**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 06-150         |
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| Service Rules for the 698-746,   | ** | CC Docket No. 94-102         |
| 747-762                          |    |                              |
|                                  | *  | WT Docket No. 01-309         |
| and 777-792 MHz Bands            | *) |                              |
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| Revision of the Commission's     |    |                              |
| Rules to Ensure Compatibility    | *  |                              |
| with Enhanced 911 Emergency      | *) |                              |
| Calling Systems                  | ** |                              |
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| Section 68.4(a) of the           | *  |                              |
| Commission's Rules Governing     | *) |                              |
| Hearing Aid-Compatible           | ** |                              |
| Telephones                       |    |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF PROPOSED RULE MAKING, FOURTH FURTHER NOTICE OF PROPOSED RULE
MAKING, AND SECOND FURTHER NOTICE OF PROPOSED RULE MAKING**

**Adopted: August 3, 2006 Released: August 10, 2006**

**Comment Date: (30 days after publication in the Federal Register)**

**Reply Comment Date: (60 days after publication in the Federal
Register)**

By the Commission: Chairman Martin; and Commissioners Copps, Adelstein,
Tate and McDowell issuing separate statements.

Table of Contents

Heading Paragraph \#

I. iNTRODUCTION 1

II\. BACKGROUND 3

III\. discussion 25

A. Size of Service Areas 27

1\. Need for Additional Access to Spectrum Licensed over Small Service
Areas 28

2\. Optimal Service Area Size(s) for Remaining Licenses 33

3\. Spectrum Block(s) Suitable for Potential Reassignment 42

B. Size of Spectrum Blocks 49

C. Facilitating Access to Spectrum and Provision of Service to Consumers
60

1\. Performance Requirements 61

2\. Facilitating Access to Spectrum in the Secondary Market 70

3\. Facilitating Access to Spectrum and the Provision of Service to
Tribal Lands 73

D. Criteria for Renewal 80

E. Length of License Terms 84

F. Power Limits and Related Requirements 90

G. 911/E911 and Hearing Aid-Compatible Wireless Handsets 99

IV\. procedural matters 107

A. Regulatory Flexibility Act 107

B. Paperwork Reduction Act of 1995 108

C. Other Procedural Matters 109

1\. *Ex Parte* Presentations 109

2\. Comment Filing Procedures 110

3\. Accessible Formats 113

V. ordering clauses 114

APPENDIX -- Initial Regulatory Flexibility Analysis

# iNTRODUCTION

1.  In this Notice of Proposed Rulemaking ("Notice"), we seek comment on
    possible changes to the Part 27 service rules governing wireless
    licenses in the 698-746, 747-762, and 777-792 MHz bands (herein, the
    "700 MHz Band") currently occupied by television (TV) broadcasters
    and being made available for new services as a result of the digital
    television (DTV) transition. More than four years have passed since
    the Commission adopted its initial band plans and service rules
    governing these licenses.[^1] During that time, Congress enacted
    significant statutory changes to the DTV transition in the Digital
    Television and Public Safety Act of 2005 ("DTV Act").[^2] The DTV
    Act could affect the Commission's existing regulatory approach to
    the 698-806 MHz Band, which had envisioned "early" recovery of TV
    Channels 60-69 ("Upper 700 MHz Band"),[^3] but had anticipated
    recovery of TV Channels 52-59 ("Lower 700 MHz Band") after the DTV
    transition was complete.[^4] In addition, during the past four
    years, U.S. consumers have been introduced to a variety of
    innovative wireless services and technologies at the same time that
    the number of subscribers for mobile telephony services has
    increased by approximately 50 percent.[^5] We therefore are
    revisiting various of the Commission's earlier decisions regarding
    these 700 MHz Band licenses.[^6]

2.  In this Notice, we seek comment on potential changes to several of
    the Commission's initial determinations applicable to 700 MHz Band
    licenses. This includes licenses yet to be auctioned in 30 megahertz
    of spectrum in the Upper 700 MHz Band and in 30 megahertz of
    spectrum in the Lower 700 MHz Band, as well as licenses that already
    have been auctioned in 18 megahertz in the Lower 700 MHz Band. We
    first seek comment on possible revisions to the size of service
    areas for the unauctioned spectrum in the 700 MHz Band. We ask
    whether additional licenses should be created over service area
    sizes other than Economic Area Groupings (EAGs), including over
    small areas such as the 734 Cellular Market Areas (CMAs) composed of
    Metropolitan Statistical Areas (MSAs) and Rural Service Areas
    (RSAs).[^7] Second, we consider the possibility of revising the size
    and pairing of the 20-megahertz spectrum block in the Upper 700 MHz
    Band,[^8] including seeking comment on dividing it into blocks of
    smaller bandwidth. We also ask whether there should be any changes
    to the size and location of spectrum blocks in the Lower 700 MHz
    Band.[^9] Third, we seek comment on whether it would be appropriate
    to add or revise performance requirements and/or rules on spectrum
    access (*e.g.*, spectrum leasing, partitioning, *etc.*) in the
    secondary market to potentially promote construction in rural areas,
    as well as whether these policies should be tailored to promote
    service on tribal lands. Fourth, we seek comment on whether to amend
    existing rules, as they apply to these 700 MHz Band licensees,
    requiring demonstrations of "substantial service" for renewal
    applicants in comparative hearings.[^10] Fifth, we seek comment on
    possible revisions to the license terms for licensees, including
    whether to extend 700 MHz Band licenses beyond the 2015 date
    established previously. Sixth, we seek comment on whether the
    applicable power limits in these bands should be modified. Finally,
    in this Notice, as well as the Fourth Further Notice of Proposed
    Rulemaking and Second Further Notice of Proposed Rulemaking,[^11] we
    seek comment on our tentative conclusion that services provided in
    the 700 MHz Band, and in other bands subject to Part 27, including
    the Advanced Wireless Services in the 1710-1755 MHz and 2110-2155
    MHz bands ("AWS-1"),[^12] should be subject to requirements
    concerning 911 and enhanced 911 (collectively, "911/E911") and
    hearing aid-compatible handsets to the extent that they meet certain
    criteria, and on changes to the Commission's rules or industry
    standards related to implementing our tentative conclusion.

# BACKGROUND

3.  *Overview*. As background, we first briefly discuss the DTV
    transition, which has envisioned since at least 1997 the reclamation
    of the 698-806 MHz Band (Television Channels 52-69) for new uses,
    including commercial and public safety services. Then, we separately
    describe the Upper 700 MHz Band and Lower 700 MHz Band plans and
    size of service areas for geographic licensing. We next turn to the
    major technical and service rules in Part 27 that govern operations
    in both of these bands. We then discuss the Commission's
    requirements pertaining to 911/E911 and hearing aid-compatible
    handsets. Next, we describe recent filings that the Commission has
    received pertaining to the assignment of unauctioned licenses in the
    700 MHz Band.

4.  *DTV Transition and Reclamation of the 698-806 MHz Band.* In
    connection with the transition from analog television broadcasting
    to DTV, the 698-806 MHz Band will be available on a primary basis
    for new public safety and other wireless services once it is
    relinquished by broadcasters on TV Channels 52-69. Because DTV
    transmissions are more spectrally efficient than analog
    transmissions, only spectrum occupied currently by Channels 2-51
    (*i.e.*, the "core" TV broadcast spectrum) will be needed for
    broadcast television service after the DTV transition is complete.
    By the end of the transition, all analog television service will
    have terminated, and temporary DTV assignments on Channels 52-69
    will be relocated into the core TV channels.[^13] At the same time,
    the 698-806 MHz Band will be made available for new uses, including
    public safety, commercial, and other new radio services.[^14] The
    698-806 MHz Band is set forth in Table 1 below.

[**Table 1 -- 698-806 MHz Band**]{.underline}

698 746 764 776 794 806

  ----------------------------- ------------- -------- ------------ --------
                                              Public                Public
                                              Safety                Safety

  ----------------------------- ------------- -------- ------------ --------

Lower 700 MHz Band Upper 700 MHz Band

(Channels 52-59) (Channels 60-69)

5.  Prior to passage of the DTV Act early this year, the Commission had
    addressed the reallocation of the 698-806 MHz Band in separate
    proceedings due to different statutory requirements.[^15] With
    respect to the 60 megahertz of spectrum in the Upper 700 MHz Band
    (746-806 MHz), the Balanced Budget Act of 1997 ("Balanced Budget
    Act") added Section 337 to the Communications Act of 1934, as
    amended ("Communications Act" or "Act"), requiring the Commission to
    reallocate this band no later than January 1, 1998.[^16]
    Specifically, the Balanced Budget Act mandated that the Commission
    allocate 24 megahertz of spectrum for public safety services and the
    remaining 36 megahertz of spectrum for commercial use to be assigned
    by competitive bidding.[^17] As a result, in late 1997, the
    Commission allocated the 764-776 MHz (Channels 63 and 64) and
    794-806 MHz (Channels 68 and 69) portions of the Upper 700 MHz Band
    on a primary basis to fixed and mobile public safety radio services,
    and it allocated the remaining 746-764 MHz (Channels 60-62) and
    776-794 MHz (Channels 65-67) portions on a primary basis to fixed,
    mobile, and broadcast services for new commercial use.[^18]

6.  In the Balanced Budget Act, Congress recognized that additional
    spectrum beyond the Upper 700 MHz Band could be recovered from
    analog TV broadcasters, and it directed the Commission to "reclaim
    and organize" such spectrum "in a manner consistent with the
    objectives" of Section 309(j)(3) of the Act.[^19] While Congress did
    not specify the amount of spectrum to be reclaimed beyond the Upper
    700 MHz Band, the Commission determined that all broadcasters using
    digital transmission systems could be accommodated in core TV
    Channels 2-51. As a result, the 48 megahertz of spectrum in the
    Lower 700 MHz Band (698-746 MHz) would become available for new
    services through competitive bidding.[^20] While the end of the DTV
    transition was originally targeted for December 31, 2006, the
    Communications Act required (prior to the DTV Act and Auction Reform
    Act of 2002[^21]) the Commission to auction excess television
    spectrum by September 30, 2002.[^22] As a result, in late 2001, the
    Commission adopted an order allocating the entire Lower 700 MHz Band
    (Channels 52-59) on a primary basis to new fixed, mobile, and
    broadcast services.[^23]

7.  Under this statutory scheme for the Upper and Lower 700 MHz
    Bands,[^24] new wireless licenses had to be assigned and revenues
    from competitive bidding reported to Congress prior to September 30,
    2002, despite the fact that TV broadcasters could continue to
    operate on Channels 52-69 until the indefinite end of the DTV
    transition. Although analog broadcasters were required to cease
    operation by December 31, 2006, the Commission was required to
    extend the end of the transition in certain circumstances.[^25]
    Under the Communications Act, the Commission was required to grant
    extensions at the request of individual broadcast licensees on a
    market-by-market basis if one or more of the four largest network
    stations or affiliates were not broadcasting in digital,
    digital-to-analog converter technology was not generally available,
    or 15 percent or more of television households were not receiving a
    digital signal.[^26]

8.  In 2002, Congress eliminated the September 30, 2002 auction deadline
    for the Upper and Lower 700 MHz Bands and provided the Commission
    with a level of discretion on the timing and deadlines for issuing
    licenses through competitive bidding.[^27] The Auction Reform Act of
    2002 directed the Commission to delay competitive bidding for the 30
    megahertz of remaining Upper 700 MHz Band commercial spectrum,[^28]
    as well as for 30 of the 48 megahertz of Lower 700 MHz Band
    spectrum. The Auction Reform Act of 2002 mandated, however, that the
    Commission proceed with competitive bidding for 18 megahertz of
    spectrum in the Lower 700 MHz Band.[^29]

9.  In passing the DTV Act early this year, Congress set forth a number
    of changes to the reclamation of the 108 megahertz of spectrum in
    the 698-806 MHz Band. Most importantly, its provisions accelerate
    the DTV transition by providing a date certain for the end of the
    transition. Specifically, the DTV Act amends Section 309(j)(14) of
    the Communications Act to eliminate December 31, 2006 and establish
    February 17, 2009 as a new firm deadline for the end of the DTV
    transition.[^30] In so doing, Congress eliminated the provisions
    authorizing market-specific extensions of the DTV transition.[^31]
    Congress also unified the timing of auctions for the assignment of
    remaining spectrum from TV Channels 52-69. The Communications Act
    now requires the Commission to commence the auction of recovered
    analog broadcast spectrum no later than January 28, 2008[^32] and
    deposit the proceeds of such auction in the Digital Television
    Transition and Public Safety Fund no later than June 30, 2008.[^33]
    These statutory changes effectively clear the spectrum in the
    698-806 MHz Band for the period following the firm deadline of
    February 17, 2009,[^34] and as a result, eliminate uncertainty
    regarding the timeframe when this spectrum will be fully available
    for public safety, commercial, and other wireless services.

10. *Upper 700 MHz Band Plan and Service Areas*. Table 2 below depicts
    the current band plan and service area sizes adopted for the Upper
    700 MHz Band in January 2000.[^35] The Commission has already held
    auctions for Guard Band licenses in Blocks A and B.[^36] The Auction
    Reform Act directed the Commission to delay the auction of licenses
    for the remaining commercial spectrum in the Upper 700 MHz
    Band.[^37]

**[Table 2 -- Upper 700 MHz Band]{.underline}**

747 762 777 792

  ----- ---- ------- ----- --- -------- ------- ----- ----- ------- ----- --- -------- -------
  A     C    D             B   Public           A     C     D             B   Public   
                               Safety                                         Safety   

  CH.        CH. 61  CH.       CH. 63   CH. 64  CH.         CH. 66  CH.       CH. 68   CH. 69
  60                 62                         65                  67                 
  ----- ---- ------- ----- --- -------- ------- ----- ----- ------- ----- --- -------- -------

746 752 758 764 770 776 782 788 794 800 806

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

> A 746-747, 776-777 2 MHz 2 x 1 MHz MEA 52\*
>
> B 762-764, 792-794 4 MHz 2 x 2 MHz MEA 52\*

C 747-752, 777-782 10 MHz 2 x 5 MHz 700 MHz EAG 6

D 752-762, 782-792 20 MHz 2 x 10 MHz 700 MHz EAG 6

\*Blocks have been auctioned.

