**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 99-87          |
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| Implementation of Sections       | ** | RM-9332                      |
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**THIRD REPORT AND ORDER**

**Adopted: March 22, 2007 Released: March 26, 2007**

By the Commission:

Table of Contents

Heading Paragraph \#

I. introduction AND EXECUTIVE SUMMARY 1

II\. BACKGROUND 3

III\. DISCUSSIOn 8

A. User Migration to 6.25 kHz Technology 8

B. Implementation Date in Sections 90.203(j)(4)-(5) 12

C. Other Issues 17

1\. M/A-COM Proposals to Restructure the Bands Below 512 MHz and Convert
Shared Channels to Exclusive Use Channels in the Bands Below 470 MHz 17

2\. Effects of 12.5 kHz Interim Transition Date on Public Safety Users
19

IV\. procedural matters 21

A. Regulatory Flexibility Act Analysis 21

B. Paperwork Reduction Act of 1995 Analysis 22

C. Congressional Review Act Analysis 23

D. Further Information 24

V. oRDERING cLAUSES 26

APPENDIX A---PETITION TO DEFER AND COMMENTS

APPENDIX B---FINAL RULES

APPENDIX C---FINAL REGULATORY FLEXIBILITY ANALYSIS

# introduction AND EXECUTIVE SUMMARY

1.  In the *Second Report and Order and Second* *Further Notice of
    Proposed Rule Making* (*Second Report and Order* and *Second Further
    Notice*, respectively) in this proceeding,[^1] the Commission sought
    comment on requiring certain private land mobile radio (PLMR)
    licensees to transition to 6.25 kHz technology. In the *Third
    Memorandum Opinion and Order*, *Third Further Notice of Proposed
    Rule Making and Order* (*Third MO&O*, *Third Further Notice*, and
    *Order*, respectively) in this proceeding,[^2] the Commission sought
    comment on a proposal[^3] to defer or eliminate the requirement in
    Sections 90.203(j)(4)-(5) of the Commission's Rules[^4] that certain
    applications for equipment authorizations received on or after
    January 1, 2005, must specify 6.25 kHz capability, and stayed the
    January 1, 2005, compliance date. This *Third Report and Order*
    addresses the comments and reply comments received in response to
    the *Second* *Further Notice* and the *Third Further Notice*.

2.  The major decisions in the *Third Report and Order* are as follows:

-   We decline to establish a fixed date for users to transition to 6.25
    kHz technology.

-   We change the implementation date for 6.25 kHz equipment capability
    as specified in Sections 90.203(j)(4)-(5) of the Rules, from January
    1, 2005, to January 1, 2011.

# BACKGROUND

3.  In the *Refarming* proceeding in 1995, the Commission adopted rule
    changes to promote the efficient use of the PLMR service and
    facilitate the introduction of advanced technologies.[^5] To promote
    the transition to a more efficient narrowband channel plan, the
    Commission adopted certain market-based incentives in the PLMR
    service, by providing, *inter alia*, that "only increasingly
    efficient equipment" would be type certified.[^6] Accordingly, since
    February 14, 1997, the Commission has certified equipment employing
    25 kHz channel bandwidth only if it was also capable of operating on
    12.5 kHz or narrower channels, or with the equivalent
    efficiency.[^7] The *Refarming* rules also provided that
    applications for equipment certification received after January 1,
    2005, would be granted only if the equipment is either capable of
    operating on 6.25 kHz or narrower channels, or has equivalent
    efficiency.[^8] The Commission did not set a date after which it
    would no longer approve equipment with a wideband (25 kHz) mode, or
    after which such equipment could no longer be manufactured or
    used.[^9] It believed that the mandate was unneeded because, as
    systems reached the end of their service life and new radios were
    needed, users would migrate to the narrower bandwidth multi-mode
    radios in order to avoid the adjacent channel interference that
    could occur from systems using the adjacent narrowband
    channels.[^10]

4.  In 2003, the Commission released the *Second Report and Order and
    Second Further Notice*. It determined that because the existing
    rules failed to provide adequate incentive to realize the
    Commission's spectrum efficiency goals in these bands, stronger
    measures would be required to bring about a timely transition to
    narrowband technology.[^11] Specifically, the *Second Report and
    Order*: (1) prohibited any applications for new systems using 25 kHz
    channels, effective January 13, 2004;[^12] (2) prohibited any
    modification applications that expand the authorized contour of an
    existing station if the bandwidth for transmissions specified in the
    modification application is greater than 12.5 kHz, effective January
    13, 2004;[^13] (3) prohibited the certification of any equipment
    capable of operating with only one voice path per 25 kHz of
    spectrum, *i.e*., equipment that includes a 25 kHz mode, beginning
    January 1, 2005; (4) prohibited the manufacture and importation of
    any 150-174 MHz or 421-512 MHz band equipment that can operate on a
    25 kHz bandwidth beginning January 1, 2008; and (5) imposed
    deadlines of January 1, 2013, for licensees in the
    Industrial/Business Radio Pool and January 1, 2018, for licensees in
    the Public Safety Radio Pool to migrate to 12.5 kHz technology in
    the 150-174 MHz and 421-512 MHz bands.[^14]

5.  In the *Second Further Notice*, the Commission sought comment on
    whether measures similar to those adopted in the *Second Report and
    Order* to encourage the migration to 12.5 kHz narrowband technology
    should also be applied to facilitate migration to 6.25 kHz
    technology.[^15] Noting that 12.5 kHz technology was a transitional
    standard to facilitate migration to 6.25 kHz technology, and in
    light of the measures adopted in the *Second Report and Order*, the
    Commission tentatively concluded that similar measures would
    facilitate migration to 6.25 kHz technology.[^16] It also sought
    comment on a date or dates by which licensees must migrate to 6.25
    kHz technology.[^17]

6.  In 2004, the Commission released the *Third MO&O*, *Third Further
    Notice*, and *Order*. In response to eighteen petitions for
    reconsideration of the rules adopted in the *Second Report and
    Order*, the Commission made the following decisions in the *Third
    MO&O* and *Order*:

-   It set January 1, 2013, as the deadline for Industrial/Business and
    Public Safety Radio Pool licensees in the 150-174 MHz and 421-512
    MHz bands to either migrate to 12.5 kHz technology, or utilize a
    technology that achieves the narrowband equivalent of one voice
    channel per 12.5 kHz of channel bandwidth or 4800 bits per second
    per 6.25 kHz if the bandwidth for transmissions specified in the
    modification application is greater than 12.5 kHz.

-   It revised the interim dates established in the *Second Report and
    Order* as follows:

    -   Applications for new operations using 25 kHz channels will be
        accepted until January 1, 2011. Thereafter, applications for new
        operations using a bandwidth greater than 12.5 kHz will be
        accepted only to the extent that the equipment meets the
        spectrum efficiency standard of one voice channel per 12.5 kHz
        of channel bandwidth or 4800 bits per second per 6.25 kHz.

