69.95 activation charge if you lease the
    phone. The unit costs \$299. *Id.*

[^30]: *Bringing Local Loop to Puerto Rico*, [Wireless Business &
    Technology]{.smallcaps}, Jan. 1998, at 27. Centennial does not
    charge for incoming calls because it is compensated by Puerto Rico
    Telephone Company, the local exchange carrier (LEC) in Puerto Rico,
    for connecting them.

[^31]: *See* Fourth CMRS Competition Report, FCC 99-136 (adopted June
    10, 1999, released June 24, 1999), Appendix F.

[^32]: Amendment of Parts 1, 21, and 74 to Enable Multipoint
    Distribution Service and Instructional Television Fixed Service
    Licensees to Engage in Fixed Two-Way Transmission, *Report and
    Order*, 13 FCC Rcd. 19112 (1998), recon. FCC 99-178 (adopted July
    14, 1999, released July 24, 1999).

[^33]: Saddleback Communications is a division of the Salt River
    Pima-Maricopa Indian Community, a federally recognized
    self-governing Indian tribe. We note that this band is allocated
    primarily for government use and is the subject of a separate
    proceeding. Amendment of the Commission's Rules with Regard to the
    3650-3700 MHz Government Transfer Band, ET Docket No. 98-237,
    *Notice of Proposed Rulemaking and Order*, 14 FCC Rcd 1295 (1998).
    We do not address these issues here.

[^34]: The Establishment of Policies and Service Rules For the Mobile
    Satellite Service in the 2 GHz Band, IB Docket No. 99-81, RM-9328,
    *Notice of Proposed Rulemaking*, 14 FCC Rcd 4843, 4886 (1999) (*2
    GHz Notice*).

[^35]: *Id.*

[^36]: *Id.*

[^37]: The police force has purchased 15 mobile/unlimited dispatch
    telephone units and base station facilities.   Testimony of Walter
    V. Purnell, Jr., President and Chief Executive Officer, American
    Mobile Satellite Corporation, in BO Docket No. 99-11, submitted
    March 18, 1999.

[^38]: For years, the six permanent residents of Tortilla Flat, Arizona,
    had to travel 40 minutes to reach the nearest town in order to make
    a phone call. Today, they and the many tourists that pass through
    Tortilla Flat can use a public satellite payphone that was installed
    by International Connectors and Cable Corporation (ICC) and AMSC.
    The satellite payphone allows Tortilla Flat residents to better
    manage their restaurant and gift shop and, more importantly, to have
    access to 911 emergency help. The satellite phone booth costs
    \$5,000, and the price for a phone call starts at \$1.00-\$1.50 per
    minute. Users must have either a credit or debit card to make a
    phone call. *See* Skytouch Public Satellite Payphones,
    \<[http://www.skyplus.icc.com](http://www.skyplus.icc.com/)\>.

[^39]: See \<[http://www.gci.com](http://www.gci.com/)\>.

[^40]: *See, e.g.*, Merrill Lynch, Global Satellite Marketplace 99, at
    92-98 (April 14, 1999); "A Rural Ideal," Theresa Foley,
    Communications Week International, Aug. 10, 1998,
    \<<http://www.totaltele.com/cwi/209/209nr.html>\>.

[^41]: The terminals usually measure 0.9-1.8 meters, which equates to
    3-6 feet.

[^42]: VSATs offer data transmission rates reaching 514 kbs in the
    outbound direction and 192 kbs in the inbound direction.

[^43]: Letter of Emil Youssefzadeh, Chairman and CEO, STM Wireless,
    Inc., to Chris Murphy and Howard Griboff, FCC, dated July 13, 1999.

[^44]: *Id.*

[^45]: Comments of Titan Wireless on the *2 GHz Notice*, IB Docket No.
    99-81, dated July 21, 1999.

[^46]: *Id.*

[^47]: *See, e.g.*, "New Directions in Multimedia: Internet via
    Satellite," Roger Stanyard and Steve Roberts, May, 1998,
    \<www.telecoms-mag.com/marketing/articles/may98/stanyard.html\>.

[^48]: Such a trend is likely to continue as outbound traffic from the
    United States outweighs inbound traffic by a ratio ranging from 4:1
    to 8:1, according to Intelsat estimates.

[^49]: *See* Comments by Karen Buller, National Native American
    Telecommunications Institute, in BO Docket No. 99-11, at 3, dated
    January 29, 1999.

[^50]: *See* 47 C.F.R. § 22.99.