11. In the Upper 700 MHz Band, the Commission divided the 36 megahertz
    of commercial spectrum between Guard Band spectrum[^38] and spectrum
    available for new fixed, mobile and broadcast services. The 6
    megahertz of Guard Band spectrum was established to minimize any
    interference that might be caused to the 24 megahertz of public
    safety radio spectrum by commercial operations[^39] on the remaining
    30 megahertz of Upper 700 MHz Band spectrum. The 30 megahertz
    portion, in turn, was divided into two blocks: (1) a 10-megahertz
    paired block consisting of two 5-megahertz segments (Block C);
    and (2) a 20-megahertz paired block consisting of two 10-megahertz
    segments (Block D).[^40] In establishing the size of these two
    blocks, the Commission found that Block C's 5-megahertz segments
    would accommodate third-generation (3G) technologies, such as
    wideband code-division multiple access (W-CDMA),[^41] but also
    adopted Block D's wider, 10-megahertz segments to enable a greater
    range of broadband services.[^42]

12. In determining the size of geographic service areas for Upper 700
    MHz Band Blocks C and D, the Commission found that the six EAGs were
    the most efficiently sized geographic areas for initial licenses.
    The Commission ruled out nationwide licenses and chose large,
    regional EAGs after considering a number of factors, including: (1)
    the positions of the majority of commenting parties; (2) the
    geographic size that it estimated would best facilitate rapid
    deployment of the likely use or uses of the spectrum; (3) the
    avoidance of excessive concentration of licenses and the
    dissemination of licenses among a wide variety of applicants;
    and (4) the then-applicable statutory deadline to deposit auction
    proceeds.[^43] The Commission acknowledged that an important factor
    to its decision to assign Blocks C and D on the same geographic
    basis was its desire to enable the aggregation of spectrum into one
    30 megahertz block within any particular geographic area,[^44] an
    amount of spectrum comparable to 25-megahertz Cellular
    Radiotelephone Service ("cellular") licenses and 30-megahertz
    broadband Personal Communications Services (PCS) licenses. The
    Commission also noted the risks and costs associated with attempting
    to aggregate service areas at auction, particularly when there are a
    large number of small geographic areas. It recognized that if EAGs
    were not the optimally sized initial areas for certain bidders,
    post-auction partitioning and aggregation in the secondary market
    would be permitted.[^45]

13. *Lower 700 MHz Band Plan and Service Areas.* Table 3 below depicts
    the current band plan and service area sizes adopted for the Lower
    700 MHz Band in December 2001.[^46] The Auction Reform Act directed
    the Commission to delay the auction of licenses for the Lower 700
    MHz Band, but it made an exception for the spectrum from 710-722 and
    740-746 MHz and specifically required the Commission to proceed with
    an auction of licenses for the "C-block of licenses" and "the
    D-block of licenses."[^47]

**[Table 3 -- Lower 700 MHz Band]{.underline}**

  -------- -------- -------- -------- -------- -------- -------- --------
  A        B        C        D        E        A        B        C

  CH. 52   CH. 53   CH. 54   CH. 55   CH. 56   CH. 57   CH. 58   CH. 59
  -------- -------- -------- -------- -------- -------- -------- --------

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 698-704, 728-734 12 MHz 2 x 6 MHz 700 MHz EAG 6

B 704-710, 734-740 12 MHz 2 x 6 MHz 700 MHz EAG 6

> C 710-716, 740-746 12 MHz 2 x 6 MHz MSA/RSA 734\*
>
> D 716-722 6 MHz unpaired 700 MHz EAG 6\*

E 722-728 6 MHz unpaired 700 MHz EAG 6

\*Blocks have been auctioned.

14. In the Lower 700 MHz Band, the Commission divided the 48 megahertz
    of spectrum into several blocks of both paired and unpaired spectrum
    to accommodate a potential range of new fixed, mobile and broadcast
    services and technologies. Specifically, the spectrum was divided
    into five blocks based on two different pairing architectures: (1)
    three 12-megahertz paired blocks consisting of two 6-megahertz
    segments (Blocks A, B, and C); and (2) two 6-megahertz unpaired
    blocks consisting of contiguous spectrum (Blocks D and E).[^48]
    Unlike the commercial spectrum in the Upper 700 MHz Band, the
    Commission established multiple Lower 700 MHz Band blocks based on
    units of 6 megahertz given the specific support in the record by
    broadcast interests and time-division-duplex (TDD) advocates,[^49]
    as well as the preference of the majority of commenters for
    "multiple blocks" based on licenses that aligned with TV Channels
    52-59.[^50]

15. The Commission determined that the band plan in the Lower 700 MHz
    Band should include a combination of licenses to be assigned over
    small geographic areas and large regional areas. In contrast to the
    Commission's experience in establishing service area sizes for
    Blocks C and D in the Upper 700 MHz Band, many commenters in the
    Lower 700 MHz Band proceeding, including smaller business and
    rural-based providers, favored small geographic areas, including
    CMAs.[^51] As a result, the Commission decided to assign the
    12-megahertz Block C ("25 percent of the . . . Lower 700 MHz Band
    spectrum"[^52]) over CMAs. The Commission determined that using CMAs
    for one out of the three 12-megahertz paired blocks would afford
    meaningful opportunities to interested parties seeking licenses with
    smaller initial geographic scope, including small and rural wireless
    providers.[^53] In addition, the Commission declined to adopt
    nationwide licenses,[^54] and it chose to assign the two remaining
    12-megahertz paired blocks (and the two 6-megahertz unpaired blocks)
    over the large, regional EAGs for many of the same reasons cited in
    its proceeding for the Upper 700 MHz Band.[^55] For example, the
    Commission noted that the advantages of EAGs include: (1) providing
    optimum opportunity to aggregate spectrum, which may be particularly
    useful for services that require nationwide footprints; (2) making
    it easier for providers to take advantage of economies of scale,
    allowing existing technologies to grow and new technologies to
    develop; (3) reducing the potential transaction costs to both
    auction participants seeking adjoining smaller geographic areas and
    carriers seeking to consolidate such areas post-auction; and (4)
    helping to address problems due to incumbent TV stations.[^56] In
    adopting EAGs for two of the three paired blocks, the Commission
    acknowledged that one of its main goals was "making it possible to
    aggregate 24 megahertz of paired spectrum within the same EAG,"[^57]
    an amount of spectrum comparable to 25-megahertz cellular licenses
    and 30-megahertz broadband PCS licenses.

16. *700 MHz Band Performance Requirements*. The Commission adopted
    "substantial service," specified in Section 27.14(a) of the
    Commission's rules, as the only performance requirement for the
    Upper 700 MHz Band in 2000.[^58] Two years later, in 2002, the
    Commission adopted an identical requirement for the Lower 700 MHz
    Band.[^59] In these bands, substantial service means service that is
    "sound, favorable, and substantially above a level of mediocre
    service which just might minimally warrant renewal."[^60] In
    addition, the Commission established safe harbors that provide
    examples of what would be considered substantial service in the 700
    MHz Band.[^61] With one of the available safe harbors, a licensee
    that chooses to offer fixed, point-to-point services is deemed to be
    providing substantial service if it has constructed four permanent
    links per one million people in its licensed service area at the
    license-renewal mark. With another safe harbor, a licensee that
    chooses to offer either mobile services or fixed,
    point-to-multipoint services is considered to be providing
    substantial service if it can demonstrate coverage for 20 percent of
    the population of its licensed service area at the license-renewal
    mark.[^62]

17. *700 MHz Band Renewal Criteria*. In addition to the "substantial
    service" performance requirement specified in Section 27.14(a) of
    the Commission's rules, the Commission provided in Section 27.14(b)
    that a renewal applicant involved in a comparative renewal
    proceeding must submit a showing explaining why it should receive a
    renewal expectancy, and that a renewal applicant involved in a
    comparative renewal would receive a renewal expectancy if its past
    record for the relevant license period demonstrates that it has
    "provided 'substantial' service during its past license term."[^63]
    In adopting these provisions for the Lower 700 MHz Band and the
    Upper 700 MHz Band,[^64] however, the Commission did not discuss in
    detail how these provisions are to be implemented.[^65] For both
    bands, the Commission generally stated only that in the event that a
    license is partitioned or disaggregated: (1) a partitionee or
    disaggregatee is permitted "to hold its license for the remainder of
    the original licensee's license term and obtain a renewal expectancy
    on the same basis as other 700 MHz licensees"; and (2) to the extent
    a licensee meets the substantial service performance requirement
    (discussed above[^66]), it "will be deemed to have met this element
    of the renewal expectancy requirement regardless of which of the
    construction options . . . the licensee has chosen."[^67]

18. *700 MHz Band License Terms.* The Communications Act does not impose
    a time limit on licenses issued by the Commission, other than those
    for broadcast services, which are limited to an eight-year
    term.[^68] To provide a sufficient duration of time for 700 MHz Band
    licensees to commence new services while the DTV transition
    advanced, the Commission generally adopted January 1, 2015 as the
    expiration date for 700 MHz Band licenses.[^69] In its *Upper 700
    MHz First Report and Order*, the Commission decided that an average
    of eight years was a reasonable time to comply with the performance
    requirements for the spectrum,[^70] and thus determined that the
    license term for new commercial licenses should extend eight years
    beyond the 2006 target date for the DTV transition existing at the
    time.[^71] Because the licenses that would be auctioned in the Upper
    700 MHz Band were encumbered by a number of broadcasters, the
    Commission determined that the use of a definite termination date,
    *e.g.*, January 1, 2015, was preferable to a discrete term of years
    following the end of the DTV transition, which at that time was
    subject to extension based on a number of circumstances.[^72] The
    Commission also directed that a licensee commencing broadcast
    operations on or before January 1, 2006, would be required to seek
    renewal of its license at the end of the eight-year term following
    commencement of such broadcast operations.[^73] The Commission
    applied the same license terms that were adopted in the *Upper 700
    MHz First Report and Order* to licenses in the Lower 700 MHz
    Band.[^74]

19. *700 MHz Band Power Limits and Related Requirements.* For the Upper
    700 MHz Band, the Commission adopted a power limit for base and
    fixed stations in all services of 1 kilowatt (kW) effective radiated
    power (ERP).[^75] For the Lower 700 MHz Band, the Commission adopted
    a power limit of 50 kW ERP subject to specific requirements
    regarding non-interference.[^76] Specifically, for those licenses
    operating base or fixed stations at power levels greater than 1 kW
    ERP in the Lower 700 MHz Band, the Commission required a power flux
    density ("PFD") limit of 3 milliwatts/m^2^ at all locations on the
    ground within one kilometer of the stations as a way to address
    potential adjacent channel interference.[^77] To facilitate
    licensees' use of spectrum and prevent harmful interference, in the
    *Lower 700 MHz Report and Order* the Commission amended the rules to
    also require Lower 700 MHz Band licensees intending to operate base
    or fixed stations in excess of 1 kW ERP to file notifications with
    the Commission and provide notifications to all Part 27 licensees
    authorized on adjacent blocks in their area of operation.[^78] This
    notification requirement was not applied to Lower 700 MHz Band
    licensees operating at or below 1 kW ERP.

20. *911/E911 and Hearing Aid-Compatibility Requirements*. The
    Commission has adopted rules to ensure that wireless carriers
    provide basic 911 and E911 services to 911 call centers, or Public
    Safety Answering Points (PSAPs).[^79] In 2003, the Commission
    developed and applied criteria for assessing whether services and
    devices are subject to the E911 requirements.[^80] Under those
    criteria, the service is analyzed based on whether: (1) it offers
    real-time, two-way voice service that is interconnected to the
    public switched network on either a stand-alone basis or packaged
    with other telecommunications services; (2) the customers using the
    service or device have a reasonable expectation of access to 911 and
    E911 services; (3) the service competes with traditional Commercial
    Mobile Radio Services (CMRS) or wireline local exchange service;
    and (4) it is technically and operationally feasible for the service
    or device to support E911.[^81]

21. The Commission also has required digital wireless handset
    manufacturers and digital wireless service providers to take the
    steps necessary to increase the number of hearing aid-compatible
    handset models available to their customers. In addition to adopting
    technical standards for digital wireless phones' compatibility with
    hearing aids,[^82] the Commission established phased-in deployment
    benchmark dates for digital wireless handset manufacturers and
    service providers to offer hearing aid-compatible digital wireless
    handsets,[^83] and adopted certain labeling requirements for hearing
    aid compatible phones.[^84] The Commission required each of these
    classes of entities that do not fall within the *de minimis*
    exception[^85] to begin to offer hearing aid-compatible digital
    wireless handset models by September 16, 2005.[^86] The Commission's
    Part 20 rules presently specify the scope of the 911/E911 and
    hearing aid compatibility requirements as being applicable to
    service providers within certain enumerated radio services.[^87]

22. *Recent Filings Seeking Assignment of Additional 700 MHz Band
    Licenses over Smaller Service Areas.* On July 29, 2005, the Rural
    Cellular Association (RCA) filed a petition requesting that the
    Commission institute a review to consider assigning additional 700
    MHz Band licenses over smaller geographic service areas.[^88] RCA
    requests that additional CMAs be made available in both the
    unauctioned portions of the Upper and Lower 700 MHz Bands,
    contending that the use of smaller license areas will accelerate the
    delivery of broadband services in rural areas where the Commission
    did not anticipate that "demand . . . would be as compelling as it
    is today."[^89] RCA claims that small entities are unable to compete
    effectively for licenses that combine rural and major metropolitan
    areas, and it argues that the availability of RSAs (as opposed to
    other small units) is especially important to small and rural
    carriers given their potential greater interest in serving these
    high-cost areas than large regional and nationwide carriers.[^90]

