August 20, 2001

DA 01-1941

Robert M. Gurss

Shook, Hardy, & Bacon, L.L.P.

600 14^th^ Street, N. W., Suite No. 800

Washington, D. C. 20005

Re: Request for Clarification

Dear Mr. Gurss:

This letter responds to the Request for Clarification filed by the
Association of Public-Safety Communications Officials-International,
Inc. ("APCO").[^1] APCO seeks clarification of the rules adopted in the
*Upper 700 MHz* *Second Report and Order* regarding frequency
coordination for the 700 MHz Guard Bands and adjacent public safety
bands.[^2] In response to APCO's Request for Clarification, the Personal
Communications Industry Association, Inc.[^3] ("PCIA") and the
Industrial Telecommunications Association[^4] ("ITA") submitted
comments, and APCO filed reply comments.[^5] For the reasons set forth
below, we deny the relief APCO seeks in its Request for Clarification.

The 746-806 MHz band has historically been used exclusively by
television stations (Channels 60 through 69).[^6] Pursuant to statutory
mandates enacted in the Balanced Budget Act of 1997, the Commission
reallocated 24 megahertz of this spectrum for public safety use and 36
megahertz of this spectrum for commercial use.[^7] In the *Upper* *700
MHz First Report and Order*, the Commission established Guard Bands at
the extremities of the 700 MHz commercial use bands to insulate the
adjacent 700 MHz public safety bands from harmful interference, while
providing for effective and valuable use of the Guard Band spectrum.[^8]

In the *Upper* *700 MHz* *Second Report and Order*, the Commission
adopted technical, operational, and licensing requirements for the Guard
Bands*.*[^9] The Commission determined that the Guard Bands would be
licensed to a new class of commercial user called a Guard Band
Manager.[^10] The Commission further determined that Guard Band Managers
would be engaged solely in the business of leasing for value spectrum to
third parties on a for-profit basis.[^11] Under the Commission's rules,
Guard Band Managers will be granted licenses under which they will allow
others to construct and operate stations at any available site within
the licensed area and on any channel for which the Guard Band Managers
are licensed.[^12] The Commission concluded that auctioning spectrum to
Guard Band Managers should enable parties to take advantage of the
efficiencies of site-by-site licensing, more readily acquire spectrum
for varied uses, and streamline the Commission's spectrum management
responsibilities.[^13]

In the *700 MHz* *Second Report and Order*, the Commission emphasized
that one of the most important responsibilities of the Guard Band
Manager is to ensure that operations on the Guard Band spectrum do not
interfere with public safety.[^14] To minimize the potential for harmful
interference to public safety operations immediately adjacent to the 700
MHz Guard Band frequencies, the Commission adopted frequency
coordination requirements for Guard Band Managers.[^15] Specifically,
under Section 27.601(d) of the Commission's rules, Guard Band Managers
are required to notify Commission-recognized public safety frequency
coordinators of certain proposed operating parameters of any site to be
constructed in the Guard Band Managers' license areas.[^16] This
notification applies to the coordination of both new stations and
station modifications. At a minimum, the notification must include
frequency or frequencies coordinated, antenna height, antenna location,
type of emission, effective radiated power, a description of the service
area, date of coordination and user name or a description of the type of
operation.[^17] Such notification must be made within one business day
after a Guard Band Manager has coordinated a station.[^18] To allow the
public safety community and other Guard Band Managers time to evaluate
coordination, entities coordinated by a Guard Band Manager must wait at
least ten business days after notification before beginning
operations.[^19] Additionally, Guard Band Managers are instructed to
cooperate with one another and the public safety community in the
selection of frequencies.[^20] In the event of harmful interference,
Guard Band Managers are expected to cooperate to resolve the problem by
mutually satisfactory arrangements. If such efforts fail, the Commission
may impose restrictions on the operations of any of the parties
involved.[^21]

In its Request for Clarification, APCO contends that the frequency
coordination requirements in Section 27.601(d) do not provide sufficient
interference protection to public safety users.[^22] APCO argues that
the rule does not adequately define the obligations of Guard Band
Managers in the event of an objection to a proposed operation by a
public safety coordinator.[^23] APCO maintains that notification of a
proposed Guard Band operation is not sufficient to avoid harmful
interference and insists that public safety coordinators be permitted to
object to such operations where there is a legitimate concern about
interference.[^24] APCO requests that Guard Band Managers be required to
hold the subject Guard Band operation in abeyance pending mutually
satisfactory resolution of the public safety coordinator's
objection.[^25] APCO also believes that coordination must be designed to
avoid potential interference with both actual public safety facilities
and with future public safety facilities proposed in applications or
Regional Plans.[^26] Accordingly, APCO requests that we clarify Section
27.601(d) to specify that if a public safety coordinator informs a Guard
Band Manager within the ten day notification period of a potential
interference with a current or planned public safety operation, the
Guard Band Manager must defer use of the subject frequencies until it
and the coordinator reach a mutually satisfactory resolution.[^27] Under
APCO's proposal, if the public safety coordinator and Guard Band Manager
are unable to reach an agreement, either party could submit the dispute
to the Commission for resolution.[^28] APCO's proposal does not include
any specific showings that the public safety coordinator must make in
support of its objection.