[^51]: BETRS uses digital emissions and time division multiple access
    (TDMA) technology, which allows up to a fourfold increase in lines
    per RF channel over conventional Rural Radio stations, as well as
    enhanced quality and privacy. Conventional Rural Radio stations are
    considered interconnected extensions to the local loop, while BETRS
    is treated as a local loop service.

[^52]: Mike Francis of the Navajo Communications Company ("NCC"), which
    provides telephone service to the Navajo Nation in Arizona, New
    Mexico and Utah as well as other tribal lands, testified that NCC
    operates three BETRS in addition to its wireline facilities. *See*
    New Mexico Hearing Transcript, BO Docket No. 99-11, pages 84-88,
    \<<http://www.fcc.gov/Panel_Discussions/Teleservice_reservations/tr-newmx.txt>\>.

[^53]: Section 22.759(a) of the Commission's rules allows an absolute
    maximum effective radiated power (ERP) for BETRS central office
    stations operating in the 454 MHz range at 3500 Watts. *See* 47
    C.F.R. § 22.759(a). However, paragraph (b) of that section limits
    the ERP for central office stations with an antenna height greater
    than 13 meters (about 40 feet), in accordance with a mathematical
    formula. Under section 22.737(c), which governs conventional Rural
    Radio stations, the maximum permitted ERP could be used with antenna
    heights up to 56 meters (about 184 feet) above ground level. *See*
    47 C.F.R. § 22.737(c).

[^54]: One supplier of rural telephone systems, however, advocates lower
    powered operations particularly where solar energy is used to power
    the subscriber station. *See* Obtaining Optimal System Performance
    and Reliability in Fixed-Point VHF and UHF Radio Telecommunications
    Systems by Minimizing RF Power Output, by James P. Longnecker, Sr.
    Applications Engineer, OptaPhone Systems, Inc. and Ronald F. Jones,
    Communications Consultant, November 1994, found at
    \<http://www.optaphone.com/noneed.html\>.

[^55]: Comments by Karen Buller, National Native American
    Telecommunications Institute, in BO Docket No. 99-11, at 3, dated
    January 29, 1999.

[^56]: The maximum power limits for Broadband PCS are found in section
    24.232 of the Commission's rules. 47 C.F.R. § 24.232. This rule
    establishes maximum power limits of 1640 Watts peak equivalent
    isotropically radiated power (EIRP) for base stations and 2 watts
    peak EIRP for mobile and portable stations. In addition, broadband
    PCS base stations are subject to a transmitter power output limit of
    100 Watts and an additional peak EIRP limitation as a function of
    antenna height for base stations utilizing antenna heights above 300
    meters (1000 feet) above average terrain.

[^57]: For example, maritime public fixed stations begin providing
    service within one year. 47 C.F.R. § 80.49(b).

[^58]: For example, 30 MHz PCS licensees must make service available to
    one-third of the population in their licensed area within five years
    and two-thirds of the population in their licensed areas within ten
    years. 47 CFR § 24.203.

[^59]: For example, LMDS carriers must offer substantial service within
    10 years. 47 C.F.R. § 101.1011(a). Substantial service is defined as
    "service which is sound, favorable and substantially above a level
    of mediocre service which might just minimally warrant renewal."
    *Id.*

[^60]: *See* 47 C.F.R. §§ 24.203(a), 90.665(c), 90.685(b).

[^61]: *See* 47 C.F.R. § 22.949.

[^62]: *See* 47 CFR § 22.912.

[^63]: *See* 47 C.F.R. Part 101.

[^64]: *See* 47 C.F.R. Part 90, Subpart C.

[^65]: For instance, in 1997, Congress designated 24 MHz of spectrum
    specifically for public safety use. *See* 47 U.S.C. § 337 (1999).

[^66]: *See, e.g.*, In the Matter of the Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State, and
    Local Public Safety Agency Communications Requirements Through 2010,
    Establishment of Rules and Requirements for Priority Access Service,
    *First Report and Order*, 14 FCC Rcd 12 (1998); In the Matter of
    Replacement of Part 90 by Part 88 to Revise the Private Land Mobile
    Radio Services and Modify the Policies Governing Them and
    Examination of Exclusivity and Frequency Assignments Policies of the
    Private Land Mobile Services, *Second Report and Order*, 12 FCC Rcd
    14307.

[^67]: *See* 47 C.F.R. § 24.839.

[^68]: *See* 47 C.F.R. § 1.2111(d).

[^69]: *See* 47 U.S.C. § 309(j)(4)(E).