23. Several parties have submitted comments and notices supporting the
    RCA petition, including the Rural Telecommunications Group (RTG),
    RVW, Inc. (RVW), and U.S. Cellular Corporation (USCC).[^91] All of
    these filings support a reevaluation of the remaining unauctioned
    portions of the 700 MHz Band and point out changed regulatory
    circumstances and industry developments. RTG in particular cites the
    "allocation and anticipated auction" of AWS spectrum as a factor
    supporting the need to assign additional spectrum over CMAs. RTG
    states that the Commission's decision to assign 20 megahertz of AWS
    spectrum over CMAs, in addition to the 12 megahertz of Lower 700 MHz
    Band spectrum over CMAs, is an approach that should be followed by
    assigning an additional 22 megahertz of 700 MHz Band spectrum (for
    54 megahertz total of 700 MHz Band/AWS spectrum) over CMAs to
    continue to promote the rapid development of new technologies and
    services in rural areas.[^92] RVW and USCC both endorse RCA's and
    RTG's positions; however, USCC also supports a reconfiguration of
    the Upper 700 MHz Band to assign a 10-megahertz paired block over
    Economic Areas (EAs) in addition to assigning 22 megahertz of Lower
    and Upper 700 MHz Band spectrum over CMAs.[^93]

24. *Evolution of the CMRS Industry*. When, under direction by Congress,
    the Commission first addressed the reallocation of the 700 MHz Band,
    it established rules that would allow for fixed, mobile, and
    broadcasting services, and it noted that these rules should allow
    for the emergence of a wide range of advanced wireless services. In
    the seven years that have passed since the Commission first
    initiated a proceeding on the 700 MHz Band, the number of U.S.
    subscribers to mobile telephone services has more than doubled from
    approximately 86 million to more than 208 million subscribers.[^94]
    This has produced an increase in nationwide mobile penetration from
    32 percent to 69 percent during the period. In addition, the average
    monthly minutes of use by consumers has quadrupled from 185 minutes
    to 740 minutes.[^95] This period also saw the introduction of mobile
    high-speed data networks by mobile telephony carriers including but
    not limited to Verizon Wireless, Sprint PCS, and Cingular. Today
    more than 93 percent of the U.S. population has access to at least
    one mobile high-speed data provider.[^96] Text messaging usage has
    also greatly increased during this time. In December 2003, the first
    month for which statistics were kept, a reported 2 billion text
    messages were made, compared to nearly five times that amount, or
    9.8 billion, text messages in December 2005.[^97] Industry structure
    has also seen changes during this time including the expansion and
    consolidation of the number of nationwide carriers. In 1999, there
    were three operators with emerging nationwide footprints.[^98] The
    number went up to six nationwide carriers in 2003.[^99] By late
    2005, there were four nationwide carriers.[^100] Furthermore, as the
    Commission concluded last year, the market behaved and performed in
    a competitive manner.[^101] These industry developments demonstrate
    the demands placed on carriers to offer more services to more
    consumers, which in turn has created increased demand for valuable
    spectrum, such as the 700 MHz Band.

# discussion

25. Given that seven years have passed since the Commission first
    initiated a proceeding on the 700 MHz Band, we seek to evaluate
    whether changes to the existing service rules pertaining to 700 MHz
    Band licenses -- including 48 megahertz of Lower 700 MHz Band
    spectrum (Blocks A-E), and the 30 megahertz of Upper 700 MHz Band
    spectrum (Blocks C and D) -- may ultimately permit more effective
    use of this spectrum to better meet the needs of today's
    consumers.[^102] To the extent the Commission's past decisions no
    longer reflect the best approach with regard to the size of
    geographic areas,[^103] the size of spectrum blocks, performance
    requirements, renewal criteria, length of license terms, power
    limits, and 911/E911 and hearing aid-compatibility
    requirements,[^104] we seek comment below on the possibility of
    making appropriate adjustments that serve the public interest.

26. First, we solicit comment on the possibility of revising the size of
    service areas for the unauctioned licenses in the 700 MHz Band.
    Under the Commission's existing rules, each of the five blocks of
    unauctioned spectrum is to be licensed over large service areas
    defined by EAGs. Although we request comment on whether we should
    assign more of this spectrum over smaller license areas, including
    EAs, CMAs, or other small and/or rural areas, we also seek comment
    generally on the possible use of a range of service area sizes and
    the existing spectrum block(s) to which they should be assigned.
    Second, we seek comment on possibly increasing the overall number of
    blocks of 700 MHz Band licenses by reconfiguring a portion of the
    Upper 700 MHz Band or the Lower 700 MHz Band, or both, to provide
    additional opportunities for a variety of applicants to access 700
    MHz Band spectrum. Third, we seek comment on the Commission's
    "substantial service" performance standard with regard to these
    licenses, as well as whether there are other means that may
    facilitate access to spectrum and deployment of service, including
    whether these policies should be tailored to promote service on
    tribal lands. Fourth, we request comment on whether to amend our
    rules to clarify the requirements and procedures of the renewal
    process for 700 MHz Band licenses, particularly as they relate to
    existing rules requiring demonstrations of "substantial service" for
    renewal applicants involved in comparative proceedings. Fifth, we
    invite comment on extending the license terms of 700 MHz Band
    licenses to an expiration date beyond 2015 in order to afford
    licensees a sufficient period of time for deployment of new 700 MHz
    Band services once the DTV transition is complete. Sixth, we seek
    comment on whether the power limits in the existing rules for the
    700 MHz Band spectrum should be revised. Finally, we seek comment on
    our tentative conclusion that services provided in the 700 MHz Band
    and in other bands subject to Part 27, including the AWS-1
    Band,[^105] should be subject to requirements concerning 911/E911
    and hearing aid-compatible handsets to the extent that they meet
    certain criteria.

## Size of Service Areas

27. In the section below, we seek comment on whether to auction
    additional spectrum in the 700 MHz Band over service area sizes
    other than EAGs. We first seek comment on whether there is a need
    for additional small geographic service area licenses, such as EAs,
    CMAs, or other small and/or rural areas, as opposed to larger areas.
    We ask commenters to consider such factors as the amount of spectrum
    that will have been assigned over CMAs by the conclusion of the AWS
    auction this year and assess how much additional spectrum over small
    areas may (or may not) be needed from the existing EAG blocks in the
    Upper 700 MHz Band, Lower 700 MHz Band, or both. To the extent there
    is a need demonstrated to change the *status quo*, we then solicit
    comment on what the optimal service area size, or combination of
    sizes both large and small, may be for the 700 MHz Band. We then
    seek comment on which particular 700 MHz Band block(s) would be most
    appropriate for licensing in such areas. In addressing these issues,
    commenters should present specific, factual support that would
    warrant the adoption of specific-sized service areas for one or more
    blocks of licenses in the 700 MHz Band, including any evidence based
    on changed legal circumstances, the state of technology, the demand
    in rural areas, spectrum access constraints, the fungibility of 700
    MHz Band spectrum with other bands, and relevant costs such as those
    related to acquiring spectrum.

### Need for Additional Access to Spectrum Licensed over Small Service Areas

28. We seek comment on whether, in order to further enhance access to
    spectrum in rural areas, the service areas sizes of the licenses to
    be auctioned should be smaller than the EAGs provided for under
    existing rules. In deciding to employ EAGs in the Upper and Lower
    700 MHz Bands, the Commission listed several factors in support of
    these larger geographic areas.[^106] On this question of what amount
    of additional 700 MHz Band spectrum, if any, may be needed over
    small service areas, parties should address the relationship between
    spectrum access and the provision of service. In this regard, we
    seek comment on the extent to which the assignment of spectrum over
    smaller service areas could lead to increased and better service in
    these areas. In addition, parties should comment on possible
    transaction costs associated with the assignment of additional
    spectrum over small service areas on those service providers with
    business plans to provide service to rural areas as part of regional
    or national footprints. We seek comment on the factors that the
    Commission should use in balancing the needs of small and rural
    carriers as well as large and national carriers as they seek to
    provide service to their rural customers.

29. When addressing whether to license additional 700 MHz Band spectrum
    over small service areas, commenting parties should address the
    relationship between their ability to obtain licenses at auction and
    their ultimate deployment of service in rural areas. For example, we
    seek comment on whether certain areas may continue to have high
    costs of providing service that are unrelated to spectrum
    acquisition costs. As the Commission has noted, "\[e\]ven where
    spectrum access is not a barrier to entry, there will be certain
    rural areas that are very difficult to serve because of high
    equipment costs, low population density, or other economic
    factors."[^107] In their comments, parties should address the
    factors or challenges to rural deployment regardless of whether they
    have access to spectrum. We seek comment on whether certain areas
    may continue to have high costs of providing service that are
    unrelated to spectrum acquisition costs and whether or not there is
    a point at which the advantages of assigning additional small-area
    licenses diminish relative to the disadvantages.

30. In assessing any particular need and/or amount of spectrum,
    commenters should consider the 700 MHz Band's potential suitability
    for more rapid deployment of mobile and other advanced services in
    high-cost areas given its propagation and other technical
    characteristics. In its comments on RCA's petition, for example, RVW
    states that it is seeing "typical system reach of 5 to 10 miles or
    more with some signal penetration through foliage."[^108] We seek
    comment on whether the benefits due to the propagation
    characteristics of this spectrum make it appropriate to assign an
    additional amount of 700 MHz Band spectrum over small areas, or
    whether other considerations support licensing the bands over EAGs
    or other large areas. We are interested in any specific examples
    demonstrating that 700 MHz Band spectrum has unique spectral
    advantages that would help to lower the costs of construction in
    rural or high-cost areas.

31. As compared to other bands, we seek comment on the potential of 700
    MHz Band spectrum to support broadband and other new applications.
    Commenters should explain how much additional 700 MHz Band spectrum
    licensed over areas other than EAGs may be necessary to support
    spectrum-based broadband applications in rural areas. In this
    regard, we seek information on the extent to which the 700 MHz Band
    is fungible with PCS, AWS, and other spectrum that is capable of
    supporting advanced services. Commenting parties should also present
    examples of the differences in costs of deployment of services over
    cellular, Specialized Mobile Radio (SMR), PCS, AWS, and any other
    bands that support (or do not support) the need for licensing
    additional 700 MHz Band spectrum over smaller sized areas in order
    to deploy broadband and other new services in rural areas.

32. We seek comment on the need for greater access to 700 MHz Band
    spectrum on a smaller-area basis.[^109] As discussed above, in 2005,
    the Commission increased the amount of AWS spectrum to be assigned
    over CMAs due to market developments and the support of several
    commenters, including parties representing small and larger
    carriers.[^110] Commenters should also consider the Commission's
    decision to assign 12 megahertz of 700 MHz Band spectrum over
    CMAs.[^111] To the extent we decide not to assign additional 700 MHz
    spectrum over small areas, we seek comment on whether at some point
    in the future (*e.g.*, five years, ten years, twenty years) consumer
    demand and spectrum-intensive applications and technologies could
    exhaust the capacity of spectrum in rural areas that is currently
    assigned over CMAs.

### Optimal Service Area Size(s) for Remaining Licenses

33. In the event we decide that there is a need for license sizes other
    than EAGs for the 700 MHz Band licenses that have yet to be
    auctioned, we must determine the appropriate initial service area
    size, or combination of sizes, for those licenses. For instance, we
    could modify the current service area designations for the 700 MHz
    Band to include one or more license sizes other than EAGs, or a
    combination thereof, or as discussed above keep in place the service
    areas currently reflected in our rules.[^112] We therefore seek
    comment on the license size or combination of license sizes that
    should be provided.

34. First, we seek general comment on the costs associated with the
    initial service area sizes the Commission adopts in the 700 MHz
    Band. We recognize that consumer needs and geographic coverage will
    change over time, and we anticipate that there will be a need for
    providers to aggregate or disaggregate spectrum holdings as they
    address these evolving needs and market demands. Accordingly, we
    seek comment on the transaction costs associated with pre- and
    post-auction aggregation and disaggregation. Both large nationwide
    providers as well as small regional and rural providers may be able
    to make use of this spectrum, yet the optimal size of geographic
    service area is different for these two types of providers, and
    licenses for areas that are larger or smaller than desired will
    impose transaction costs on those parties that wish to acquire them.
    Thus, we consider here the degree and likelihood of such costs as
    700 MHz Band spectrum is licensed in the future, and the extent to
    which the transaction costs of aggregating, disaggregating, or
    partitioning spectrum are a significant concern for those parties
    that most highly value this spectrum. Parties should compare the
    costs of arranging bidding consortia, as well as post-auction
    disaggregation and partitioning, to the costs imposed by aggregating
    spectrum and license areas at auction or in the secondary market.
    Parties should also address any costs resulting from the
    unwillingness to divide spectrum and service areas due to a lack of
    license marketability or other financial considerations.

35. Licensing areas could include large, regional licenses in addition
    to, or in lieu of, EAGs. Thus, in addition to seeking comment above
    on the continued use of the EAGs in the band, which consist of six
    geographic service areas,[^113] we seek comment on whether to
    license the unauctioned spectrum, for example, by using the twelve
    Regional Economic Area Groupings (REAGs), the 52 Major Economic
    Areas (MEAs),[^114] or some other large regional licensing
    area.[^115] To the extent the Commission adopts large geographic
    service areas for the 700 MHz Band other than EAGs, we seek comment
    on whether REAGs may have advantages over EAGs. Commenters should
    address whether the potential combination of spectrum in the 700 MHz
    Band with spectrum from another band or bands would be suitable for
    wireless broadband services and offer enhanced opportunities for the
    provision of such services. On the other hand, we request comment on
    whether substituting REAGs for EAGs may have disadvantages. In
    particular, comments are invited on whether making 700 MHz Band
    licenses available using different service areas than already
    auctioned in the band might be a cause of concern for certain
    licensees. For example, we seek comment on whether there would be
    any particular disadvantages for licensees that may want to combine
    their use of previously auctioned licenses, *i.e.*, licenses on
    Block D of the Lower 700 MHz Band which have already been assigned
    over EAGs, with licenses with newly-defined service areas.

