**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Reallocation of 30 MHz of 700 MHz ) RM No. 11348

Spectrum (747-762/777-792 MHz) )

from Commercial Use )

)

Assignment of 30 MHz of 700 MHz )

Spectrum (747-762/777-792 MHz) )

to the Public Safety Broadband Trust for )

Deployment of a Shared Public Safety/ )

Commercial Next Generation Wireless Network )

**order**

**Adopted: November 3, 2006 Released: November 3, 2006**

By the Acting Bureau Chief, Public Safety and Homeland Security Bureau:

1.  This order addresses a Petition for Rulemaking (the "Petition")
    filed by Cyren Call Communications Corporation ("Cyren Call")
    seeking reallocation of 30 MHz of commercial spectrum in the 747-762
    megahertz ("MHz") and 777-792 MHz bands and assignment of that
    spectrum without auction to a single licensee for deployment of a
    nationwide, broadband network for shared commercial and public
    safety use.[^1] For the reasons set forth below, we dismiss Cyren
    Call's petition without prejudice.

2.  In section 337(a) of the Communications Act of 1934, as amended
    ("the Act"), Congress mandated that the Commission allocate
    "spectrum between 746 megahertz and 806 megahertz, inclusive" by
    designating 24 MHz of the spectrum "for public safety services" and
    36 MHz of the spectrum "for commercial use to be assigned by
    competitive bidding pursuant to section 309(j)."[^2] As directed by
    Congress, the Commission allocated 24 MHz of this spectrum for
    public safety use at 764-776 MHz and 794-806 MHz and 36 MHz of this
    spectrum for commercial use at 746-764 MHz and 776-794 MHz.[^3] In
    section 309(j)(15)(C)(v) of the Act, enacted as part of the Digital
    Television Transition and Public Safety Act of 2005 (the "DTV Act"),
    Congress mandated that the Commission conduct an auction of
    "recovered analog spectrum" -- defined as the frequencies between
    698 and 806 megahertz, inclusive, other than the spectrum required
    by section 337 to be made available to public safety services and
    the spectrum auctioned prior to the date of enactment of the DTV Act
    -- by commencing the bidding not later than January 28, 2008.[^4]
    Accordingly, the Commission is required by sections 337(a) and
    309(j)(15)(C)(v) to auction the 30 MHz of spectrum for which Cyren
    Call seeks reallocation and assignment.

3.  We recognize the unique communications needs of public safety
    entities and the instrumental role that spectrum in the 700 MHz band
    can play in meeting those communications needs. To that end, we
    remain committed to ensuring effective and efficient communications
    between first responders.

4.  We conclude that Cyren Call's Petition is inconsistent with Sections
    337(a) and 309(j)(15)(C)(v)'s auction requirement.[^5] Even in its
    most recent response, "Cyren recognizes that Congressional action
    will be needed before its proposal could be implemented. But the FCC
    clearly has the authority to develop a public record . . ."[^6]
    Indeed, in its Petition, Cyren Call recognizes that the spectrum it
    seeks has been designated to be auctioned for commercial purposes
    and indicates that it "has committed itself to pursuing legislative
    relief."[^7] As such, the Commission has no authority to take
    further action on the request at this time, and will dismiss the
    Petition without prejudice, leaving the docket open.

5.  ACCORDINGLY, IT IS ORDERED, pursuant to Section 1.401(e) of the
    Commission's rules, and pursuant to authority delegated by Sections
    0.191(f) and 0.392 of the Commission's rules, that the Petition for
    Rulemaking filed by Cyren Call Communications Corporation on April
    27, 2006, is hereby DISMISSED without prejudice.

    FEDERAL COMMUNICATIONS COMMISSION

    Kenneth P. Moran, Acting Chief

    Public Safety and Homeland Security Bureau

[^1]: Petition for Rulemaking of Cyren Call Communications Corporation,
    RM 11348, filed April 27, 2006.

[^2]: *See* 47 U.S.C. § 337(a), as enacted by the Balanced Budget Act of
    1997, Pub. L. No. 105-33, Title III, 111 Stat. 251 (1997).

[^3]: *Reallocation of Television Channels 60-69, the 746-806 MHz Band*,
    ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953 (1997).
    The commercial portion at 746-764 MHz and 776-794 MHz includes the
    spectrum that is the subject of the Petition and two blocks of
    paired "guard band" spectrum at 746-747 MHz and 776-777 MHz, and
    762-764 MHz and 792-794 MHz. *See* *Former Nextel Communications,
    Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of
    the Commission's Rules*; *Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010*, WT Docket
    Nos. 06-169, 96-86, *Notice of Proposed Rulemaking*, FCC 06-133
    (rel. Sept. 8, 2006). The Commission has not yet auctioned the
    commercial spectrum in the 747-762 MHz and 777-792 MHz bands.

[^4]: *See* 47 U.S.C. § 309(j)(15)(C)(v), (vi), as enacted by the
    Digital Television Transition and Public Safety Act of 2005, Title
    III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4, 22, § 3003(a)(2)(2006).

[^5]: *See* 47 C.F.R. § 1.401(e) ("Petitions \[for rulemaking\]
    which...plainly do not warrant consideration by the Commission may
    be denied or dismissed without prejudice to the petitioner.").

[^6]: Letter from Morgan E. O'Brien, Chairman of the Board, Cyren Call,
    to The Honorable Kevin J. Martin, RM-11348 (filed November 2, 2006)
    at 3.

[^7]: Petition at vi, footnote 4.