    -   Applications for modification of operations that expand the
        authorized contour of an existing station using 25 kHz channels
        will be accepted until January 1, 2011. Thereafter, such
        applications that expand the authorized contour of an existing
        station will be accepted only to the extent that the equipment
        meets the spectrum efficiency standard of one voice channel per
        12.5 kHz of channel bandwidth or 4800 bits per second per 6.25
        kHz if the bandwidth for transmissions specified in the
        modification application is greater than 12.5 kHz.

    -   Manufacture and importation of any 150-174 MHz and 421-512 MHz
        band equipment operating on a channel bandwidth up to 25 kHz
        will be permitted until January 1, 2011. Thereafter, manufacture
        and importation of any 150-174 MHz and 421-512 MHz band
        equipment operating on a channel bandwidth greater than 12.5 kHz
        will be accepted only to the extent that the equipment meets the
        spectrum efficiency standard of one voice channel per 12.5 kHz
        of channel bandwidth or 4800 bits per second per 6.25 kHz.

-   It revised the Commission's Rules to permit applications for
    equipment certification received on or after January 1, 2005,
    operating with a 25 kHz bandwidth, to the extent that the equipment
    meets the spectrum efficiency standard of one voice channel per 6.25
    kHz of channel bandwidth or 4800 bits per second per 6.25 kHz.
    However, it stayed the requirement in Sections 90.203(j)(4)-(5) that
    applications for equipment certification received on or after
    January 1, 2005, will be granted only if the equipment either (1) is
    capable of operating on 6.25 kHz channels, or (2) the equipment
    meets a narrowband efficiency standard, *i.e.*, one channel per 6.25
    kHz or 4800 bits per second per 6.25 kHz.[^18]

The Commission received no petitions for reconsideration of the *Third
MO&O* and *Order*.

7.  In the *Third Further Notice*, the Commission sought comment on a
    proposal to defer or eliminate the January 1, 2005, date in Sections
    90.203(j)(4)-(5).[^19] Specifically, it asked whether the 6.25 kHz
    equipment certification rules would place onerous burdens on
    manufacturers and jeopardize the promotion of interoperability
    between users in the absence of a 6.25 kHz equivalent efficiency
    standard.[^20] Additionally, it sought comment on equipment that is
    specifically manufactured to utilize 6.25 kHz channel bandwidth as
    opposed to wider bandwidth equipment capable of operating with an
    equivalent efficiency of 6.25 kHz.[^21] Finally, the Commission
    sought comment on whether 6.25 kHz bandwidth equipment versus wider
    bandwidth equipment with an equivalent efficiency of 6.25 kHz
    affects interoperability.[^22] The Commission also stated that it
    would defer its decision on the broader issues raised in the *Second
    Further Notice* regarding migration to 6.25 kHz technology until it
    compiled a record in response to the *Third Further Notice*.[^23]

# discussion

## User Migration to 6.25 kHz Technology

8.  As noted above, the Commission sought comment in the *Second Further
    Notice* on whether measures similar to those adopted in the *Second
    Report and Order* to encourage the migration to 12.5 kHz narrowband
    technology should also be applied to encourage migration to 6.25 kHz
    technology. The comments to the *Second Further Notice* unanimously
    oppose a mandatory migration requirement to 6.25 kHz technology as
    "premature and inappropriate."[^24] Several comments state that a
    mandatory conversion to 6.25 kHz would have significant
    technological hurdles to overcome, would add unnecessary confusion
    during the transition to 12.5 kHz, and would actually delay
    deployment of spectrum efficient technology.[^25] Motorola, Inc.
    (Motorola) states that the Commission should permit market forces to
    shape the demand for 6.25 kHz.[^26] It points out that while the
    Project 25[^27] "Phase I" 12.5 kHz frequency division multiple
    access (FDMA)[^28] standard is complete, development of a Project 25
    "Phase II" 6.25 kHz FDMA standard is still in progress. Therefore,
    Motorola contends that any mandated changes at this time would be a
    waste of resources spent on developing a 12.5 kHz standard and would
    likely increase equipment costs.[^29] Other comments suggest that
    market demand is not sufficient to spur the manufacture of 6.25 kHz
    equipment.[^30] Existing time division multiple access (TDMA)[^31]
    technology provides 6.25 kHz equivalency over 12.5 kHz (2-slot) or
    25 kHz (4-slot) bandwidths,[^32] and most federal agencies have
    established communications systems based on a 12.5 kHz
    standard.[^33] Other comments state that a mandatory migration to
    6.25 kHz narrowband is not an economically feasible or
    technologically viable option for high speed data
    transmissions,[^34] "one-to-many" dispatch architecture via
    simulcast,[^35] or encryption of voice and data.[^36]

9.  Commenters to the *Third Further Notice* also oppose a mandatory
    migration requirement for 6.25 kHz technology. The National Public
    Safety Telecommunications Council (NPSTC) believes that a mandatory
    date for transitioning to 6.25 kHz would be counterproductive to the
    FCC's objective to complete the transition to 12.5 kHz, because the
    12.5 kHz transition presents significant operational and logistical
    challenges to public safety agencies. [^37] NPSTC notes that a
    finite date mandating yet another transition raises the specter of
    more expense in a sector where equipment cycles are already
    lengthy.[^38] Further, NPSTC urges the Commission not to mandate a
    transition to 6.25 kHz technology until operational issues such as
    interoperability capability are resolved.[^39] Finally, NPSTC states
    that requiring 6.25 kHz spectrum efficiency without widespread
    availability, use, and acceptance of equipment would be
    counterproductive to the Commission's objective.[^40] Icom America,
    Inc. and Icom, Inc. (collectively, Icom) see little benefit in
    setting dates for user conversion to 6.25 kHz at this time, with
    mandatory conversion to 12.5 kHz taking place by 2013.[^41] Motorola
    and Kenwood USA Corporation (Kenwood) note that the Commission can
    defer reassessment of the development of 6.25 kHz technologies until
    early next decade, when the 12.5 kHz transition will be near
    completion.[^42]

10. Based on our review of the comments, we will not establish a
    specific migration plan to 6.25 kHz at this time. We note that the
    majority of commenters believe that adopting such a measure would be
    premature, and we conclude that more time is warranted to allow
    further development and field testing of the 6.25 kHz standard. It
    thus is not presently apparent what date would be most appropriate
    for requiring licensees to use radios that operate on 6.25 kHz
    channels or wider-band equipment that delivers equivalent
    efficiency.