36. If the Commission were to determine that smaller areas should be
    provided, it could license the spectrum or some part thereof on the
    basis of local areas, such as MSAs, RSAs, or EAs. We seek comment on
    the use of smaller, local license areas based on these, or some
    other small area sizes. In particular, we ask that commenters
    address the request by RCA, as supported by other parties, that the
    Commission assign additional CMA-sized licenses in the 700 MHz
    Band.[^116] Finally, we seek comment on whether a combination of
    different license sizes should be adopted and, if so, what
    combination should be reflected in our rules for the spectrum.

37. Notwithstanding the flexibility of use that permits 700 MHz Band
    spectrum to be used for any service consistent with the band's
    allocation,[^117] commenting parties should describe any anticipated
    700 MHz Band service offerings that demonstrate a need for greater
    access to this spectrum on a specific geographic basis. Commenters
    should explain how certain service area sizes correspond to the
    business plans of potential licensees and thus avoid the transaction
    costs that could be associated with aggregation, disaggregation, or
    partitioning. Commenters should also identify the service area sizes
    that best suit the anticipated uses for 700 MHz Band spectrum
    (*e.g.*, mobile broadband services, multi-media services, fixed
    services, *etc.*) individually and as a whole. Depending on the
    demand for service areas of different sizes, we could assign all
    remaining spectrum in the 700 MHz Band using a combination of larger
    and smaller areas. Alternatively, if it is unclear which services
    might ultimately dominate in the 700 MHz Band, we could employ
    medium-sized license areas (*e.g.*, MEAs). In such a case,
    commenters should consider whether the use of medium-sized initial
    service areas would be less efficient than a combination of
    differently sized service areas, given that transaction costs would
    be potentially incurred by auction winners of both small and large
    service areas that may have to aggregate, partition, or disaggregate
    spectrum in order to meet their particular spectrum needs.

38. We seek comment on the type of services that commenters believe will
    be accommodated in the service areas they favor, the economic
    advantages of adopting their favored approach, and what sized
    service area would be most advantageous for the particular service.
    For example, we note that Qualcomm Inc. ("Qualcomm") has acquired
    all six of the EAGs in the Lower 700 MHz Band Block D, and plans to
    deploy and operate (through its wholly-owned subsidiary, MediaFLO) a
    nationwide mobile multimedia network, delivering video, audio and
    data content to 3G mobile phones.[^118] Certain providers in the 700
    MHz Band have focused on smaller sized service areas,[^119] and we
    note that a number of small providers have acquired Lower 700 MHz
    Block C spectrum apparently to provide services specifically to
    rural areas over RSAs.[^120] We seek comment on how the size of
    licensed geographic service area impacts the services that are
    currently being developed, and which may be developed, for use of
    the spectrum.

39. We also seek comment on whether changes related to developments in
    technology should affect the appropriate size of initial service
    areas.[^121] If there are different types of new technologies and
    services being created for these markets, commenters should address
    whether such developments support a certain service area size for
    portions of the 700 MHz Band. For example, we seek comment on the
    impact that systems employing Orthogonal Frequency Division
    Multiplexing (OFDM) technology such as 802.16 ("WiMax"),[^122] or
    any other technology, potentially may have on the provision of
    services in the band, and whether a specific size of service area
    should be adopted in order to best accommodate any such technology.

40. In addressing the appropriate size(s) of service areas for 700 MHz
    Band licenses, we seek comment on any impact of using smaller
    service areas that cannot be used as building blocks to create
    larger service areas should we adopt a combination of license area
    sizes for the unauctioned spectrum in the 700 MHz Band.
    Specifically, under a combination approach, we seek comment on
    whether it would be preferable to assign licenses over large and
    small areas that are based on the same geographic unit (*e.g.*, MEAs
    and EAs).[^123] We ask that commenters address the benefits of such
    an approach, and what impact the use of the same geographic unit (as
    a building block for potential aggregation) would have on
    transaction costs. Conversely, we seek comment on the costs of
    aggregation of dissimilar geographic areas, and on the relationship
    of such costs to any benefits which may be associated with mixing
    spectrum licenses based on different geographic units.

41. In the 700 MHz Band, the Gulf of Mexico was divided between two EAGs
    for EAG licensing, whereas it was designated as a separate area for
    CMA licensing.[^124] In the event that we decide to revise our prior
    determinations regarding license sizes in the 700 MHz Band, we seek
    comment on including the Gulf of Mexico as part of larger service
    areas, or whether we should separately license one or more service
    areas to cover the Gulf of Mexico. Commenters who advocate separate
    service areas to cover the Gulf of Mexico should discuss what
    boundaries should be used, and whether special interference
    protection criteria or performance requirements are necessary due to
    the unique radio propagation characteristics and antenna siting
    challenges that exist for Gulf licensees.

### Spectrum Block(s) Suitable for Potential Reassignment

42. In the event that we decide to provide for service area sizes other
    than EAGs in future 700 MHz Band auctions, we seek comment on which
    of the spectrum block(s) in the band that have not been auctioned
    should be re-designated to a different service area size or sizes.
    Commenters should identify which of the five blocks (Blocks A, B, &
    E in the Lower 700 MHz Band and Blocks C & D in the Upper 700 MHz
    Band), or any block in any potential revised band plan,[^125] would
    be best suited for a different service area size given the factors
    discussed below. We note, for instance, that RTG suggests that the
    Commission provide CMA licensing in the Lower 700 MHz Band's Block B
    and in the Upper 700 MHz Band's Block C.[^126] In addition to our
    request for comment on all of the unauctioned spectrum blocks, we
    seek comment on RTG's proposed use of these two specific blocks for
    re-designated service area sizes.

43. With respect to the blocks in the Upper 700 MHz Band, we seek
    comment on the use of CMA or other small service area licenses, and
    which spectrum block or blocks in that band, if any, should be
    licensed on that basis. We ask commenters to consider the presence
    of public safety systems, which, under Commission rules, receive
    special protection against harmful interference. For example,
    equipment operating in the Upper 700 MHz Band Blocks C and D must
    meet strict out-of-band emission (OOBE) limits to protect public
    safety operations.[^127] Due to the relatively small spectral
    separation between these blocks and the public safety spectrum, such
    equipment may have to employ enhanced filtering,[^128] which would
    likely add to the cost of base and mobile equipment. On the other
    hand, there may be certain spectrum blocks within the Upper 700 MHz
    Band that, because they are farther removed from the public safety
    spectrum, will require less costly equipment than equipment
    operating in spectrum blocks closer to the public safety
    bands.[^129] Thus, we seek comment on the impact on equipment costs
    in general if we decide to revise the size of service area for Upper
    700 MHz Band spectrum. We seek comment on which spectrum blocks in
    the current Upper 700 MHz band plan (*i.e.*, Blocks C or D), or in
    any revised band plan,[^130] would incur the greatest and least
    equipment costs and the extent to which such additional costs could
    affect the provision of service.

44. Given these possible considerations relating to equipment costs, we
    also seek comment on whether any new CMA or other small service area
    licenses should be located in the Lower 700 MHz Band, rather than
    the Upper 700 MHz Band, if we decide to revise existing band plans
    to provide for small area licenses. In the event that additional
    equipment cost issues might make it preferable to locate new
    small-area licenses in the Lower 700 MHz Band, we seek comment on
    whether its 6 megahertz spectrum blocks would efficiently facilitate
    the implementation of 1xEV-DO and Wideband Code Division Multiple
    Access (CDMA) technologies -- the 3G technologies of CDMA and GSM
    networks -- in the Lower 700 MHz Band.[^131] We also seek comment on
    whether WiMax, a possible alternative to 1xEV-DO and Wideband CDMA
    technologies, would support a variety of bandwidths, including 6
    megahertz, and whether WiMax potentially could be readily
    accommodated on Lower 700 MHz Band spectrum blocks.[^132] In
    addition, we seek comment on the ability of 6 megahertz segments to
    accommodate high-speed data systems similar to the MediaFLO
    multi-media system being implemented by Qualcomm on Block D in the
    Lower 700 MHz Band.

45. In the event we decide to locate additional CMA or other small
    service area licenses in the Lower 700 MHz Band, we seek comment on
    which spectrum blocks in that band should be licensed on that basis.
    We ask that comments address whether any particular spectrum blocks
    in the Lower 700 MHz Band (*i.e.*, Blocks A, B, and/or E) would be
    better suited for small-area licensing than other blocks, and to
    state the reasons for supporting the use of any one or more of these
    spectrum blocks for this purpose.[^133]

46. Specifically, we seek comment on the impact of designating the
    unpaired 6 megahertz Block E in the Lower 700 MHz Band for
    small-area licensing. If 6 megahertz is sufficient to meet small
    and/or rural carriers' spectrum needs, commenters should address
    whether there are broadband technologies that can operate on
    unpaired spectrum such that the 6 megahertz of spectrum in Block E
    would be suitable for potential reassignment.[^134] On the other
    hand, we seek comment on what spectrum in the Lower 700 MHz Band
    should be licensed over CMAs or other small service areas if
    additional paired spectrum is determined to be necessary and/or
    appropriate for small service areas. Commenters should consider
    whether there are particular reasons for selecting either Block A or
    Block B (or both) for this purpose.

47. We note that if we locate a CMA-based license adjacent to an EAG (or
    other differently sized area) in the Lower or Upper 700 MHz Band,
    there may be an impact on aggregation, including on the level of
    transaction costs. Thus, we seek comment on whether aggregation may
    be more difficult and complicated to accomplish if spectrum blocks
    of differing geographic sizes are located adjacent to one another,
    and what effect those factors should have on our consideration of
    the current band plan.

48. We also seek comment on whether, and to what extent, there would be
    an impact on the need to provide protection to TV Channel 51 if we
    were to provide for licensing areas that are smaller than EAGs in
    the adjacent Lower 700 MHz Band Block A. Comments should address how
    any need for small and rural carriers to provide adjacent TV Channel
    51 protection might affect their ability to provide service to those
    areas if Block A were designated for small area licensing.

## Size of Spectrum Blocks 

49. To the extent we decide to auction and assign additional licenses
    over service area sizes other than the six EAGs, we also seek
    comment on whether we could better accommodate such assignments by
    reconfiguring or sub-dividing existing spectrum blocks in the band
    plans in the 700 MHz Band. We seek comment generally on whether we
    should reconfigure the license blocks in the Upper 700 MHz Band, the
    Lower 700 MHz Band, or both. Although we believe we should retain
    the current band plan in the Lower 700 MHz Band, we nevertheless
    seek comment on potential changes to the size of the spectrum blocks
    in the Lower 700 MHz Band. We also discuss below the possibility of
    revising the size and pairing of licensed spectrum blocks in the
    Upper 700 MHz Band. In particular, we seek comment on dividing the
    20-megahertz Block D license in the Upper 700 MHz Band into two or
    more license blocks. In addition, we seek comment on whether and how
    to make more licenses available to be potentially assigned on a
    geographic basis or bases smaller than EAGs, and on ways to provide
    licenses that may better reflect recent developments. Although we
    seek comment on this issue primarily with respect to unauctioned
    licenses, there are certain issues which we seek comment on that
    relate to already auctioned spectrum, *i.e.*, whether to change the
    size and location of the spectrum blocks in the Lower 700 MHz Band,
    and the use of a "two-sided auction."

50. We seek comment on whether the spectrum blocks in the Lower 700 MHz
    Band should be maintained at their current 6 megahertz alignment and
    sizes. The spectrum comprising Lower 700 MHz Band Blocks C and D,
    consisting of 18 of the 48 megahertz in the Lower 700 MHz Band, has
    already been auctioned,[^135] and we believe that the location of
    these auctioned blocks limits our ability to reconfigure the
    remaining spectrum blocks in the Lower 700 MHz Band.[^136] We
    nevertheless seek comment on whether we should make any changes to
    the size and location of spectrum blocks in the Lower 700 MHz Band
    and, if so, what those changes should be.

51. With respect to the Upper 700 MHz Band, we seek comment on USCC's
    proposal to divide the current 20 megahertz Block D into two
    separate 10 megahertz blocks.[^137] USCC proposes that one of the
    new 10 megahertz blocks be assigned over EAs, and the other new 10
    megahertz block be assigned over EAGs. We seek comment on possibly
    increasing the overall number of licenses available in any given
    geographic area by dividing Upper 700 MHz Band Block D into two or
    more smaller-sized blocks, and thus provide one or more additional
    licenses.

52. We seek comment on whether the provision of an additional 10
    megahertz paired block in the Upper 700 MHz Band (by dividing the
    current Block D into two such blocks) would facilitate the
    implementation of a wider variety of technologies in the band. A 10
    megahertz paired block can readily accommodate Wideband CDMA and
    1xEV-DO technologies, and dividing Block D into two such blocks
    would, therefore, provide an additional license that could employ
    one of these technologies.[^138] In addition, commenters should
    address whether 5 megahertz segments accommodate other systems that
    have recently been developed. For example, Qualcomm's MediaFLO will
    be deployed on a 6 megahertz block in the Lower 700 MHz Band, but
    there are indications that this multi-media system can be designed
    to operate on 5 megahertz blocks as well.[^139]

53. We also seek comment on whether to divide the current 20 megahertz
    paired Block D into more than two smaller paired blocks to better
    accommodate other new technologies. For example, systems based on
    802.16 standards (WiMax) could potentially operate on a variety of
    bandwidths ranging from 1.25 to 20 megahertz, including a number of
    bandwidths that are 5 megahertz or smaller.[^140] Accordingly, we
    seek comment on whether a division of the 10 megahertz segments of
    paired Block D to create two or more smaller blocks -- *e.g.*, 1.25,
    1.75, and 7 megahertz blocks -- might better accommodate this
    technology. We also seek comment on other possible block sizes --
    either larger or smaller than the current blocks sizes -- that might
    be supported by other existing or potential technologies. In
    addition, we seek comment generally on any potential benefits
    unrelated to technology, *e.g.*, increased competition, that may
    result from making more than one additional license available in the
    Upper 700 MHz Band.