PCIA and ITA submitted filings in response to APCO's Request for
Clarification. In its submission, PCIA indicates that it is not opposed
to a procedure that would allow public safety coordinators to object to
a proposed Guard Band operation during the 10 day notification period
before a licensee can begin operations, provided that such objections
are: (1) filed immediately; (2) detailed; and (3) timely acted upon by
the Commission.[^29] According to PCIA, any such procedure should be
established prior to the implementation of service.[^30] PCIA does not,
however, fully support APCO's Request because of a concern that public
safety users might have an incentive to warehouse spectrum and impair
users' ability to make beneficial use of the Guard Band spectrum.[^31]

ITA agrees with APCO that further clarification of the Commission's
notifications procedures may be necessary, but ITA supports
industry-established notification standards. ITA states that Guard Band
Managers and public safety frequency coordinators should work together
to establish acceptable notification definitions and procedures but only
after the auction has been completed and the Guard Band Managers are
known.[^32] ITA further suggests that the Commission monitor the
development of a notification plan between the Guard Band Managers and
all of the public safety frequency coordinators through periodic
meetings and reporting criteria.[^33]

We conclude that it is not necessary to impose the additional
requirements on Guard Band Managers as recommended by APCO. We believe
the notification requirements that are triggered when a Guard Band
Manager coordinates a new station, modifies an existing station, or
files an application for an individual station license, are sufficient
to protect public safety operations from the potential for harmful
interference from adjacent Guard Band operations.[^34] Furthermore, when
a public safety coordinator and a Guard Band Manager disagree over the
potential for harmful interference, Section 27.601(d)(5) already
provides that the Commission may impose restrictions on the operations
of any of the parties involved.[^35] In the *Upper* *700 MHz* *Second
Report and Order*, the Commission struck a balance between the need to
minimize harmful interference and the obligation to facilitate rapid
deployment of Guard Band operations.[^36] We believe that the
protections proposed by APCO[^37] and supported by ITA,[^38] while
well-intentioned, lack the necessary balance to give all parties the
incentive to negotiate disputes in good faith and in a timely manner. To
adopt APCO's proposals would, in our judgement, remove most, if not all,
of the incentive on the part of all parties to expeditiously and fairly
resolve disputes. Given the interests of all parties in prompt
resolution of any disputes, we do not believe it is necessary for the
Commission to become involved in the adjudication of every dispute
regarding potential interference.

PCIA asks that we impose a deadline on when the Commission will render a
decision on a dispute between a public safety coordinator and a Guard
Band Manager.[^39] We decline to do so, preferring instead to give the
parties latitude and incentive to resolve their own disputes, should any
arise. If problems arise with this approach, we can revisit the matter
in the future. We believe that this process should be given an
opportunity to work before implementing any changes. Absent knowledge of
the nature and complexity of a dispute, we do not think it appropriate
to put a deadline on when the Commission might impose restrictions. Now
that the Guard Band Manager licensees are known, public safety
coordinators, frequency coordinators, and Guard Band Managers are free
to begin discussions on how the notification process will work,
including development of a process for dispute resolution, the sharing
of data concerning frequency usage and an exchange of information on
planned and future use of this spectrum.

We believe that the measures adopted by the Commission provide
interested parties with the best opportunity and the strongest incentive
to resolve disputes, both real and potential, in the most expeditious
manner, without seeking further involvement by the Commission. If we
find that these advance notification and coordination requirements are
not working as intended, we will consider whether revisions are
necessary.

We appreciate your comments on these matters.

Sincerely,

Kathleen O'Brien Ham, Deputy Bureau Chief Wireless Telecommunications
Bureau

[^1]: *See* Request for Clarification filed by the Association of
    Public-Safety Communications Official-International, Inc. ("APCO")
    on March 23, 2000 ("Request for Clarification"). APCO is an
    association of entities involved in the management and operation of
    state and local public safety communications systems, and is one of
    the Commission-certified frequency coordinators for the public
    safety services.

[^2]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *Second Report and Order*, 15 FCC Rcd 5299 (2000) ("*Upper*
    *700 MHz Second Report and Order*").

[^3]: *See* Partial Opposition of Personal Communications Industry
    Association, Inc., filed June 1, 2000.

[^4]: *See* Comments of the Industrial Telecommunications Association,
    Inc. filed June 1, 2000.

[^5]: *See* Reply Comments of APCO Regarding Request for Clarification,
    filed June 14, 2000.