11. We reiterate, however, that 12.5 kHz technology is a transitional
    step in the eventual migration of PLMR systems to 6.25 kHz
    technology. As the demand for scarce PLMR spectrum continues to
    grow, the Commission will closely monitor the progress made by
    standards-setting organizations and equipment manufacturers to
    develop more spectrum-efficient PLMR systems. We will pay particular
    attention to progress made in the development of 6.25 kHz
    technology. When that technology matures to the point that
    sufficient equipment is available for testing, we will expeditiously
    establish a transition date for users to convert to that more
    spectrum-efficient technology. As discussed below, radios that
    operate on 6.25 kHz channels or wider-band equipment that delivers
    equivalent efficiency will be available before the January 1, 2013
    date by which users must migrate to 12.5 kHz technology. Given that
    the Commission will adopt a date by which users must migrate to 6.25
    kHz technology, we strongly urge licensees to consider the
    feasibility of migrating directly from 25 kHz technology to 6.25 kHz
    technology prior to January 1, 2013. Such a course could be more
    efficient and economical than first migrating to 12.5 kHz technology
    by 2013, then further migrating to 6.25 kHz technology thereafter.

## Implementation Date in Sections 90.203(j)(4)-(5)

12. As noted above, the Commission sought comment in the *Third Further
    Notice* on whether to defer or eliminate the requirement in Sections
    90.203(j)(4)-(5) that applications for 150-174 MHz and 421-512 MHz
    equipment authorizations received on or after January 1, 2005, must
    specify 6.25 kHz capability. All commenters to the *Third Further
    Notice* oppose the January 1, 2005, implementation date. This date
    was stayed in the *Order*, and we see no value in retaining it in
    the rules, when, even now, there is no industry standard for 6.25
    kHz equipment. As M/A-COM, Inc. (M/A-COM) notes, enforcing an
    equipment authorization cut-off now would place onerous burdens on
    manufacturers because they would be forced to produce interim
    technologies before the finalization of standards, simply to comply
    with this spectrum efficiency rule.[^43] The finalization of
    standards afterward could require the development of new, compliant
    radio equipment at additional cost to the manufacturers and,
    ultimately, to consumers. We also agree with NPSTC that enforcing
    the deadline now without the widespread availability, use, and
    acceptance of equipment could impair the Commission's
    interoperability objectives, because interoperability among public
    safety users would suffer if non-standardized 6.25 kHz equipment
    were deployed prior to the emergence of an interoperability
    standard.[^44]

13. We disagree, however, with those parties, such as the Land Mobile
    Communications Council (LMCC), Kenwood, Motorola, and Enterprise
    Wireless Alliance (EWA), that argue that the requirement should be
    eliminated entirely,[^45] and marketplace activities alone should
    influence introduction and adoption of 6.25 kHz technologies into
    equipment.[^46] Motorola argues that, because the initial rules
    governing narrowbanding \-- not certifying new 25 kHz radios after a
    date certain \-- did not fully and rapidly achieve the Commission's
    first narrowband initiative, we should abandon that incentive
    altogether in the context of implementing 6.25 kHz
    narrowbanding.[^47] However, the Commission never determined that
    the 25 kHz certification limitation was inherently ineffective. It
    said only that the certification limitation, alone, was not
    producing the desired result and that an additional \-- not an
    alternative \-- measure was necessary to timely implement
    narrowbanding to 12.5 kHz.[^48] Thus it retained the certification
    limitation and added the additional provision that barred use of 25
    kHz equipment after a date certain. Motorola, *et al.* have made no
    persuasive argument for eliminating the rule barring certification,
    after a date certain, of radios that do not meet a 6.25 kHz (or
    equivalent) efficiency standard and we decline to do so.

14. We agree with Icom that mandating a 6.25 kHz efficiency standard
    will spur technological advances and provide choices for users.[^49]
    Icom supports a date in the near future in order to ensure that
    users can choose between 12.5 kHz and 6.25 kHz equipment as the 12.5
    kHz user transition date approaches.[^50] We are concerned, however,
    that adoption of too early a date may not allow enough time for
    field testing of equipment once 6.25 kHz standards have been
    established. This would not further the public interest, because it
    could bring about the same circumstances that led the Commission to
    stay and reexamine the January 1, 2005, date.

15. LMCC supports an implementation date of January 1, 2015,[^51] which
    would bring the rule section into line with the new deadline of
    December 31, 2014, after which manufacturers may market,
    manufacture, and import only 6.25 kHz equipment or 12.5 kHz dual
    mode equipment in the 700 MHz band.[^52] LMCC argues that this would
    maximize economies of scale for equipment manufacturers.[^53]
    Delaying the implementation date by ten years, however, appears both
    unnecessary and contrary to the purpose of this proceeding.

16. We conclude, based on the record in this proceeding, that January 1,
    2011, is the most appropriate date to implement the requirement in
    Sections 90.203(j)(4)-(5) that certain applications for equipment
    authorizations specify 6.25 kHz capability. First, it is the same
    date as the interim deadline the Commission established in the
    *Third MO&O* prohibiting the manufacture or importation of 25 kHz
    equipment. Having these deadlines coincident will offer users a
    choice between 6.25 kHz and 12.5 kHz equipment well ahead of the
    2013 deadline for migration to 12.5 kHz technology and increase
    economies of scale for equipment manufacturers. Availability of 6.25
    kHz equipment before the 12.5 kHz migration deadline may encourage
    some users of wideband equipment to make one cost-saving transition
    directly to 6.25 kHz-capable equipment. Second, the date is in line
    with NPSTC's recommendation of implementing the rules five years
    after a 6.25 kHz interoperability standard has been defined and
    published by the Telecommunications Industry Association (TIA)
    and/or the American National Standards Institute (ANSI), which is
    expected to occur in the near future.[^54]

## Other Issues

### M/A-COM Proposals to Restructure the Bands Below 512 MHz and Convert Shared Channels to Exclusive Use Channels in the Bands Below 470 MHz

17. In its comments to the *Third Further Notice*, M/A-COM proposes two
    major changes to Part 90 of the Commission's Rules that it believes
    would promote efficiency and facilitate the deployment and use of
    6.25 kHz equipment. First, M/A-COM suggests restructuring the bands
    below 512 MHz.[^55] M/A-COM offers alternate-channel center plans in
    both the VHF and UHF bands,[^56] which it contends would yield more
    effective spectrum when the transition is made to more
    spectrum-efficient technology.[^57] Second, M/A-COM suggests that
    converting shared channels to exclusive-use channels in the bands
    below 470 MHz would be an incentive for licensees to migrate to more
    efficient equipment as they become capacity-limited.[^58] In making
    a case against the current shared environment, M/A-COM cites the
    *Second Report and Order*, where the Commission stated that
    licensees do not necessarily accrue the benefits of investment in
    narrowband technology because some may choose more efficient
    equipment while other licensees in the band may not.[^59]