54. On the other hand, we seek comment on any disadvantages that may
    result from sub-dividing Upper 700 MHz Band Block D into two or more
    blocks. Comments should address whether the two licenses in the
    Upper 700 MHz Band (along with the five total licenses in the Lower
    700 MHz Band) are sufficient to help enhance competition among a
    wide variety of providers and applicants. Although the Commission
    has indicated that a bandwidth of at least 5 megahertz is required
    to accommodate 3G services[^141] and 10 megahertz paired blocks can
    be used for certain new technologies, the Commission has also
    recently determined that wider bandwidths (*i.e*., 20 megahertz
    paired blocks) licensed on a CMA basis will be "beneficial to
    carriers of various sizes."[^142] We ask that comments consider
    whether a 20 megahertz paired block licensed on, *e.g.*, CMAs, in
    the Upper 700 MHz Band would help enhance competition among a wider
    variety of providers and applicants.[^143]

55. We also seek comment on whether we should sub-divide Block D into
    two 10 megahertz paired blocks given that, in doing so, the overall
    spectrum efficiency of the band may be decreased. For example, if
    1xEV-DO technology were employed, the data throughput of the current
    20 megahertz paired block would be more than twice the throughput of
    each of the two new 10 megahertz paired blocks.[^144] We seek
    comment as well on whether, if we sub-divide Block D into two
    blocks, we should necessarily divide the block into two equal-sized
    10 megahertz block pairs. WiMax, for example, may be able to be
    accommodated on 5 megahertz blocks, but the WiMax Forum[^145] has
    certified the use of 3.5, 7, and 10 megahertz bandwidths for
    802.16-based equipment.[^146] Thus, by dividing Block D into two
    equal-sized 10 megahertz paired blocks, we would prevent an Upper
    700 MHz Band licensee with only one license in any geographic area
    from employing 802.16-based equipment on bandwidths greater than 5
    megahertz. We also seek comment on the effect of changing the block
    sizes on the overall spectrum efficiency of the band based on other
    existing or potential technologies.

56. Finally, we ask that commenters addressing proposals to reconfigure
    existing spectrum blocks in the 700 MHz Band also address existing
    and/or potential opportunities to aggregate new licenses and
    existing licenses. We note that licensees may be able to obtain a
    combination of spectrum blocks that meet their specific needs, even
    if individual licenses themselves do not comprise optimally sized
    blocks. For example, in any auction of new licenses, participants
    may be able to aggregate licenses, and thus spectrum blocks, in a
    market.[^147] We seek comment on whether, for 700 MHz Band licenses,
    any changes to Commission competitive bidding rules are necessary or
    desirable in order to facilitate the efficient aggregation of new
    licenses, in light of the existing spectrum blocks for 700 MHz Band
    licenses and any spectrum blocks that may be proposed.

57. We further note that, following an auction, parties that wish to do
    so may aggregate spectrum covered by new 700 MHz Band licenses with
    spectrum covered by existing 700 MHz Band licenses available in the
    secondary market. We seek comment on whether any Commission action
    is necessary or desirable to facilitate the aggregation of new and
    existing 700 MHz Band licenses in the secondary market, in light of
    the existing and/or proposed 700 MHz Band spectrum blocks. If so, we
    ask that commenters address whether any such steps require changes
    to existing Commission competitive bidding or secondary market
    rules. We seek comment on the extent and nature of any benefits that
    may result from Commission action to facilitate aggregation of
    spectrum currently unassigned and previously licensed in the 700 MHz
    Band.

58. Alternatively, the Commission could facilitate such aggregation of
    spectrum by enabling an auction in which licenses for currently
    unassigned spectrum as well as licenses for spectrum previously
    assigned in the 700 MHz Band could be offered for sale in a single
    auction, a mechanism sometimes referred to as a "two-sided auction."
    Such a "two-sided auction" could be implemented in several ways. As
    one example, the Commission might allow incumbent licensees to
    return their licenses to the Commission in exchange for a credit,
    which could be based on the prices of licenses for spectrum formerly
    associated with the returned licenses as determined in an auction.
    Alternatively, the Commission might allow existing licensees to
    offer their licenses in the auction, but relinquish the licenses in
    exchange for a credit only if prices (and related credit values)
    reached a certain level. A variation on this approach would be to
    allow incumbents to include their licenses in the auction inventory
    but "pay themselves" the winning bid if they chose to outbid other
    participants. In any of these alternatives, the Commission could
    provide that credits received in exchange for returned spectrum
    licenses would be transferable, and that bidders could use the
    credits to obtain other spectrum licenses in the same auction or
    another auction of spectrum licenses for the same or a different
    service. Consequently, incumbent licensees could exchange their
    current licenses for other spectrum licenses using credits, or
    transfer the credits to other bidders wishing to obtain
    licenses.[^148]

59. Commenters addressing actions the Commission might take to create a
    two-sided auction should address details of how the existing
    licenses could be incorporated into the auction, how the incumbent
    licensees could be compensated for "selling" a license, and whether
    any particular aspects of such an auction, either discussed here or
    proposed by commenters, might exceed the Commission's competitive
    bidding authority, under either the Commission's current rules or
    the Communications Act. In particular, commenters should consider
    whether the use of credits, or other means of compensating
    incumbents for their licenses, may require additional authority or
    the adoption of new Commission rules or procedures.[^149] Among
    other things, commenters should consider whether there are
    particular design elements of a two-sided auction that would help
    such a mechanism work more efficiently. Commenters also should
    address the extent to which a two-sided auction, by offering all
    available (Commission-held and previously assigned) spectrum
    simultaneously, may provide an alternative with lower transaction
    costs as compared to the secondary market and whether such an
    alternative is needed. In addition, we seek comment on whether the
    use of a two-sided auction could or would promote opportunities for
    interested parties to better meet their needs for particular amounts
    of spectrum in this band. Would an ability to acquire more spectrum
    or aggregate it differently help promote service, especially in
    rural areas? Finally, commenters should address any issues or other
    matters which may relate to competitive bidding as a result of
    conducting a two-sided auction in the 700 MHz Band.

## Facilitating Access to Spectrum and Provision of Service to Consumers 

60. In this section, we seek comment on whether the Commission should
    take additional action with regard to the spectrum in the 700 MHz
    Band so as to help facilitate access to that spectrum and the
    provision of service to all consumers, including those in rural
    areas.[^150] Above, we sought comment on whether changes to the size
    of geographic service areas and/or spectrum blocks may help increase
    access to spectrum for a wide variety of entities, especially those
    seeking to provide service in rural areas. In this section, we seek
    comment on whether our existing "substantial service" performance
    requirements and related policies pertaining to these 700 MHz Band
    licenses serve to facilitate rural deployment of wireless services
    in the 700 MHz Band. We request comment on whether additional steps
    need to be considered to ensure the Commission's goal of achieving
    rapid deployment of advanced services is met, both in the nation's
    cities and more remote areas. First, we consider the possibility of
    modifying performance requirements for unauctioned licenses to the
    extent they could better promote both spectrum access and service
    provision. Second, for all 700 MHz Band licensees, we seek comment
    on options that may facilitate access to spectrum in the secondary
    market for all potential service providers, including those
    specifically seeking to deliver service to rural areas. Finally, we
    seek comment on policies the Commission could implement to promote
    service on tribal lands.

### Performance Requirements

61. We seek comment on whether we need to revise the existing
    "substantial service" performance requirement, or possibly adopt
    alternative build-out rules, for unauctioned licenses in the 700 MHz
    Band in order to further access to spectrum and provision of service
    to consumers, including those in rural areas. To the extent
    commenters believe the current requirement, or its safe harbors,
    should be revised, we seek comment below on whether other approaches
    may offer certain additional benefits that outweigh possible
    additional costs. These options could involve adopting rules that
    require specific actions by licensees in order to retain their
    licenses. For each of the proposals below, commenters should address
    the potential advantages to consumers in the license service areas,
    including those in rural areas, as well as any possible
    disadvantages, such as possibly limiting the flexibility of
    licensees to deploy services under time frames responsive to market
    conditions.

62. *Substantial Service.* The current performance requirement for the
    700 MHz Band, as described above,[^151] is based on the "substantial
    service" standard defined in Section 27.14(a).[^152] We seek comment
    as to the effectiveness of this approach in promoting service in the
    unauctioned portions of the 700 MHz Band, especially in rural areas.
    Under this standard, the Commission established "safe harbors" to
    provide examples of what would be considered substantial service in
    the 700 MHz Band. We seek comment below on whether any changes to
    these safe harbors are warranted to better promote service to all
    areas. To the extent commenters address whether Section 27.14(a) or
    its safe harbors should be revised, they should also consider
    whether any other provisions in the existing Part 27 rules require
    specific recognition or adjustment to comport with the potential
    application of those performance requirements for 700 MHz Band
    licensees. For example, we seek comment on whether we need to
    clarify the extent to which certain of the Commission's non-Part 27
    rule parts, as listed in Section 27.3, apply to 700 MHz Band
    licensees with regard to performance requirements relating to
    build-out and/or provision of service.[^153] In addition, we note
    that Section 27.15 describes *inter alia* elections for "geographic
    partitioning and spectrum disaggregation" to ensure the Commission's
    performance requirements are met when licenses are divided
    spectrally or geographically between two or more parties.[^154] We
    seek comment on whether to change any aspect of Section 27.15 in
    order to help ensure the provision of service to consumers,
    including any rural areas that are part of a partitioned or
    disaggregated license.[^155]

63. We also seek comment on whether the Commission should further define
    safe harbors for licensees seeking to meet the Part 27 "substantial
    service" standard on 700 MHz Band spectrum. We note, for example,
    that the Commission's safe harbors for 700 MHz Band licensees did
    not specifically mandate that a particular level of service be
    provided in rural areas. Rather, the Commission stated in the *Upper
    700 MHz Report and Order* that a licensee "that limits buildout to
    urban areas and areas with high density population, will not
    necessarily be ensured of license renewal, even if otherwise
    compliant with the construction benchmarks," and added its belief
    that substantial service "requires the licensee to buildout in rural
    areas as well."[^156] The Commission provided some guidance on rural
    construction in the *Rural Report and Order*, which established a
    safe harbor for providing mobile service to rural areas.[^157] In
    particular, it stated that a mobile wireless service licensee in
    various bands, including the 700 MHz Band, "will be deemed to have
    met the substantial service requirement if it provides coverage to
    at least 75 percent of the geographic area of at least 20 percent of
    the 'rural areas' within its licensed area."[^158] We seek comment
    on whether this "rural safe harbor" for mobile wireless services
    should continue to apply to the 700 MHz Band licenses that have not
    been auctioned, or whether it should be revised. We also seek
    comment as to whether to apply a safe harbor to other types of
    services (*e.g.*, fixed) in the 700 MHz Band and, if so, what other
    services should be included and how the safe harbor should be
    defined. In addition, we ask how "coverage" would be measured for
    these other services so as to improve incentives to serve rural
    areas. Finally, we seek comment on whether there are other safe
    harbors pertaining to construction in rural areas that should
    fulfill the substantial service requirement and that would provide
    additional regulatory certainty regarding the Commission's
    performance requirements.

64. *Construction Benchmarks.* As an alternative to maintaining the
    substantial service standard that the Commission previously
    determined should apply to the 700 MHz Band,[^159] we seek comment
    on whether we should apply more specific construction benchmarks to
    the unauctioned licenses in the 700 MHz Band. In the past, such
    construction benchmarks have required a licensee to make service
    available to a certain percentage of the population or geographic
    area. For example, some broadband PCS licensees originally were
    required to build out their networks sufficient to serve one-third
    of the population of the license area within five years and
    two-thirds within ten years.[^160] In contrast, narrowband PCS
    licensees were given the option of constructing networks sufficient
    to serve at least a minimum amount of the geographic area of the
    license, or constructing networks sufficient to serve 37.5 percent
    of the population of the license area within five years and 75
    percent within ten years, or meeting a substantial service
    requirement.[^161]

65. We seek comment on whether the Commission should adopt a
    population-based construction requirement as part of any possible
    revisions to the licensing rules in some or all of the spectrum
    bands to be auctioned in the 700 MHz Band. We ask for comment on the
    advantages of adopting this type of benchmark. If such a benchmark
    were adopted, we seek comment on the precise population benchmark
    that should be adopted, and whether it should be more extensive than
    the previous PCS rules, such as requiring coverage sufficient to
    provide service to one-half of the population of the license area
    within five years and three-fourths within ten years. We also
    request comment on the disadvantages that adoption of
    population-based benchmarks might cause, such as the risk that
    licensees would focus first on the most economically viable
    build-out and would be less likely to serve less-populous areas, at
    least during the initial license term.