[^70]: These licensees are Orbital Communications Corp., Volunteers in
    Technical Assistance Inc., Final Analysis Communications, E-SAT
    Inc., and LEO One USA Corp. *See* Orbital Communications
    Corporation, *Order and Authorization*, 13 FCC Rcd 10828 (Int. Bur.
    1998); Volunteers in Technical Assistance, *Order and
    Authorization*, 13 FCC Rcd 10845 (Int. Bur. 1998); Final Analysis
    Communications Services, Inc., *Order and Authorization*, 13 FCC Rcd
    6618 (Int. Bur. 1998); E-SAT, Inc*., Order and Authorization*, 13
    FCC Rcd 10859 (Int. Bur. 1998). Orbcomm today offers service via a
    28 satellite constellation system.

[^71]: These licensees are MCHI, Constellation, Iridium, and Globalstar.
    *See* Mobile Communications Holdings, Inc., *Order and
    Authorization*, 12 FCC Rcd 9663 (Int. Bur. and Office Of Eng. Tech.
    1997) (MCHI); Constellation Communications, Inc., *Order and
    Authorization*, 12 FCC Rcd 9651 (Int. Bur. and Office of Eng. Tech.
    1997) (Constellation); Motorola Satellite Communications, Inc.,
    *Order and Authorization*, 10 FCC Rcd 2268 (Int. Bur. 1995)
    (Iridium); Loral/Qualcomm Partnership, L.P., *Order and
    Authorization*, 10 FCC Rcd 2333 (Int. Bur. 1995) (Globalstar).

[^72]: For a description of these licenses, *see* Rulemaking to Amend
    Parts 1, 2, 21, and 25 of the Commission's Rules to Redesignate the
    27.5-29.5 GHz Frequency Band, to Reallocate the 29.5-30.0 GHz
    Frequency Band, to Establish Rules and Policies for Local Multipoint
    Distribution Service and for Fixed Satellite Services, *Third Report
    and Order*, 12 FCC Rcd 22310, 22316, at para. 13 (1997).

[^73]: Comments of Titan Wireless on the *2 GHz Notice*, IB Docket No.
    99-81, dated July 21, 1999.

[^74]: *See Universal Service Further Notice* at Section III.A.

[^75]: *AB Fillins Petition for Declaratory Ruling*, 12 FCC Rcd at
    11759.

[^76]: *See* Wireless Local Loop Tutorial,
    <http://www.webproforum.com/wll>, and "WLL Cuts the Wire," Global
    Telephony,
    <http://www.internettelephony.com/archive/globalgt598/gt598cover.html>.

[^77]: *See* section III.A.7 *supra*.

[^78]: *See, e.g.*, Amendment of the Commission's Rules to Establish
    Part 27, the Wireless Communications Service ("WCS"), GN Docket No.
    96-228, *Report and Order*, 12 FCC Rcd 10785 at ¶¶ 53-58 (1997);
    Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's Rules
    to Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate the
    29.5-30.0 GHz Frequency Band, to Establish Rules and Policies for
    Local Multipoint Distribution Service and for Fixed Satellite
    Services, CC Docket No. 92-297, *Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking*, 12 FCC
    Rcd 12545 at ¶¶ 132-139 (1997); Amendment of Part 90 of the
    Commission's Rules to Provide for the Use of the 220-222 MHz Band by
    the Private Land Mobile Radio Service, PR Docket No. 89-552, *Third
    Report and Order and Fifth Notice of Proposed Rulemaking*, 12 FCC
    Rcd 10943 at ¶ 80 (1997).

[^79]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, *Second Report and
    Order*, 9 FCC Rcd 2348 at ¶ 242 (1994).

[^80]: 47 C.F.R. § 1.1110(e).

[^81]: *See* 47 C.F.R. § 1.2111(d). The amount that must be paid back
    decreases over time.

[^82]: *See* *2 GHz Notice*, 14 FCC Rcd at 4886.

[^83]: *See* *2 GHz Notice*, 14 FCC Rcd at 4858-61.

[^84]: *See 2 GHz Notice*, 14 FCC Rcd at 4881-83.

[^85]: *See, e.g.*, Celsat Comments on the *2 GHz Notice* at 1 (June 24,
    1999) (Celsat Comments); ICO Comments on the *2 GHz Notice* at 19-21
    (June 24, 1999) (ICO Comments).

[^86]: *See, e.g.*, Constellation Comments on the *2 GHz Notice* at
    27-28 (June 24, 1999) (Constellation Comments); Globalstar Comments
    on the *2 GHz Notice* at 44-46 (June 24, 1999) (Globalstar
    Comments).