[^6]: Incumbent television broadcasters are permitted by statute to
    continue operations in this band until their markets are converted
    to digital television*. See* 47 U.S.C. § 337(e). *See* Advanced
    Television Systems and Their Impact Upon Existing Television
    Broadcast Service, MM Docket No. 87-268, *Reconsideration of Fifth
    Report and Order*, 13 FCC Rcd 6860, 6887 (1998). Additional
    background on the spectrum allocation decisions that were made in
    response to the directives of the Balanced Budget Act of 1997 may be
    found in the *Report and Order* in ET Docket No. 97-157. *See*
    Reallocation of Television Channels 60-69, the 746-806 MHz Band, ET
    Docket No. 97-157, *Report and Order*, 12 FCC Rcd. 22,953, 22,953-55
    (1998) ("*Reallocation Report and Order*"). More information on the
    Commission's licensing regime for public safety may be found in WT
    Docket No. 96-86. *See* The Development of Operational, Technical
    and Spectrum Requirements For Meeting Federal, State and Local
    Public Safety Agency Communication Requirements Through the Year
    2010, WT Docket No. 96-86, *First Report and Order and Third Notice
    of Proposed Rule Making*, 14 FCC Rcd 152 (1998), *Second Memorandum
    Opinion and Order*, 15 FCC Rcd. 16844 (2000), *Third Memorandum
    Opinion and Order and Third Report and Order*, 15 FCC Rcd. 19844
    (2000), *Fourth Report and Order and Fifth Notice of Proposed
    Rulemaking*, 16 FCC Rcd. 2020, (2000).

[^7]: *See* Section 337(a) of the Communications Act, 47 U.S.C. §
    337(a), as added by § 3004 of the Balanced Budget Act of 1997, Pub.
    L. No. 105-33, 111 Stat. 251 (1997).

[^8]: The Guard Bands consist of paired one MHz sub-bands at 746-747 and
    776-777 MHz and two paired two MHz sub-bands at 762-764 and 792-794
    MHz. *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *First Report and Order*, 15 FCC Rcd 476, 48991 ¶¶ 30-34
    (2000) ("*Upper* *700 MHz First Report and Order*").

[^9]: Our decision on these issues was delayed after a large number of
    *ex parte* filings addressing technical and operational standards
    for the Guard Bands were submitted immediately preceding the
    adoption of the *700 MHz First Report and Order*. In response to
    those filings, the Commission chose to seek additional comment and
    deferred its decisions on the technical, operational, and licensing
    requirements in order to allow all interested parties to address
    these issues. *See 700 MHz Second Report and Order*, 15 FCC Rcd at
    5302-03 ¶ 5.

[^10]: 15 FCC Rcd at 5311-13 ¶¶ 26-28.

[^11]: *Id.* at ¶ 27.

[^12]: *See* 47 C.F.R. § 27.601 *et seq*.

[^13]: *See* 15 FCC Rcd at 5313-14, ¶ 31.

[^14]: *See* 15 FCC Rcd at 5313, ¶ 30.

[^15]: *See* 47 C.F.R. § 27.601(d). *See also* 15 FCC Rcd. at 5314-16,
    ¶¶ 14-24, 33-35.

[^16]: *Id.*

[^17]: *See 47 C.F.R.* at § 27.601(d)(2).

[^18]: *Id*. at § 27.601(d)(1). *see also* 15 FCC Rcd. at 5315, ¶ 35.

[^19]: *See* 15 FCC Rcd. at 5315, ¶ 35.

[^20]: *See* 15 FCC Rcd. at 5315, ¶ 35.

[^21]: *See* 47 C.F.R. at § 27.606.

[^22]: *See* Request for Clarification at 2.

[^23]: *Id.*

[^24]: *See* Request for Clarification at 3.

[^25]: *Id.* at 4.

[^26]: *See* APCO Reply Comments at 4-5.

[^27]: *See* Request for Clarification at 4.

[^28]: *Id.*

[^29]: *See* PCIA Partial Opposition at 1-2.

[^30]: *See* Partial Opposition of Personal Communications Industry
    Association, at 1-2, (filed June 1, 2000) ("*PCIA Partial
    Opposition*").

[^31]: *Id.* at 2.

[^32]: *See* Comments of the Industrial Telecommunications Association,
    Inc., (filed June 1, 2000) ("*ITA Comments*").

[^33]: *Id.* at 3.

[^34]: *See* 47 CFR 27.601(d)(1).

[^35]: *See* 47 CFR 27.601(d)(5).

[^36]: *See 700 MHz Second Report and Order*, 15 FCC Rcd at 5315-16, ¶
    35.

[^37]: *See* also Reply Comments of APCO Regarding Request for
    Clarification, filed June 12, 2000, (APCO's Reply) at 2.

[^38]: *See* ITA Comments at 3.

[^39]: *See* PCIA Partial Opposition at 2.