66. As another option, we seek comment on whether a benchmark based on
    geography for 700 MHz Band unauctioned licenses would be more
    effective in promoting service to underserved areas without
    offsetting disadvantages. We note that, in the *Rural Report and
    Order*, the Commission considered in 2004 whether it should adopt
    geographic based benchmarks for any particular service, but declined
    at that time to adopt such a policy based on the record in that
    proceeding.[^162] In the instant rulemaking, we seek comment on
    whether geographic-based benchmarks warrant further consideration
    and, in particular, whether these rules could be designed to promote
    build-out in rural portions of these licenses yet to be auctioned.
    If so, we seek comment on how such a geography-based benchmark could
    or should be structured. We also seek comment on any other
    geographic benchmarks that would be appropriate for these licenses.
    For any proposed benchmark, we ask commenters to describe how the
    Commission should apply it to the variety of fixed, mobile,
    broadcast, and private services that are authorized in this
    spectrum.

67. *"Keep What You Use."* We also seek comment on whether the
    Commission should consider adopting a "keep what you use"
    re-licensing mechanism[^163] for the unauctioned spectrum in the 700
    MHz Band, similar to the approach adopted for cellular service in
    the 1980s.[^164] Under a "keep what you use" rule, the Commission
    would reclaim any "unused" spectrum in a license area after a
    pre-defined period of time. We also seek comment on whether the
    Commission should consider a modified version of this rule, such as
    a "triggered keep what you use" rule, in which the Commission,
    rather than reclaiming "unused" spectrum after a period of time,
    would reclaim spectrum only in the event a party other than the
    licensee (*e.g*., a spectrum lessee) seeks access to the licensed
    spectrum in an unserved portion of the license area. Similarly, we
    seek comment on whether the Commission should consider applying
    either the "keep what you use" rule or "triggered keep what you use"
    rule only to a portion of the spectrum (*e.g*., one-half) of the
    spectrum that otherwise would be reclaimed, or eligible for
    reclamation, by the Commission.

68. Given that these variations of the "keep what you use" approach may
    make unused spectrum available to other parties interested in
    gaining access to spectrum, we seek comment on whether it may be an
    effective means to provide additional service, including in rural
    areas. If commenters believe licensees are less likely to use
    spectrum in rural portions of their license areas, would such a
    mechanism be an efficient way to provide spectrum access to other
    potential service providers? To the extent that licensees may be
    less likely to use the spectrum in rural portions of their license
    areas, we also seek comment as to whether the Commission should
    apply this approach only to licenses covering rural areas, or only
    to that portion of licenses that covers rural areas.[^165]

69. To the extent commenters believe a "keep what you use" mechanism is
    appropriate, we seek comment on how "use" could or should be
    defined, given the goals we here seek to further. In particular, we
    seek comment on how the Commission should define what type of
    activities demonstrate that the spectrum is being "used" in this
    context, considering that the Part 27 rules that the Commission
    adopted facilitate a wide variety of services and uses in this band.

### Facilitating Access to Spectrum in the Secondary Market

70. In addition to facilitating access to spectrum based on Commission
    rules relating to the size of geographic license areas and spectrum
    blocks, we also seek comment on the extent to which the Commission
    could facilitate access through possible revisions to our existing
    secondary markets policies and rules applicable to both unauctioned
    and previously auctioned licenses in the 700 MHz Band. In 2003 and
    2004, in its *Secondary Markets* proceeding, the Commission took
    significant steps to facilitate the ability of entities, through
    spectrum leasing arrangements, to gain access to licensed spectrum
    in areas and amounts suited to their particular spectrum
    needs.[^166] In addition, that proceeding established a streamlined
    or immediate approval process for transfers and assignments of
    licenses.[^167] In earlier proceedings, the Commission had
    established policies that permit partitioning and disaggregation of
    geographic area licenses.[^168] Among the Commission's goals with
    these policies has been to create an efficient secondary market that
    can move spectrum to its highest valued end use and to increase the
    number and/or level of wireless providers and services, including in
    rural areas.[^169]

71. In the *Rural Report and Order* issued in 2004, the Commission
    determined that it was premature to evaluate its secondary markets
    policies in comparison to other spectrum access mechanisms. In
    particular, it noted that more time was needed for an efficient
    secondary market to develop and for its impact to be seen.[^170] At
    that time, some commenters suggested that secondary market policies
    are insufficient when it comes to enabling access to spectrum.[^171]
    Given the passage of time, we now seek comment on whether there are
    additional mechanisms relating to our secondary market policies that
    should be adopted so as to help move spectrum from licensees to
    other entities that place a higher value on its use. For instance,
    we seek comment on whether requiring licensees to make "good faith"
    efforts to negotiate with potential spectrum lessees could help
    increase access to spectrum, including in rural areas, and thus
    promote the development of these markets. Potential "good faith"
    requirements could take one of several forms. At a minimal level,
    licensees could be required to establish a contact point for
    potential lessees, *e.g.*, providing the name and contact
    information of a designated representative in the licensee's
    organization who would accept inquiries from potential spectrum
    lessees. Under an alternative approach, licensees could be required
    to engage in "good faith" negotiations with potential spectrum
    lessees, with the Commission determining the minimum steps necessary
    to meet this requirement. For example, 700 MHz Band licensees could
    be required to have a minimum number of meetings with potential
    spectrum lessees and/or provide their terms for an acceptable
    spectrum leasing arrangement. Would the use of such requirements for
    licensees in the 700 MHz Band encourage licensees to more seriously
    consider the opportunity cost of the spectrum they hold but do not
    use? On the other hand, given the large number and diverse nature of
    potential users in this band, we seek comment on whether a
    requirement to, *e.g.*, establish contact and/or communicate with
    all interested parties would be unduly burdensome or subject to
    abuse. We also seek comment on whether the Commission should adopt
    additional mechanisms to encourage partitioning and/or
    disaggregation of 700 MHz Band spectrum and the extent to which such
    policies ultimately may promote more service, especially in rural
    areas.

72. In addition, we seek comment on whether the Commission could use its
    existing oversight role during the license renewal process to review
    a 700 MHz Band licensee's actions during its license term, including
    its participation in secondary market transactions, and evaluate
    issues related to spectrum access, service to rural areas, or both.
    As we discuss below,[^172] under this approach, licensees of
    unauctioned and auctioned 700 MHz Band spectrum would be subject to
    greater informational filings and Commission review at renewal even
    if they are not "involved in a comparative renewal
    proceeding."[^173] We seek comment on the advantages and
    disadvantages of this approach in promoting service to rural areas,
    and we ask commenters to compare it to "keep what you use" and other
    mechanisms designed to promote access to spectrum during the license
    term.

### Facilitating Access to Spectrum and the Provision of Service to Tribal Lands

73. Ensuring that qualifying tribal lands have access to affordable,
    quality telecommunications services continues to be a goal of the
    Commission.[^174] Promoting access to spectrum and the provision of
    service on tribal lands is an important means to meet that goal.
    Accordingly, we seek comment on what steps, if any, we can take with
    regard to the 700 MHz Band to further facilitate access to spectrum
    and the provision of service to tribal lands. Some of these steps,
    such as the performance requirements discussed above, generally
    would be applicable to the unauctioned spectrum in the 700 MHz Band.
    In contrast, policies to facilitate access to spectrum in tribal
    lands could be applied to both unauctioned and the already auctioned
    spectrum in this band.

74. The Commission's rules currently promote deployment of wireless
    services on tribal lands through its Tribal Lands Bidding
    Credit.[^175] Pursuant to this program, the Commission grants
    bidding credits to winning bidders who deploy wireless facilities
    and provide service to federally-recognized tribal areas that have a
    wireline telephone subscription or penetration rate equal to or
    below 85 percent. The credit provides qualifying winning bidders
    \$500,000 for the first two hundred square miles of qualifying
    tribal land and \$2,500 for each additional square mile. Within 180
    days after the filing deadline for long-form applications, a winning
    bidder that wishes to receive this credit must certify to the
    Commission that it has complied with various requirements, which
    include obtaining certification from the tribal government to
    provide service on its tribal land. Following satisfactory
    completion of this process, the amount of the bidding credit is
    subtracted from the gross bid amount,[^176] and once this amount is
    paid, the license is issued.

75. We seek comment on whether the Commission should make any potential
    adjustments to its Tribal Land Bidding Credit rules as they apply to
    the 700 MHz Band licenses to be auctioned in order to further the
    deployment of wireless services to tribal lands. We also seek
    comment on use of the Tribal Land Bidding Credit in this context
    given statutory requirements that the Commission commence the
    auction for recovered analog broadcast spectrum no later than
    January 28, 2008, and deposit the proceeds from such an auction in
    the Digital Television Transition and Public Safety Fund no later
    than June 30, 2008.[^177] For instance, do we need to reduce for the
    700 MHz Band auction the 180 day period that winning bidders
    currently have to obtain a Tribal Lands Bidding Credit?
    Alternatively, should we accept as sufficient from winning bidders
    in a 700 MHz Band auction either self-certification or a promise to
    negotiate in good faith with the tribal government? In either case,
    we would thereby rely, at least in part, on the winning bidder's
    need to obtain consent of the tribal government to ensure that the
    tribes are adequately included in the process.[^178] What, if any,
    other changes should we make to the Tribal Lands Bidding Credit
    process in light of the special circumstances for the 700 MHz Band?
    In addition, given the statutory deadlines, we seek comment on
    whether our goal of promoting the deployment of wireless services to
    tribal lands would be better served with respect to the 700 MHz Band
    by exploring other means to promote access to spectrum and the
    provision of service in tribal lands, as discussed below.

76. We seek comment as well on whether there are other steps the
    Commission should take to promote service in tribal lands. In
    particular, we seek comment on whether the performance requirements
    and/or policies to facilitate access to spectrum, discussed in
    Section C.1 and C.2 above, should be specifically tailored for
    tribal lands. For example, should the Commission consider applying a
    "keep what you use" performance requirement to the tribal lands
    portion of geographic license areas, even if it decides to apply
    some other standard, such as substantial service, to all other areas
    of a license that are not tribal lands? We seek comment on whether
    such an approach would promote access to spectrum and the provision
    of service on tribal lands. In addition, we seek comment on whether
    any policies designed to facilitate access to spectrum, such as
    requiring "good faith" negotiations or other efforts by licensees in
    response to a request for a spectrum lease, should be applied
    specifically to tribal lands, even if the Commission decides not to
    apply these policies to non-tribal license areas. Similarly, are
    there other steps we could take to revise our partitioning and
    disaggregation rules in order to better facilitate access to
    spectrum on tribal lands? Commenters also should consider, as
    discussed below in Section D, whether the provision of service to
    tribal lands could be codified as a criteria or factor relevant to a
    licensee's demonstration that renewal is in the public interest.

77. To the extent the Commission should revise its performance
    requirements and/or policies to facilitate access to spectrum and
    apply these policies only to tribal lands, we seek comment generally
    on how such a process should be implemented. For instance, we seek
    comment on how a "keep what you use" approach for tribal lands would
    operate in the event all other license areas were subject to
    different performance requirements. Similarly, we seek comment on
    the feasibility of applying one set of secondary markets rules to
    those portions of a license that cover tribal lands while applying
    different rules to the rest of a licensee's geographic area.

78. We also seek comment on whether it would facilitate access to
    spectrum and promote service to tribal lands to create license areas
    based on the contours of a reservation or any tribal boundary line.
    We note that, in creating the Tribal Lands Bidding Credit program,
    the Commission considered and declined to adopt this policy in the
    *Tribal Lands Bidding Credit Report and Order*.[^179] We seek
    comment whether adopting this policy would have the unintended
    consequence of partitioning off licenses covering tribal lands such
    that the newly created license areas will remain unbuilt, because
    companies will bid only for the licenses not covering the tribal
    lands. For instance, would it generally be economically feasible to
    provide service only within a tribal land service area? We note
    that, unlike other service areas, many tribal land service areas
    would result in licensed areas wholly contained within the larger
    geographic area of other licensees. We ask whether: (1) interference
    issues would be more significant because of the greater number of
    borders between licensed service areas; and (2) limitations of
    system design may make it difficult to engineer solutions around
    multiple small areas. Could any of these technical obstacles be
    mitigated by limiting tribal land license areas to tribal lands of a
    particular size or greater, or to those not contained wholly within
    another license area? We also ask commenters to address possible
    auction-related difficulties caused by this approach, especially
    those for potential bidders. For instance, if we were to implement
    this approach for a single spectrum block for which the basic
    geographic area was CMAs, the 585 federally recognized tribal lands,
    combined with the 734 CMAs, would result in 1319 separate licenses
    being offered for that one block.

79. Finally, in the event the Commission adopts other policies discussed
    above, such as increasing the number of spectrum blocks made
    available and/or the amount of spectrum assigned by small geographic
    license areas in the 700 MHz Band, we seek comment on whether
    policies focused solely on tribal lands would be necessary. We note
    that, in Auction No. 44, two CMA-based licenses for the Lower 700
    MHz Band were won by San Carlos Apache Telecommunications Utility,
    Inc.,[^180] and we therefore inquire whether further use of such
    small geographic areas may be the most effective means to promote
    service on tribal lands.