18. Icom believes that a more comprehensive review of M/A-COM's
    suggestions is warranted, although it recognizes that this review is
    beyond the scope of the Commission's current inquiry.[^60] NPSTC
    states that M/A-COM's suggestions present issues that overtake the
    question in the *Third Further Notice*.[^61] We agree and note that
    MA-COM may pursue its proposals further by filing a petition for
    rulemaking. We also note that in the *Report and Order* in this
    proceeding, the Commission rejected a proposal to convert part of
    the 450-470 MHz band from shared channels to exclusive use
    channels.[^62] Motorola opposes M/A-COM's band restructuring
    recommendation on the basis that it would cause unnecessary
    disruption to the narrowbanding initiative, and Motorola recalls
    that the Commission considered and rejected similar band
    restructuring proposals in the *Refarming* proceeding.[^63]
    Specifically, in 1995, *Refarming* commenters opposed a requirement
    to shift their frequencies to align with a proposed channelization
    plan,[^64] and the Commission recognized that remaining on-channel
    was seen as critical to existing licensees.[^65] In 1996, the
    Commission denied several petitions for reconsideration seeking a
    shift in VHF channelization and reaffirmed the channel plan adopted
    in the *Refarming Report and Order*.[^66] Motorola believes that
    M/A-COM has presented no new arguments that would warrant
    reconsideration of these *Refarming* decisions.[^67] To address
    Motorola's concern, any such petition for rulemaking should explain
    how circumstances have changed to warrant consideration of these
    proposals.

### Effects of 12.5 kHz Interim Transition Date on Public Safety Users

19. NPSTC embraces the Commission mandate for conversion to 12.5 kHz
    technology by January 1, 2013.[^68] However, NPSTC anticipates that
    the requirements of the January 1, 2011, interim transitional date,
    which the Commission adopted in the *Third MO&O*, present
    significant operational and logistical challenges to public safety
    agencies.[^69] After January 1, 2011, neither a modification to
    expand the contour of an existing station nor the manufacture or
    importation of equipment may take place unless the equipment
    comports with 12.5 kHz technology.[^70] NPSTC notes that it is not
    unusual for public safety agencies to expand or change the
    geographic areas for which they are responsible.[^71] Such changes
    would not be permitted after January 1, 2011, for systems that
    operate exclusively at 25 kHz. Additionally, if an agency's 25 kHz
    bandwidth-only equipment is damaged, lost, or incapable of repair,
    NPSTC is concerned that replacement equipment may not be available
    after January 1, 2011.[^72] NPSTC finds it unreasonable that unless
    it obtains a waiver of the Commission's rules, an agency cannot
    expand its contour or replace its 25 kHz equipment after January 1,
    2011, which is two years ahead of the firm date for 12.5 kHz
    technology.[^73]

20. In the *Third MO&O*, the Commission addressed concerns regarding
    interim dates, including concerns about modifications and
    replacement equipment, by delaying the interim dates to January 1,
    2011.[^74] However, the Commission emphasized that the purpose of
    interim deadlines is to encourage licensees to begin planning and
    implementing migration to narrowband technology well before January
    1, 2013.[^75] NPSTC has presented no new reason to revisit the 12.5
    kHz migration schedule. We continue to believe that licensees will
    have ample opportunity and incentive to convert to 12.5 kHz
    technology before or during the two-year interim period without
    jeopardizing interoperability.

# procedural matters

## Regulatory Flexibility Act Analysis

21. As required by Section 603 of the Regulatory Flexibility Act (RFA),
    5 U.S.C. § 604, the Commission has prepared a Final Regulatory
    Flexibility Analysis of the possible impact of the rule changes
    contained in this *Third Report and Order* on small entities. The
    Final Regulatory Flexibility Act analysis is set forth in Appendix
    C, *infra*. The Commission's Consumer Information Bureau, Reference
    Information Center, will send a copy of this *Third Report and
    Order*, including the Final Regulatory Flexibility Act Analysis, to
    the Chief Counsel for Advocacy of the Small Business Administration.

## Paperwork Reduction Act of 1995 Analysis

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

## Congressional Review Act Analysis

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

## Further Information

24. For further information concerning this *Third Report and Order*,
    contact Mel Spann, Mobility Division, Wireless Telecommunications
    Bureau, Federal Communications Commission, Washington, D.C. 20554,
    at (202) 418-0680, TTY (202) 418-7233, via e-mail at
    <Melvin.Spann@fcc.gov>, or via U.S. Mail at Federal Communications
    Commission, Wireless Telecommunications Bureau, 445 12th Street,
    S.W., Washington, D.C. 20554.

25. Alternative formats (computer diskette, large print, audio cassette,
    and Braille) are available to persons with disabilities by sending
    an e-mail to <FCC504@fcc.gov> or calling the Consumer and
    Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432.
    This *Third Report and Order* can be downloaded at
    <http://wireless.fcc.gov/releases.html#orders>.

# oRDERING cLAUSES

26. Accordingly, pursuant to Sections 1, 2, 4(i), 301, 302, and 303 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
    154(i), 301, 302, 303, and Sections 1.421 and 1.425 of the
    Commission's Rules, 47 C.F.R. §§ 1.421, 1.425, IT IS ORDERED that
    the *Third Report and Order* is hereby ADOPTED.

27. IT IS FURTHER ORDERED that Part 90 of the Commission's Rules IS
    AMENDED as set forth in Appendix B, and that these Rules shall be
    effective \[30 days after publication in the Federal Register\].

28. IT IS FURTHER ORDERED that the stay of the deadline in 47 C.F.R. §
    90.203(j)(4) and (j)(5), *see* FCC 04-292, 69 Fed. Reg. 34666, SHALL
    EXPIRE \[30 days after publication in the Federal Register\].

29. IT IS FURTHER ORDERED that the Commission's Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Third Report and Order*, including the Final Regulatory Flexibility
    Analysis, to the Chief Counsel for Advocacy of the U.S. Small
    Business Administration.

30. IT IS FURTHER ORDERED that this proceeding is TERMINATED.

> Federal Communications Commission
>
> Marlene H. Dortch
>
> Secretary

**Appendix A**

**Petition to Defer and Comments**

**Petition to Defer**

EF Johnson Company, Kenwood U.S.A. Corporation (Kenwood), and Motorola,
Inc. (Motorola)

**Comments to the *Second Further Notice***

Association of American Railroads (AAR)

Association of Public-Safety Communications Officials--International,
Inc. (APCO), International Association of Fire Chiefs, Inc. and the
International Municipal Signal Association (IAFC/IMSA), International
Association of Chiefs of Police (IACP), Major Cities Chiefs Association
(MCCA), National Sheriffs' Association (NSA), Major County Sheriffs'
Association (MCSA), and National Public Safety Telecommunications
Council (NPSTC) (collectively, APCO et al.)