[^87]: Constellation Comments at 27-28; Globalstar Comments at 44-46;
    ICO Comments at 19-21; ICO USA Service Group Comments on the *2 GHz
    Notice* at 44-46 (June 24, 1999) (ICO USA Service Group Comments);
    Iridium Comments on the *2 GHz Notice* at 41-43 (June 24, 1999)
    (Iridium Comments); Boeing Reply Comments on the *2 GHz Notice* at
    24-25 (July 26, 1999); ICO Reply Comments on the *2 GHz Notice* at
    23-24 (July 26, 1999) (ICO Reply Comments); and ICO USA Service
    Group Reply Comments on the *2 GHz Notice* at 41-42 (July 26, 1999)
    (ICO USA Service Group Reply Comments).

[^88]: Celsat Comments at 28-29; Celsat Reply Comments on the *2 GHz
    Notice* at 18-22 (July 26, 1999) (Celsat Reply Comments).

[^89]: Celsat Comments at 28-29.

[^90]: ICO Comments at 19-21; ICO USA Service Group Comments at 44-46;
    Iridium Comments at 41-43; ICO Reply Comments at 23-24; and ICO USA
    Service Group Reply Comments at 41-42.

[^91]: ICO Comments at 19-21.

[^92]: Celsat Reply Comments at 18-22.

[^93]: *See, e.g.*, ICO Comments at 19-21.

[^94]: Commission Launches Earth Station Streamlining Initiative,
    *Public Notice*, DA 99-1259 (rel. June 25, 1999).

[^95]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et seq.*,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^96]: *See* 5 U.S.C. § 603(a).

[^97]: *See id.*

[^98]: 5 U.S.C. § 603(b)(3).

[^99]: *Id.* at § 601(6).

[^100]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies \"unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^101]: Small Business Act, 15 U.S.C. § 632.

[^102]: 5 U.S.C. § 601(4).

[^103]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^104]: 5 U.S.C. § 601(5).

[^105]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^106]: *Id*.

[^107]: United States Department of Commerce, Bureau of the Census,
    *1992 Census of Transportation*, Communications, and Utilities:
    Establishment and Firm Size, at Firm Size 1‑123 (1995) (\"1992
    Census\").

[^108]: 13 C.F.R. § 121.201, SIC Code 4812.

[^109]: *Id.*

[^110]: FCC, *Carrier Locator: Interstate Service Providers*, Figure 1
    (Jan. 1999) (*Carrier Locator*). *See also* 47 C.F.R. § 64.601 *et
    seq.* (TRS). The most reliable source of information regarding the
    numbers of commercial wireless entities appears to be data the
    Commission publishes annually in its *Carrier Locator* report,
    derived from filings made in connection with the Telecommunications
    Relay Service (TRS).

[^111]: *See* *Amendment of Parts 20 and 24 of the Commission\'s Rules
    \-- Broadband PCS Competitive Bidding and the Commercial Mobile
    Radio Service Spectrum Cap*, Report and Order, FCC 96-278, WT Docket
    No. 96-59, ¶¶ 57-60 (June 24, 1996), 61 FR 33859 (July 1, 1996);
    *see also* 47 C.F.R. § 24.720(b).

[^112]: *Id.*, at ¶ 60.

[^113]: *Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding*, PP Docket No. 93-253, Fifth Report and Order,
    9 FCC Rcd 5532, 5581-84 (1994).

[^114]: *See Amendment of Parts 2 and 90 of the Commission\'s Rules to
    Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool*, PR Docket No. 89-583, Second Order
    on Reconsideration and Seventh Report and Order, 11 FCC Rcd 2639,
    2693-702 (1995); *Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band*, PR Docket No. 93-144, First Report and Order,
    Eighth Report and Order, and Second Further Notice of Proposed
    Rulemaking, 11 FCC Rcd 1463 (1995).

[^115]: 13 C.F.R. § 121.201, SIC Code 4812. This definition provides
    that a small entity is a radiotelephone company employing no more
    than 1,500 persons.

[^116]: U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communications, and Utilities, UC92‑S‑1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms; 1992, SIC code 4812 (issued May 1995).

[^117]: Amendment of Part 90 of the Commission's Rules to Provide for
    the Use of the 220-222 MHz Band by Private Land Mobile Radio
    Service, Third Report and Order and Fifth Notice of Proposed
    Rulemaking, 12 FCC Rcd 10943, 11068‑70, at paras. 291‑295 (1997)
    (*220 MHz Third Report and Order*). The SBA has approved these
    definitions. *See* Letter from A. Alvarez, Administrator, SBA, to D.
    Phythyon, Chief, Wireless Telecommunications Bureau, FCC (Jan. 6,
    1998).

[^118]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11068‑69, para.
    291.

[^119]: *See generally* Public Notice, \"220 MHz Service Auction
    Closes,\" Report No. WT 98‑36 (Wireless Telecom. Bur. Oct. 23,
    1998).