## Criteria for Renewal

80. In this section, we seek comment on whether to amend our rules to
    clarify or modify the requirements and procedures of the renewal
    process for licenses in the 700 MHz Band, including both licenses
    that have already been auctioned and those that have yet to be
    auctioned. We seek comment on the possibility of amending the
    Commission's rules to state more explicitly the criteria for renewal
    that apply to 700 MHz Band authorizations under Part 27, regardless
    of whether licensees are involved in a comparative hearing. In
    addition, to the extent the Commission's renewal requirements and at
    least some of its performance requirements apply at the end of a
    license term, we seek comment on the advantages and disadvantages of
    combining any performance requirements applicable to 700 MHz Band
    licensees with the criteria that the Commission would review in a
    license renewal application. We also seek comment on whether to use
    these criteria to replace the procedures for the filing of competing
    applications at renewal time. For instance, the licenses could
    revert to the Commission for re-auction should a license not be
    renewed. We also ask commenters to address whether any amendments of
    our rules on the renewal process should be limited to the
    unauctioned 700 MHz Band licenses, or whether any such amendments
    also should apply to those 700 MHz Band licenses which already have
    been auctioned in order to have a unitary regime for these
    licenses.[^181]

81. We first seek comment on whether 700 MHz Band licensees should be
    subject to requirements at renewal in addition to any end-of-term
    performance requirements.[^182] As stated above, licensees are
    required to meet "substantial service" under the performance
    requirements of Section 27.14(a) as well as in the context of any
    renewal proceedings under Section 27.14(b) of the Commission's
    rules.[^183] Although renewal of 700 MHz Band licensees is governed
    under Section 27.14(b)-(d) of the Commission's rules, which
    indicates that a comparative process is used to choose among renewal
    applicants based on certain showings, the rule does not describe the
    factors that the Commission will consider in connection with a
    license renewal application to the extent no competing application
    is filed. When establishing the Part 27 rules that apply to the 700
    MHz Band, the Commission stated only that: "We will *require* that a
    \[Part 27\] licensee's *renewal application include* at a minimum
    the following showing to claim renewal expectancy: (1) a description
    of current service in terms of geographic coverage and population
    served or links installed; (2) an explanation of the licensee's
    record of expansion, including a timetable for the construction of
    new base sites or links to meet changes in demand for service; (3) a
    description of the licensee's investments in its system; and (4)
    copies of any FCC orders finding the licensee to have violated the
    Communications Act or any FCC rule or policy, and a list of any
    pending proceedings that relate to any matter described by the
    requirements for the renewal expectancy."[^184] Accordingly, we seek
    comment on whether we should amend our rules to define the standards
    and informational filings that apply to license renewal applications
    for these licenses.[^185] In particular, we seek comment on the
    requirements (or factors) that should be considered for 700 MHz Band
    licensees at renewal, including: the level of service and whether it
    was "substantial"; whether service was ever interrupted and
    discontinued; whether service has been provided to any rural areas;
    whether a licensee has received any requests from others seeking to
    enter into spectrum leasing arrangements, and whether it has entered
    into any such arrangements; and any other factors typically
    associated with assessments of a licensee's level of service to the
    public. Commenters should address which, if any, of these or other
    elements should be codified as requirements for renewal or, in the
    alternative, whether the Commission should list factors that are
    relevant to a licensee's demonstration that renewal is in the public
    interest.

82. In addition, we seek comment on whether the Commission should
    integrate Section 27.14(a)'s "substantial service" performance
    requirement, and any new end-of-term requirements,[^186] into the
    renewal process for 700 MHz Band licenses.[^187] We note that, in
    its orders, the Commission focused on renewal in the context of
    partitioned and disaggregated licenses,[^188] and stated that to the
    extent a licensee meets "the \[substantial service\] performance
    requirement\[\] . . ., *\[it\] will be deemed to have met this
    element of the renewal expectancy requirement* regardless of which
    of the construction options . . . the licensee has chosen."[^189]
    Accordingly, to the extent the Commission's renewal requirements and
    at least some of its performance requirements apply at the end of a
    license term,[^190] we seek comment on the advantages and
    disadvantages of combining these requirements into, for example, a
    single substantial service provision in Section 27.14 of the
    Commission's rules. For instance, instead of requiring the
    enforcement of separate rules regulating construction or
    discontinuance of service,[^191] the Commission could replace such
    end-of-term / mid-term requirement(s) and require 700 MHz Band
    licensees to submit informational showings in their renewal
    applications based on factors that could be used to determine
    whether a grant of renewal is in the public interest. Under this
    approach, all licensees, included those holding authorizations that
    have been assigned, transferred, partitioned or disaggregated during
    their license terms, would be subject to review on these criteria,
    and the Commission would not need to have separate procedures for
    assessing satisfaction of construction standards (*e.g.*, standards
    pertaining to partitioned licenses under Section 27.15(d)(1)), and
    for determining whether renewal criteria have been met.[^192] In the
    event that we decide to integrate performance requirements and
    end-of-term requirements into the renewal process for 700 MHz Band
    licensees, we seek comment on whether licensees who fail to meet
    such requirements could be subject to potential forfeiture
    penalties. [^193] If, for example, a licensee files for renewal, but
    fails to meet the substantial service requirement, we seek comment
    on whether it could be subject to forfeiture penalties under this
    approach.

83. Finally, under a modified or combined Section 27.14 standard,[^194]
    we seek comment on whether to use codified renewal criteria to
    measure the 700 MHz Band licensees' level of service instead of
    relying on any performance incentives that may arise due to the
    possibility of competing applications being filed against a renewal
    (with the concomitant need for the incumbent to demonstrate
    "substantial service" to receive a renewal expectancy preference).
    Although Section 27.14(b)-(d) of Commission rules indicates that a
    comparative process is used to choose among renewal and competing
    applicants, it is unclear what type of comparative hearing is to be
    employed. Under a modified Section 27.14 of the Commission's rules,
    the Commission could eliminate the filing of competing applications
    at renewal time and, for example, adopt a process by which licenses
    revert to the Commission for re-auction if a license is not renewed.
    To the extent such an approach is adopted, commenters should address
    the procedures for renewal processing, the components of a renewal
    filing and any demonstrations of "substantial" service or other
    requirements, provisions for petitions to deny renewal applications,
    and procedures governing dismissal/denial of renewal applications
    and subsequent re-licensing through competitive bidding to competing
    bidders.[^195] In addition, we seek comment on whether the petition
    to deny process, coupled with the ability of a petitioner to
    participate in any subsequent auction to re-license spectrum that
    reverts to the Commission for lack of renewal, creates sufficient
    incentives to challenge inferior service or poor qualifications of
    licensees at renewal and thereby protect the public interest.

## Length of License Terms

84. In this section, we seek comment on whether the license terms
    applicable to both the unauctioned and auctioned spectrum in the 700
    MHz Band should be revised and, if so, in what manner.[^196] Section
    27.13(b) of the Commission's rules provides that initial license
    authorizations for spectrum in the 700 MHz Band will extend until
    January 1, 2015, except that a Part 27 licensee commencing broadcast
    services will be required to seek renewal of its license for such
    services at the termination of the eight-year term following
    commencement of such operations.[^197] We also ask whether the
    Commission should establish a uniform license term regardless of
    regulatory status associated with the services being provided.

85. We seek comment on whether the license terms for both the
    unauctioned and already auctioned 700 MHz Band licenses should be
    revised in consideration of the delays in auctioning most of the
    licenses in the 700 MHz Band,[^198] the new mandate under the DTV
    Act to auction all spectrum in the 700 MHz Band by a date
    certain,[^199] and/or the establishment in the DTV Act of a date
    certain for the end of the DTV transition.[^200] Comments should
    address the impact that these factors may have on the development
    and use of the spectrum in the context of the appropriate license
    term length for the 700 MHz Band. We note that the period extending
    from the new firm deadline for the DTV transition, February 17,
    2009, to the current January 1, 2015, termination date set forth in
    Section 27.13(b) is shorter than both the ten-year license term
    generally afforded to many other (including CMRS) licensees and the
    eight-year average time for complying with the performance
    requirements which the Commission considered when the current rule
    was first adopted in 2000.[^201] We seek comment on whether the
    changes to the DTV transition mandated by the DTV Act warrant a
    modification of the license terms currently in Section 27.13(b) of
    the rules. We also seek comment on other considerations and
    developments that would support (or not support) extending or
    revising the license terms of these licenses.

86. In the event that a change in the license term for these 700 MHz
    Band licenses is warranted, we seek comment on what new license
    terms should be adopted. First, we invite comment on whether the
    Commission should adopt a new initial license term that would extend
    to a date certain, and what that date should be. For instance, we
    seek comment on whether the license term should extend until
    February 18, 2017. Consistent with the Commission's adoption of a
    license term that recognized an eight-year period after the
    then-target date for the end of the DTV transition,[^202] a new
    license term extending until February 18, 2017 would cover a period
    of eight years after the new firm deadline for the transition. We
    also seek comment on whether some other specific date may be more
    appropriate. In addressing this or any other potential license term,
    including those considered below, we ask that commenters favoring a
    particular proposal specify the appropriate license term and include
    a basis for the term proposed. We ask that commenters discuss
    whether and how any proposal suggested might provide regulatory
    certainty and stability, encourage investment in and development of
    the 700 MHz Band, and better serve the public interest.

87. In the alternative, we seek comment on whether a new license term
    should extend for a specified period of time rather than be tied to
    a specific termination date and, if so, what that period of time
    should be. For instance, we seek comment on whether the license term
    should be amended to extend for a period not to exceed ten years
    from the date of initial issuance or renewal. In the Lower 700 MHz
    Band, the Commission declined to adopt a ten-year license term
    because the eight additional years beyond the earliest date that
    incumbents could then have been required to vacate the band was seen
    as providing new licensees a reasonable period to meet performance
    requirements.[^203] We note that many of the Part 27 services
    covered under Section 27.13 generally have a ten-year license
    term,[^204] and there have been significant changes to the DTV
    transition and delays in auctioning the majority of the 700 MHz
    Band. There may also be factors that relate specifically to the 700
    MHz Band that support adopting a license term of some other length
    than ten years.[^205] Thus, we seek comment on whether Section
    27.13(b) should be revised to provide a different term, either
    longer than ten years (*e.g*., 15 years), or less than ten years if
    conditions warrant such a change.

88. We ask that comments on the length of license terms also address our
    discussion in this Notice concerning potential revisions to the
    performance requirements for licensees in the 700 MHz Band.[^206]
    The "substantial service" construction requirement in Section
    27.14(a) of our rules requires that licensees make a "substantial
    service" showing "within the prescribed license term set forth in §
    27.13."[^207] If we alter the length of license term, commenters
    should consider whether we should modify or amend the existing
    performance requirements in Section 27.14.

89. Finally, we seek comment on whether to establish a uniform license
    term for all services provided by 700 MHz Band licensees, regardless
    of regulatory status. Licensees in the 700 MHz Band are authorized
    to provide a combination of different services in a single license:
    common carrier, non-common carrier, private internal communications,
    and broadcast services.[^208] These licensees also are permitted,
    consistent with Commission rules, to switch their regulatory status
    at any time prior to the end of their license period.[^209] As
    reflected in Section 27.13(b) of our rules, to the extent licensees
    offer services that qualify as broadcasting under the Communications
    Act, an eight-year license term applies from the onset of broadcast
    operations, whereas the license term extends until January 1, 2015
    for non-broadcast operations.[^210] We seek comment on the impact of
    the two different license terms set forth in Section 27.13(b),
    depending on the service offered, on those situations where a
    licensee deploys services with both broadcast and non-broadcast
    components under a single license authorization. We also seek
    comment on the operation and impact of the two license terms on
    those situations where a licensee changes the type of service
    offered between broadcast and non-broadcast services during the term
    of the license. We ask that commenters address the effect that these
    dual license terms applicable to the same license authorization have
    had, or will have, on matters such as licensing, development, use,
    and renewal with respect to these 700 MHz Band licensees. We seek
    comment on whether the Commission should consider implementing a
    uniform license term for all services and, if so, how any such
    uniformity could be realized given legal and/or regulatory
    requirements.[^211] Comment also is requested on whether the
    Commission should maintain a distinct term for licenses in which
    licensees offer broadcast services. We also seek comment on what
    changes, if any, should be made to our current approach of
    administering different license terms within a single authorization.

## Power Limits and Related Requirements

90. In this section of the Notice we seek comment on whether to modify
    the power limits that apply to base stations operating in either the
    unauctioned or auctioned spectrum in the 700 MHz Band. Currently,
    the power limit for base stations operating in the Upper 700 MHz
    Band is 1 kW ERP[^212] and the power limit for base stations
    operating in the Lower 700 MHz Band is 50 kW ERP.[^213] The 1 kW ERP
    power limit in the Upper 700 MHz Band, along with other technical
    safeguards, was designed to enable commercial licensees to implement
    mobile and fixed systems without causing harmful interference to
    adjacent band Upper 700 MHz Band Public Safety and Guard Band
    operations.[^214] The 50 kW ERP power limit in the Lower 700 MHz
    Band was adopted to allow high-power broadcast, as well as mobile
    and fixed services, in the band.[^215] To ensure that transmissions
    in excess of 1 kW in the Lower 700 MHz Band would not cause
    interference to adjacent band operations, the Commission required
    Lower 700 MHz Band licensees operating base stations at power levels
    above 1 kW ERP to comply with a power flux density (PFD) limit at
    all locations on the ground within one kilometer of their base
    stations.[^216]

91. *Upper 700 MHz Band*. We seek comment on whether, and to what
    extent, the power limit of 1 kW ERP, which currently applies to base
    stations operating in Blocks C and D of the Upper 700 MHz Band,
    should be revised. Specifically, commenters should address whether a
    need or demand exists for a higher power limit in the Upper 700 MHz
    Band and what additional types of services could be implemented in
    the band if a higher power limit is permitted. We request that any
    commenters that propose raising the power limit in the Upper 700 MHz
    Band submit a technical analysis showing how their proposal would
    not increase the risk of interference to adjacent operations.
    Because we are concerned that any increase in power beyond the
    current 1 kW ERP limit could cause interference to Public Safety and
    Guard Band systems operating in the Upper 700 MHz Band, commenters
    should address whether permitting higher powered transmissions could
    cause interference to Public Safety or Guard Band operations.[^217]
    Specifically, we seek comment on whether a higher power limit, along
    with a 3 milliwatts/m^2^ or similar PFD limit, will adequately
    protect Public Safety and Guard Band mobile and base station
    operations from interference. If not, what PFD limits, or other
    restrictions, would be necessary to protect such operations?[^218]
    Of course, given the importance we attach to preventing interference
    to Public Safety operations,[^219] we will not adopt any
    modifications to our power limit rules that would cause interference
    to such operations in the Upper 700 MHz Band.