Federal Law Enforcement Wireless Users Group (FLEWUG)

Industrial Telecommunications Association (ITA)

Land Mobile Communications Council (LMCC)

Motorola

Private Wireless Mining Coalition (Coalition)

Tait North America, Inc. (TAIT)

**Reply Comments to the *Second Further Notice***

LMCC

**Comments to the *Third Further Notice***

Enterprise Wireless Alliance (EWA)

Icom America, Inc. and Icom, Inc. (Icom)

Kenwood U.S.A. Corporation, Communications Division (Kenwood)

LMCC

M/A-COM

Motorola

National Public Safety Telecommunications Council (NPSTC)

**Reply Comments to the *Third Further Notice***

Icom

Motorola

NPSTC

**Other Relevant Filings**:

NPSTC Letter to Michael Wilhelm, Chief, Public Safety and Critical
Infrastructure, Wireless Telecommunications Bureau, dated Sept. 19, 2005

**Appendix B**

**Final Rules**

Part 90 of Title 47 of the Code of Federal Regulations is amended as
follows:

PART 90---PRIVATE LAND MOBILE RADIO SERVICES

1.  The authority citation for Part 90 continues to read as follows:

AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7).

2.  Section 90.203 is amended by removing paragraphs (j)(6), (j)(6)(i),
    (j)(6)(ii), and (j)(6)(iii); redesignating paragraphs (j)(7)-(11) as
    (j)(6)-(10); and revising paragraphs (j)(4) and (j)(5) to read as
    follows:

**§ 90.203 Certification required.**

\* \* \* \* \*

\(j\) \* \* \* \* \*

\(4\) Applications for part 90 certification of transmitters designed to
operate on frequencies in the 150.8-162.0125 MHz, 173.2-173.4 MHz,
and/or 421-512 MHz bands, received on or after January 1, 2011, except
for hand-held transmitters with an output power of two watts or less,
will only be granted for equipment with the following channel
bandwidths:

\* \* \* \* \*

\(5\) Applications for part 90 certification of transmitters designed to
operate on frequencies in the 150.8-162.0125 MHz, 173.2-173.4 MHz,
and/or 421-512 MHz bands, received on or after January 1, 2011, must
include a certification that the equipment meets a spectrum efficiency
standard of one voice channel per 6.25 kHz of channel bandwidth.
Additionally, if the equipment is capable of transmitting data, has
transmitter output power greater than 500 mW, and has a channel
bandwidth of more than 6.25 kHz, the equipment must be capable of
supporting a minimum data rate of 4800 bits per second per 6.25 kHz of
channel bandwidth.

\* \* \* \* \*

**Appendix C**

**Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act (RFA),[^76] an Initial
    Regulatory Flexibility Analysis (IRFA) was incorporated in the
    *Third Memorandum Opinion and Order and Third Further Notice of
    Proposed Rule Making and Order* (*Third MO&O and Third Further
    Notice*)[^77] in WT Docket 99-87. The Commission sought written
    public comment on the proposals in the *Third Further Notice*. In
    view of the fact that we have adopted further rule amendments in
    this *Third Report and Order,* we have included this Final
    Regulatory Flexibility Analysis (FRFA). This Final Regulatory
    Flexibility Analysis (FRFA) conforms to the RFA.[^78]

# Reason for, and Objectives of, the *Third Report and Order*

3.  This *Third Report and Order* is needed to address comments in
    response to the *Third Further Notice of Proposed Rule Making*[^79]
    in WT Docket 99-87 concerning a contemplated mandatory transition to
    6.25 kHz technology for Private Land Mobile Radio (PLMR) users. In
    this *Third Report and Order*, we change the implementation date of
    47 C.F.R. § 90.203(j)(4)-(5) from January 1, 2005, to January
    1, 2011. The rule change reduces burdens on equipment manufacturers
    and furthers the Commission's objectives to encourage the
    development and use of increasingly spectrally efficient technology.
    Once the rule change becomes effective, applications for equipment
    certification received on or after January 1, 2011, will be granted
    only if the equipment either (1) is capable of operating on 6.25 kHz
    channels, or (2) meets a narrowband efficiency standard, *i.e.*, one
    channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 kHz
    (data).

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

4.  No comments or reply comments were filed in direct response to the
    IRFA. The Commission has, however, reviewed the general comments
    that may impact small businesses. Much of the potential impact on
    small businesses arose from the previous requirement that
    applications for equipment certification received on or after
    January 1, 2005, will be granted only if the equipment either (1) is
    capable of operating on 6.25 kHz channels, or (2) meets a narrowband
    efficiency standard, *i.e.*, one channel per 6.25 kHz (voice) or
    4800 bits per second per 6.25 kHz (data). The burdens and hardships
    associated with equipment manufacturers meeting this requirement
    were cited in opposition to this requirement.

# Description and Estimate of the Number of Small Entities to Which the Rules 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 rules adopted. The RFA generally defines the term
    "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small governmental
    jurisdiction."[^80] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^81] A small business concern is one which: (1) is
    independently owned and operated; (2) is not dominant in its field
    of operation; and (3) satisfies any additional criteria established
    by the Small Business Administration (SBA).[^82] Nationwide, there
    are a total of approximately 22.4 million small businesses,
    according to SBA data.[^83] A "small organization" is generally "any
    not-for-profit enterprise which is independently owned and operated
    and is not dominant in its field."[^84] Nationwide, as of 2002,
    there were approximately 1.6 million small organizations.[^85] The
    term "small governmental jurisdiction" is defined generally as
    "governments of cities, towns, townships, villages, school
    districts, or special districts, with a population of less than
    fifty thousand."[^86] Census Bureau data for 2002 indicate that
    there were 87,525 local governmental jurisdictions in the United
    States.[^87] We estimate that, of this total, 84,377 entities were
    "small governmental jurisdictions."[^88] Thus, we estimate that most
    governmental jurisdictions are small.

6.  The rule change effectuated by this *Third Report and Order* applies
    to manufacturers of radio equipment designed to operate on private
    land mobile frequencies in the 150-174 MHz and 421-512 MHz bands.
    The rule change and decisions herein also have a nominal, merely
    indirect application to users of Public Safety Radio Pool services
    and private radio licensees that are regulated under Part 90 of the
    Commission's rules.

7.  *Equipment Manufacturers*. We anticipate that at least six radio
    equipment manufacturers will be affected by our decisions in this
    proceeding. The Census Bureau defines this category as follows:
    "This industry comprises establishments primarily engaged in
    manufacturing radio and television broadcast and wireless
    communications equipment. Examples of products made by these
    establishments are: transmitting and receiving antennas, cable
    television equipment, GPS equipment, pagers, cellular phones, mobile
    communications equipment, and radio and television studio and
    broadcasting equipment."[^89] The SBA has developed a small business
    size standard for Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing, which is: all such firms
    having 750 or fewer employees.[^90] According to Census Bureau data
    for 2002, there were a total of 1,041 establishments in this
    category that operated for the entire year.[^91] Of this total,
    1,010 had employment of under 500, and an additional 13 had
    employment of 500 to 999.[^92] Thus, under this size standard, the
    majority of firms can be considered small.