[^120]: Public Notice, \"FCC Announces It is Prepared to Grant 654 Phase
    II 220 MHz Licenses After Final Payment is Made,\" Report No.
    AUC-18-H, DA No. 99-229 (Wireless Telecom. Bur. Jan. 22, 1999).

[^121]: Public Notice, \"Phase II 220 MHz Service Spectrum Auction
    Closes,\" Report No. AUC-99-24-E, DA No. 99-1287 (Wireless Telecom.
    Bur. July 1, 1999).

[^122]: Public Notice, \"First Paging Service Spectrum Auction Scheduled
    for December 7, 1999,\" Report No. AUC-99-26-A, DA No. 99-1103
    (Wireless Telecom. Bur. June 7, 1999).

[^123]: *Id.*

[^124]: *See* 47 C.F.R. § 20.9(a)(1) (noting that private paging
    services may be treated as common carriage services).

[^125]: *See* Letter from A. Alvarez, Administrator, SBA, to A.J.
    Zoslov, Chief, Auctions Division, Wireless Telecommunications
    Bureau, FCC (Dec. 2, 1998).

[^126]: *Carrier Locator* at Fig. 1.

[^127]: The service is defined in section 22.99 of the Commission\'s
    rules, 47 C.F.R. § 22.99.

[^128]: BETRS is defined in sections 22.757 and 22.759 of the
    Commission\'s rules, 47 C.F.R. §§ 22.757, 22.759.

[^129]: 13 C.F.R. § 121.201, SIC Code 4812.

[^130]: The service is defined in section 22.99 of the Commission\'s
    rules, 47 C.F.R. § 22.99.

[^131]: 13 C.F.R. § 121.201, SIC Code 4812.

[^132]: *See* 47 C.F.R. § 20.9(a)(2) (noting that certain
    Industrial/Business Pool service may be treated as common carriage
    service).

[^133]: Federal Communications Commission, *60th Annual Report, Fiscal
    Year 1994*, at 116.

[^134]: Public Notice, \"Wireless Telecommunications Bureau Incorporates
    Nextel Communications, Inc. Waiver Record into WT Docket No. 99-87:
    Seeks Comment on Licensing of PMRS Channels in the 800 MHz Band for
    Use in Commercial SMR Systems,\" DA 99-1431 (Wireless Telecom.
    Bureau July 21, 1999).

[^135]: 47 C.F.R. § 101 *et seq.* (formerly, Part 21 of the
    Commission\'s rules).

[^136]: Persons eligible under Parts 80 and 90 of the Commission\'s
    rules can use Private Operational-Fixed Microwave services. *See* 47
    C.F.R. Parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee\'s
    commercial, industrial, or safety operations.

[^137]: Auxiliary Microwave Service is governed by Part 74 of the
    Commission\'s Rules. *See* 47 C.F.R. § 74 *et seq.* Available to
    licensees of broadcast stations and to broadcast and cable network
    entities, broadcast auxiliary microwave stations are used for
    relaying broadcast television signals from the studio to the
    transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^138]: 13 C.F.R. § 121.201, SIC Code 4812.

[^139]: This service is governed by Subpart I of Part 22 of the
    Commission\'s Rules. *See* 47 C.F.R. §§ 22.1001 ‑ 22.1037.

[^140]: 47 C.F.R. § 21.961(b)(1).

[^141]: *See* Amendment of Parts 21 and 74 of the Commission\'s Rules
    With Regard to Filing Procedures in the Multipoint Distribution
    Service and in the Instructional Television Fixed Service and
    Implementation of Section 309(j) of the Communications Act -
    Competitive Bidding*,* MM Docket No. 94-31 and PP Docket No. 93-253,
    Report and Order, 10 FCC Rcd 9589 (1995).

[^142]: One of these small entities, O\'ahu Wireless Cable, Inc., was
    subsequently acquired by GTE Media Ventures, Inc., which did not
    qualify as a small entity for purposes of the MDS auction.

[^143]: 13 C.F.R. § 121.201.

[^144]: 13 C.F.R. § 120.121, SIC 4899.

[^145]: United States Dept. of Commerce, Bureau of Census, 1992 Economic
    Census Industry and Enterprise Receipts Size Report, at Table 2D.

[^146]: *See* Assessment and Collection of Regulatory Fees for Fiscal
    Year 1999, *Report and Order*, FCC 99-146, at Attachment A (rel.
    June 18, 1999).

[^147]: *Id.*

[^148]: *Id.*

[^149]: *Id.*

[^150]: *Id.*

[^151]: *Id.*

[^152]: *Id.*