8.  *Public safety services and Governmental entities*. Public safety
    radio services include police, fire, local governments, forestry
    conservation, highway maintenance, and emergency medical
    services.[^93] The SBA rules contain a definition for small
    radiotelephone (wireless) companies that encompass business entities
    engaged in radiotelephone communications employing no more that
    1,500 persons.[^94] There are a total of approximately 127,540
    licensees within these services. Governmental entities as well as
    private businesses comprise the licensees for these services. The
    RFA also includes small governmental entities as a part of the
    regulatory flexibility analysis.[^95] As noted, under the RFA, the
    term "small governmental jurisdiction" is defined generally as
    "governments of cities, towns, townships, villages, school
    districts, or special districts, with a population of less than
    fifty thousand."[^96] Census Bureau data for 2002 indicate that
    there were 87,525 local governmental jurisdictions in the United
    States.[^97] We estimate that, of this total, 84,377 entities were
    "small governmental jurisdictions."[^98] Thus, we estimate that most
    governmental jurisdictions are small.

9.  *Estimates for PLMR Licensees*. Private land mobile radio systems
    serve an essential role in a vast range of industrial, business,
    land transportation, and public safety activities. These radios are
    used by companies of all sizes operating in all U.S. business
    categories. Because of the vast array of PLMR users, the Commission
    has not developed a definition of small entities specifically
    applicable to PLMR users, nor has the SBA developed any such
    definition. The SBA rules do, however, contain a definition for
    small radiotelephone (wireless) companies.[^99] Included in this
    definition are business entities engaged in radiotelephone
    communications employing no more that 1,500 persons.[^100] The SBA
    has developed a small business size standard for wireless firms
    within the two broad economic census categories of \"Paging\"[^101]
    and \"Cellular and Other Wireless Telecommunications.\"[^102] Under
    both categories, the SBA deems a wireless business to be small if it
    has 1,500 or fewer employees. For the census category of Paging,
    Census Bureau data for 2002 show that there were 807 firms in this
    category that operated for the entire year.[^103] Of this total, 804
    firms had employment of 999 or fewer employees, and three firms had
    employment of 1,000 employees or more.[^104] Thus, under this
    category and associated small business size standard, the majority
    of firms can be considered small. For the census category of
    Cellular and Other Wireless Telecommunications, Census Bureau data
    for 2002 show that there were 1,397 firms in this category that
    operated for the entire year.[^105] Of this total, 1,378 firms had
    employment of 999 or fewer employees, and 19 firms had employment of
    1,000 employees or more.[^106] Thus, under this second category and
    size standard, the majority of firms can, again, be considered
    small. Thus, under this size standard, the majority of firms can be
    considered small. 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\'s
    fiscal year 1994 annual report indicates that, at the end of fiscal
    year 1994, there were 1,101,711 licensees operating 12,882,623
    transmitters in the PLMR bands below 512 MHz.[^107]

# Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

10. Equipment manufacturers need to make note of the new implementation
    date of January 1, 2011, for 47 C.F.R. § 90.203(j)(4)-(5) of the
    Commission's Rules, as established in this *Third Report and Order*.
    Applications for equipment certification and received on or after
    January 1, 2011, will be granted only if the equipment either (1) is
    capable of operating on 6.25 kHz channels, or (2) meets a narrowband
    efficiency standard, i.e., one channel per 6.25 kHz (voice) or 4800
    bits per second per 6.25 kHz (data). We believe that both small and
    large entities will encounter the same proportional costs to comply
    with these requirements.

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

11. The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its approach, which may include
    the following four alternatives (among others): "(1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance and reporting requirements under the rule for such small
    entities; (3) the use of performance rather than design standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for such small entities."[^108]

12. The only rule change we adopt herein is to delay the implementation
    date of our certification requirements from January 1, 2005, to
    January 1, 2011. Applications for equipment certification received
    on or after January 1, 2011, will be granted only if the equipment
    either (1) is capable of operating on 6.25 kHz channels, or (2)
    meets a narrowband efficiency standard, *i.e.*, one channel per 6.25
    kHz (voice) or 4800 bits per second per 6.25 kHz (data). This rule
    change reduces the impact on equipment manufacturers of the prior
    rule, which required compliance sooner. We delayed the
    implementation date because a majority of commenters believed that
    enforcing an equipment authorization cut-off now would place onerous
    burdens on manufacturers. We anticipate that small licensees will
    experience little impact as a result of this rule change. By 2011,
    licensees in the market for new equipment will have a choice between
    12.5 kHz-capable and 6.25 kHz-capable equipment.

13. We investigated alternatives to the January 1, 2011, implementation
    date of our certification requirements, including elimination of the
    requirements, as requested by some commenters. We rejected earlier
    dates because they might not allow enough time for 6.25 kHz
    standards to be finalized. We believe that earlier dates would not
    provide significant relief to equipment manufacturers, and that they
    would incur excessive costs to meet our certification requirements.
    Next, we considered dates after 2011, as well as eliminating our
    6.25 kHz equipment certification requirements completely. While we
    realize that these options would further minimize the economic
    impact on equipment manufacturers, we rejected these options they
    would excessively delay our objective to encourage the development
    and use of spectrally efficient technology.

# Report to Congress

14. The Commission will send a copy of this *Third Report and Order*,
    including this FRFA, in a report to be sent to Congress pursuant to
    the Congressional Review Act, *see* 5 U.S.C. § 801(a)(1)(A). In
    addition, the Commission will send a copy of the *Third Report and
    Order,* including this FRFA, to the Chief Counsel for Advocacy of
    the Small Business Administration. A copy of the *Third Report and
    Order* and FRFA (or summaries thereof) will also be published in the
    Federal Register. *See* 5 U.S.C. § 604(b).

[^1]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, *Second Report and Order and Second
    Further Notice of Proposed Rule Making and Order,* WT Docket No.
    99-87, RM-9332, 18 FCC Rcd 3034 (2003). The *Second Report and Order
    and* *Second Further Notice* was published in the Federal Register
    on July 17, 2003. 68 Fed. Reg. 42296, 42337 (2003).

[^2]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, *Third Memorandum Opinion and
    Order*, *Third Further Notice of Proposed Rule Making and Order,* WT
    Docket No. 99-87, RM-9332, 19 FCC Rcd 25045 (2004). The *Third MO&O
    and* *Third Further Notice and* *Order* was published in the Federal
    Register on June 15, 2004. 69 Fed. Reg. 34666, 34669 (2004).

[^3]: Joint Petition of E.F. Johnson Company, Kenwood U.S.A. (Kenwood)
    and Motorola, Inc. (Motorola) to Defer Enforcement of Section
    90.203(j)(5) of the Commission's Rules, WT Docket No. 99-87, RM-9332
    (filed July 14, 2004) (Petition to Defer).

[^4]: 47 C.F.R. § 90.203(j)(4)-(5).

[^5]: *See* Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them,
    *Report and Order and Further Notice of Proposed Rule Making,* PR
    Docket No. 92-235, 10 FCC Rcd 10076, 10077 ¶ 1 (1995) (*Refarming
    Report and Order*).

[^6]: *Id*. at 10081 ¶ 7.

[^7]: *Id*. at 10099-100 ¶¶ 38-40; 47 C.F.R. § 90.203(j)(2).

[^8]: *See* 47 C.F.R. § 90.203(j)(4)-(5) (2002).

[^9]: *See Refarming Report and Order*, 10 FCC Rcd at 10100 ¶ 40.

[^10]: *Id*.

[^11]: *Second Report and Order*, 18 FCC Rcd at 3038 ¶ 12.

[^12]: By *Order* released December 3, 2003, the Commission determined
    that good cause had been shown to stay the January 13, 2004 date
    pending Commission consideration of the petitions for
    reconsideration of the *Second Report and Order*. Implementation of
    Sections 309(j) and 337 of the Communications Act of 1934 as
    Amended; Promotion of Spectrum Efficient Technologies on Certain
    Part 90 Frequencies, *Order*, WT Docket No. 99-87, RM-9332, 18 FCC
    Rcd 25491 (2003).

[^13]: The Commission also stayed this January 13, 2004 date. *Id*.

[^14]: *Second Report and Order*, 18 FCC Rcd at 3038 ¶ 12*.*

[^15]: *Second Further Notice*, 18 FCC Rcd at 3045 ¶ 27.

[^16]: *Id.* (citing *Refarming Report and Order*, 10 FCC Rcd at 10095 ¶
    28).

[^17]: *Id*.

[^18]: *Third MO&O*, 19 FCC Rcd at 25047 ¶ 2.

[^19]: *Third Further Notice*, 19 FCC Rcd at 25062 ¶ 40.

[^20]: *Id.*; *see also* Petition to Defer at 2.

[^21]: *Third Further Notice*, 19 FCC Rcd at 25062 ¶ 40.

[^22]: *Id*.

[^23]: *Id*. at 25062 ¶ 41.

[^24]: *See*, *e.g*., Industrial Telecommunications Association (ITA)
    Comments to the *Second Further Notice* at 1, 5 (citing lack of
    availability of equipment); Private Wireless Mining Coalition
    Comments to the *Second Further Notice* at 5-6; Tait North America,
    Inc. Comments to the *Second Further Notice* at 4-5. We note that
    ITA subsequently consolidated its operations into the Enterprise
    Wireless Alliance (EWA). *See* Mark E. Crosby, *Letter*, 20 FCC Rcd
    8552 (WTB PSCID 2005).

[^25]: *See*, *e.g*., Association of Public-Safety Communications
    Officials -- International, Inc. (APCO) Comments to the *Second
    Further Notice* at 2; Land Mobile Communications Council (LMCC)
    Comments to the *Second Further Notice* at 2-3; ITA Comments to the
    *Second Further Notice* at 4.

[^26]: Motorola Comments to the *Second Further Notice* at 1.

[^27]: Project 25 is the standard for interoperable, digital, two-way
    wireless communications products and systems.

[^28]: FDMA refers to the method of allocating a discrete amount of
    frequency bandwidth to each user to permit many simultaneous
    conversations. *See* Harry Newton, *Newton's Telecom Dictionary*,
    327 (San Francisco: CMP Books, 2004).

[^29]: Motorola Comments to the *Second Further Notice* at 7.

[^30]: *See* ITA Comments to the *Second Further Notice* at 4-5; LMCC
    Reply Comments to the *Second Further Notice* at 4; Federal Law
    Enforcement Wireless Users Group *Ex Parte* Comments to the *Second
    Further Notice* at 6.

[^31]: TDMA is used to allocate a discrete amount of frequency bandwidth
    to each user to permit many simultaneous conversations. However,
    each user is assigned a specific timeslot for transmission. *See*
    Harry Newton, *Newton's Telecom Dictionary*, 814 (San Francisco: CMP
    Books, 2004).

[^32]: APCO Comments to the *Second Further Notice* at 2.

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

[^34]: LMCC Comments to the *Second Further Notice* at 5.

[^35]: APCO Comments to the *Second Further Notice* at 4.

[^36]: American Association of Railroads Comments to the *Second Further
    Notice* at 5.

[^37]: NPSTC Comments to the *Third Further Notice* at 3-4.

[^38]: *Id*. at 4.

[^39]: *Id*. at 6.

[^40]: *Id*. at 7.

[^41]: Icom Comments to the *Third Further Notice* at 5; *accord*
    Motorola Comments to the *Third Further Notice* at 2.

[^42]: Motorola Comments to the *Third Further Notice* at 3, Kenwood
    Comments to the *Third Further Notice* at 5, Motorola Reply Comments
    to the *Third Further Notice* at 3.

[^43]: M/A-COM Comments to the *Third Further Notice* at 1-2.

[^44]: NPSTC Comments to the *Third Further Notice* at 7.

[^45]: LMCC Comments to the *Third Further Notice* at 1; Kenwood
    Comments to the *Third Further Notice* at 7; Motorola Comments to
    the *Third Further Notice* at 1; EWA Comments to the *Third Further
    Notice* at 1.

[^46]: LMCC Comments to the *Third Further Notice* at 4; Comments to the
    *Third Further Notice* at 3; Motorola Comments to the *Third Further
    Notice* at 3; EWA Comments to the *Third Further Notice* at 5-6;
    Motorola Reply Comments to the *Third Further Notice* at 2.

[^47]: Petition for Reconsideration and Clarification of Motorola, Inc.,
    WT Docket No. 99-87, RM-9332 (filed August 18, 2003) at 11.

[^48]: *Second Report and Order*, 18 FCC Rcd at 3038 ¶ 12.

[^49]: Icom Reply Comments to the *Third Further Notice* at 4-5.

[^50]: Icom Comments to the *Third Further Notice* at 6.

[^51]: LMCC Comments to the *Third Further Notice* at 5.

[^52]: *See* The Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Communication Requirements Through the Year 2010, *Fifth Memorandum
    Opinion and Order, Sixth Report and Order, and Seventh Notice of
    Proposed Rule Making*, WT Docket No. 96-86, 20 FCC Rcd 831, 838 ¶ 13
    (2005).

[^53]: LMCC Comments to the *Third Further Notice* at 5.

[^54]: NPSTC Comments to the *Third Further Notice* at 8; NPSTC Reply
    Comments to the *Third Further Notice* at 3.

[^55]: M/A-COM Comments to the *Third Further Notice* at 4-5.

[^56]: Petition for Reconsideration of the *Second Report and Order*
    filed by M/A-COM, Inc., WT Docket 99-87, RM-9332 (filed Aug. 18,
    2003) at 14-17.

[^57]: M/A-COM Comments to the *Third Further Notice* at 4-5.

[^58]: *Id*. at 8.

[^59]: *Id*. Also see *Second Report and Order*, 18 FCC Rcd at 3039 ¶
    13. *But see* Motorola Reply Comments to the *Third Further Notice*
    at 4 (arguing that M/A-COM's proposal lacks sufficient detail to
    merit consideration at this time).

[^60]: Icom Reply Comments to the *Third Further Notice* at 7.

[^61]: NPSTC Reply Comments to the *Third Further Notice* at 3-4.

[^62]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended; Promotion of Spectrum
    Efficient Technologies on Certain Part 90 Frequencies; Establishment
    of Public Service Radio Pool in the Private Mobile Frequencies Below
    800 MHz; Petition for Rule Making of the American Mobile
    Telecommunications Association, *Report and Order and Further Notice
    of Proposed Rule Making*, WT Docket No. 99-87, RM-9332, RM-9405,
    RM-9705, 15 FCC Rcd 22709, 22757-59 ¶¶ 104-07 (1999). The Commission
    concluded that it was not advisable to revisit the licensing scheme
    in light of commenters' concerns that the forced migration of
    incumbents would cause harmful disruptions in service as well as
    severe levels of interference. *Id*. at 22758-59 ¶¶ 106-07.

[^63]: Motorola *Third Further Notice* Reply Comments at 5; *see*
    *Refarming Report and Order*, 10 FCC Rcd at 10094 ¶ 26; *see also*
    Replacement of Part 90 by Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them,
    *Memorandum Opinion and Order*, PR Docket No. 92-235, 11 FCC Rcd
    17676, 17682 ¶ 11 (1996) (*Refarming MO&O*).

[^64]: *See Refarming Report and Order*, 10 FCC Rcd at 10088 ¶¶ 17-18.

[^65]: *Id*. at 10094 ¶ 26.

[^66]: *See Refarming MO&O*, 11 FCC Rcd at 17682 ¶ 11.

[^67]: Motorola *Third Further Notice* Reply Comments at 5.

[^68]: NPSTC Comments to the *Third Further Notice* at 4.

[^69]: *Id*. at 4-5.

[^70]: *See* 47 C.F.R. §§ 90.203(j)(11), 90.209(b)(6)(ii) (effective
    July 15, 2005).

[^71]: NPSTC Comments to the *Third Further Notice* at 5.

[^72]: *Id*.

[^73]: *Id*. at 6.

[^74]: *Third MO&O*, 19 FCC Rcd at 25053-56 ¶¶ 15-23.

[^75]: *Id*. at 25055 ¶ 22.

[^76]: *See* U.S.C. § 603. The RFA, *see* 5 U.S.C. § § 601-612, 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).

[^77]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, *Third Memorandum Opinion and Order
    and Third Further Notice of Proposed Rulemaking and Order,* WT
    Docket No. 99-87, RM-9332, 19 FCC Rcd 25045 (2004). The *Third MO&O
    and* *Third Further Notice and* *Order* was published in the Federal
    Register on June 15, 2004. 69 Fed. Reg. 34666, 34669 (2004).

[^78]: *See* 5 U.S.C. § 604.

[^79]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended; Promotion of Spectrum Efficient Technologies
    on Certain Part 90 Frequencies, *Second Report and Order and Second
    Further Notice of Proposed Rulemaking and Order,* WT Docket No.
    99-87, RM-9332, 18 FCC Rcd 3034 (2003). The *Second Report and Order
    and* *Second Further Notice* was published in the Federal Register
    on July 17, 2003. 68 Fed. Reg. 42296, 42337 (2003).

[^80]: *See* 5 U.S.C. § 601(6).

[^81]: 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 which are appropriate to the
    activities of the agency and publishes such definition(s) in the
    Federal Register.

[^82]: Small Business Act, 5 U.S.C. § 632 (1996).

[^83]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^84]: 5 U.S.C. § 601(4).

[^85]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^86]: 5 U.S.C. § 601(5).

[^87]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^88]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^89]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    <http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342>.

[^90]: 13 C.F.R. § 121.201, NAICS code 334220.

[^91]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005);
    [http://factfinder.census.gov](http://factfinder.census.gov/). The
    number of "establishments" is a less helpful indicator of small
    business prevalence in this context than would be the number of
    "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^92]: *Id*. An additional 18 establishments had employment of 1,000 or
    more.

[^93]: ^?^ With the exception of the special emergency service, these
    services are governed by Subpart B of Part 90 of the Commission\'s
    rules. 47 C.F.R. §§ 90.15 through 90.27. The police service includes
    26,608 licensees that serve state, county and municipal enforcement
    through telephony (voice), telegraphy (code) and teletype and
    facsimile (printed material). The fire radio service includes 22,677
    licensees comprised of private volunteer or professional fire
    companies as well as units under governmental control. The local
    government service that is presently comprised of 40,512 licensees
    that are state, county or municipal entities that use the radio for
    official purposes not covered by other public safety services. There
    are 7,325 licensees within the forestry service which is comprised
    of licensees from state departments of conservation and private
    forest organizations who set up communications networks among fire
    lookout towers and ground crews. The 9,480 state and local
    governments are licensed to highway maintenance service provide
    emergency and routine communications to aid other public safety
    services to keep main roads safe for vehicular traffic. The 1,460
    licensees in the Emergency Medical Radio Service (EMRS) use the 39
    channels allocated to this service for emergency medical service
    communications related to the actual delivery of emergency medical
    treatment. 47 C.F.R. §§ 90.15 through 90.27. The 19,478 licensees in
    the special emergency service include medical services, rescue
    organizations, veterinarians, handicapped persons, disaster relief
    organizations, school buses, beach patrols, establishments in
    isolated areas, communications standby facilities and emergency
    repair of public communication facilities. 47 C.F.R. §§ 90.33
    through 90.55.

[^94]: *See* 13 C.F.R. § 121.201 (SIC Code 4812).

[^95]: *See* 5 U.S.C. § 601(5) (including cities, counties, towns,
    townships, villages, school districts, or special districts).

[^96]: 5 U.S.C. § 601(5).

[^97]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^98]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^99]: *See* 13 C.F.R. § 121.201, NAICS code 517212.

[^100]: *Id.*

[^101]: 13 C.F.R. § 121.201, NAICS code 517211.

[^102]: ^?^ 13 C.F.R. § 121.201, NAICS code 517212.

[^103]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^104]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^105]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^106]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^107]: *See* Federal Communications Commission, 60th Annual Report,
    Fiscal Year 1994 at 120-121.

[^108]: 5 U.S.C. § 603(c)(1) -- (c)(4).