92. We seek comment as well on whether a PFD limit would necessarily
    have to be applied to high-powered transmissions originating in
    *all* upper and lower C and D block spectrum in the Upper 700 MHz
    Band,[^220] or whether it might be necessary to apply PFD limits to
    stations operating in only certain Upper 700 MHz Band spectrum
    blocks to protect Public Safety and Guard Band operations. In the
    event the Commission finds that certain spectrum blocks could
    accommodate such transmissions without the need for a PFD limit, we
    ask commenters whether we should permit high-powered transmissions
    only on these spectrum blocks.

93. We also ask whether, if commenters believe that a general approach
    of employing PFD limits may not be sufficiently effective in
    preventing interference from higher-powered transmissions to
    adjacent channel operations, or if such transmissions could
    potentially cause interference to co-channel operations, we should
    limit any increase in permissible power to, *e.g.*, 20 kW, 10 kW, or
    5 kW ERP, or not modify the current 1 kW ERP power limit at all.
    Commenters should also address whether such "intermediate" power
    limits in the Upper 700 MHz Band might be able to be implemented in
    some, or all, of the commercial Upper 700 MHz Band spectrum without
    the need for PFD limits to protect adjacent channel operations. In
    addition, regardless of whether we decide to increase the power
    limit for base stations in the Upper 700 MHz Band, we ask if we
    should, consistent with PCS and AWS, double the existing power
    limit, to 2 kW ERP, for rural areas only in the Upper 700 MHz Band
    (without the need for a PFD limit) and what benefit such an increase
    might provide in the provision of service in rural areas.[^221]

94. Finally, we seek comment on whether any additional modifications to
    our Upper 700 MHz Band power limit rules would be appropriate. For
    example, in the event that we authorize base stations operating in
    all or in portions of the commercial blocks in the Upper 700 MHz
    Band to employ higher powered transmissions, should we adopt the
    same notification procedures for high-powered Upper 700 Band
    operations that we currently apply to high-powered Lower 700 MHz
    Band operations, and will such notification procedures adequately
    protect other Upper 700 MHz Band licensees from interference?[^222]

95. *Lower 700 MHz Band*. We also seek comment on whether to revise the
    50 kW ERP power limit that applies to base stations operating in the
    Lower 700 MHz Band. In the first instance, we seek comment on
    whether to revise the power limit with respect to the unauctioned
    portion of the Lower 700 MHz Band. For example, commenters should
    discuss whether a need or demand exists for such high-powered
    transmissions in the band, and the impact, if any, a reduction in
    the power limit would have on current and future services and the
    efficient utilization of this spectrum. Commenters also should
    address the extent to which current and anticipated use of the Lower
    700 MHz Band would require a 50 kW ERP power limit.

96. We also ask whether we should reduce the current power limit to,
    *e.g.*, 20 kW, 10 kW, 5 kW ERP, or even to 1 kW ERP because of
    possible concerns that the Lower 700 MHz Band PFD limit does not
    adequately limit adjacent channel interference from 50 kW ERP
    transmissions or believe that the potential exists for co-channel
    interference from transmissions at that power level. Commenters, in
    responding to this request for comment, should indicate what types
    of services they believe might benefit from and/or require the use
    of power levels lower than 50 kW ERP. Finally, commenters should
    address whether we should, consistent with PCS and AWS, adopt a
    power limit of 2 kW ERP for rural areas only (without the need for a
    PFD limit) for base stations operating in the Lower 700 MHz
    Band.[^223]

97. We also seek comment on whether any revisions to the Lower 700 MHz
    Band power limit should be uniformly applied across the entire band,
    *i.e*., including the existing licenses in Blocks C and D as well as
    the unauctioned Blocks A, B, and E. We seek comment on whether, and
    to what extent, applying a revised power limit to existing licenses
    in Blocks C and D to provide for uniform treatment across the band,
    will promote the public interest, convenience, and necessity, or the
    provisions of the Communications Act, as amended.[^224] We also ask
    that commenters address whether any public interest benefits
    resulting from a change in the Lower 700 MHz Band power limit would
    outweigh any additional costs that may be associated with such a
    change.

98. Finally, we seek comment on whether any additional modifications to
    our Lower 700 MHz Band power limit rules would be appropriate. For
    example, we seek comment on whether the current notification
    procedures that apply to high-powered Lower 700 MHz Band operations
    will adequately protect adjacent band Lower 700 MHz Band licensees
    from interference.[^225]

## 911/E911 and Hearing Aid-Compatible Wireless Handsets

99. In this section, we tentatively conclude that we should amend our
    Part 20 rules to clarify that certain services offered using both
    unauctioned and previously auctioned spectrum in the 700 MHz Band
    and spectrum in other bands subject to Part 27, such as AWS-1,
    should be subject to the 911/E911[^226] and hearing
    aid-compatibility requirements.[^227]

100. With regard to 911 and E911, the Commission previously has
     recognized the critical public safety benefits of these services:

     Wireless E911 is a vital step toward applying wireless technology
     to improving public safety. For many Americans, the ability to call
     for help in an emergency is the principal reason they own a
     wireless phone. A significant percentage of all 911 calls
     nationwide are made from wireless phones, and this percentage is
     growing. E911 will save lives and property by helping emergency
     services personnel do their jobs more quickly and efficiently.
     Automatic Location Identification (ALI) capability will permit
     rapid response in situations where callers are disoriented,
     disabled, unable to speak, or do not know their location by
     allowing for the immediate dispatch of emergency assistance to the
     location of the emergency. Wireless E911 provides a critical
     safety-of-life feature, and it should be deployed as quickly and
     ubiquitously as possible.[^228]

     The Commission also has noted that "911 service is critical to our
     Nation's ability to respond to a host of crises,"[^229] and that
     "access to 911 service has dramatically improved the ability of
     emergency personnel to respond quickly to people in
     distress."[^230]

101. In addition, the hearing aid-compatibility requirements imposed on
     digital wireless phone manufacturers and digital wireless service
     providers ensure access to telecommunications services by
     individuals with hearing disabilities.  The Commission has noted
     that, in addition to the public safety benefits such access
     affords, enhancing the ability of individuals with hearing
     disabilities to access wireless telecommunications services would
     extend to those individuals "the social, professional, and
     convenience benefits" that accrue to other wireless
     telecommunications users.[^231]

102. In the *E911 Scope Order* adopted in 2003, the Commission broadened
     the scope of its wireless E911 rules, which applied only to
     licensees of particular services specified in the rules, so that
     the requirements extended to various other services and devices to
     the extent that they met certain specified criteria.[^232] Under
     that order, a service or device provider, whether or not it is a
     licensee, is to be subject to E911 rules based on whether: (1) it
     offers real-time, two-way voice service that is interconnected to
     the public switched network on either a stand-alone basis or
     packaged with other telecommunications services; (2) the customers
     using the service or device have a reasonable expectation of access
     to 911 and E911 services; (3) the service competes with traditional
     CMRS or wireline local exchange service; and (4) it is technically
     and operationally feasible for the service or device to support
     E911.[^233] Applying these criteria, the Commission determined in
     the *E911 Scope Order* to amend its rules to include additional
     service offerings within the scope of the E911 requirements,
     including telematics, and resold and prepaid mobile wireless
     services.

103. Sections 20.18(a) and 20.19(a) currently specify that service
     providers within certain enumerated radio services (cellular, PCS,
     and SMR) are subject to the 911/E911 and hearing aid-compatibility
     requirements.[^234] These rule sections have not been expanded to
     include licensees providing service in later authorized, additional
     wireless services such as in the 700 MHz Band, although many of the
     services permitted in the 700 MHz Band can be expected to be very
     similar to services presently subject to the 911/E911 and hearing
     aid-compatibility requirements.

104. Based on the criteria established in the *E911 Scope Order*, we
     tentatively conclude that services provided in the 700 MHz Band
     that meet these criteria should be subject to the 911/E911
     requirements. We also tentatively conclude that services provided
     in the 700 MHz Band that meet these same criteria, with some minor
     adjustments respecting access to hearing aid-compatible phones,
     should be subject to the hearing aid-compatibility requirements.
     Further, we tentatively conclude that the public safety and
     accessibility objectives of the 911/E911 and hearing aid
     compatibility rules would be served by application of these rules
     to services provided in the 700 MHz Band and meeting the above
     criteria. We seek comment on these tentative conclusions.

105. We expect as well that other services provided, at least in part,
     using spectrum subject to Part 27, such as AWS-1, may meet the
     above criteria and thus also should be subject to 911/E911 and
     hearing aid-compatibility requirements. Accordingly, we seek
     comment on a tentative conclusion that services provided using
     bands subject to Part 27, including AWS-1, that meet these criteria
     should also be subject to the 911/E911 and hearing
     aid-compatibility requirements. We also seek comment on what
     changes to the industry standard governing digital wireless
     handsets compatibility with hearing aids, ANSI C63.19-2006, would
     be necessary in order to establish measurement methods and
     parametric requirements for services provided in the 700 MHz
     Band.[^235] In addition, we seek comment on the time necessary to
     complete such changes to the standard.

106. Finally, as noted above, Sections 20.18(a) and 20.19(a) presently
     limit the applicability of the 911/E911 and hearing aid
     compatibility requirements to specific radio services. As a result,
     we would need to propose rule amendments to apply the 911/E911 and
     hearing aid-compatibility requirements each time a new service is
     authorized in the future that would meet the criteria discussed
     above. Therefore, we seek comment on whether we should amend
     Sections 20.18(a) and 20.19(a) to ensure that all similar wireless
     services that meet the four criteria discussed above will be
     subject to the 911/E911 and hearing aid-compatibility requirements.

# procedural matters

## Regulatory Flexibility Act

107. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. §
     603, the Commission has prepared an Initial Regulatory Flexibility
     Analysis (IRFA) of the possible significant economic impact on
     small entities of the policies and rules addressed 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 filed in response to the
     Notice, and must have a separate and distinct heading designating
     them as responses to the IRFA. Although Section 213 of the
     Consolidated Appropriations Act 2000 provides that the RFA shall
     not apply to the rules and competitive bidding procedures for
     frequencies in the 746-806 MHz Band,[^236] we nevertheless believe
     that it would serve the public interest to analyze the possible
     significant economic impact of the proposed policy and rule changes
     in this band on small entities. Accordingly, the IRFA in the
     Appendix of this Notice includes an analysis of (and seeks comment
     on) this impact in connection with all spectrum that falls within
     the scope of this Notice, including spectrum in the 746-806 MHz
     Band.

## Paperwork Reduction Act of 1995

108. This document contains proposed new or modified information
     collection requirements. The Commission, as part of its continuing
     effort to reduce paperwork burdens, invites the general public and
     the Office of Management and Budget (OMB) to comment on the
     information collection requirements contained in this document, as
     required by the Paperwork Reduction Act of 1995, Public Law 104-13.
     Public and agency comments are due 30 days after date of
     publication in the Federal Register. Comments should address: (a)
     whether the proposed collection of information is necessary for the
     proper performance of the functions of the Commission, including
     whether the information shall have practical utility; (b) the
     accuracy of the Commission\'s burden estimates; (c) ways to enhance
     the quality, utility, and clarity of the information collected;
     and (d) ways to minimize the burden of the collection of
     information on the respondents, including the use of automated
     collection techniques or other forms of information technology. In
     addition, pursuant to the Small Business Paperwork Relief Act of
     2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we seek
     specific comment on how we might "further reduce the information
     collection burden for small business concerns with fewer than 25
     employees.\" We note, however, that Section 213 of the Consolidated
     Appropriations Act 2000 provides that rules governing frequencies
     in the 746-806 MHz Band become effective immediately upon
     publication in the Federal Register without regard to certain
     sections of the Paperwork Reduction Act.[^237] We are therefore not
     inviting comment on any information collections that concern
     frequencies in the 746-806 MHz Band.

## Other Procedural Matters

### *Ex Parte* Presentations

109. The rulemaking this Notice initiates shall be treated as a
     "permit-but-disclose" proceeding in accordance with the
     Commission's *ex parte* rules.[^238] Persons making oral *ex parte*
     presentations are reminded that memoranda summarizing the
     presentations must contain summaries of the substance of the
     presentations and not merely a listing of the subjects discussed.
     More than a one or two sentence description of the views and
     arguments presented generally is required.[^239] Other requirements
     pertaining to oral and written presentations are set forth in
     Section 1.1206(b) of the Commission's rules.[^240]

### Comment Filing Procedures

110. Pursuant to Sections 1.415 and 1.419 of the Commission's
     rules,[^241] interested parties may file comments and reply
     comments regarding the Notice on or before the dates indicated on
     the first page of this document. All filings related to this Notice
     of Proposed Rulemaking should refer to WT Docket No. 06-150, CC
     Docket No. 94-102, and WT Docket No. 01-309. Comments may be filed
     using: (1) the Commission's Electronic Comment Filing System
     (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by
     filing paper copies.[^242]

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
    the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   ECFS filers must transmit one electronic copy of the comments
        for WT Docket No. 06-150, CC Docket No. 94-102, and WT Docket
        No. 01-309. In completing the transmittal screen, filers should
        include their full name, U.S. Postal Service mailing address,
        and WT Docket No. 06-150, CC Docket No. 94-102, and WT Docket
        No. 01-309. Parties may also submit an electronic comment by
        Internet e-mail. To get filing instructions, filers should send
        an e-mail to <ecfs@fcc.gov> and include the following words in
        the body of the message, "get form." A sample form and
        directions will be sent in response.

-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). All filings must be addressed to the Commission's Secretary,
    Marlene H. Dortch, Office of the Secretary, Federal Communications
    Commission, 445 12^th^ Street, S.W., Washington, DC, 20554. Parties
    who choose to file by paper should also send a copy of their
    comments to: Michael Rowan, Special Counsel, Spectrum & Competition
    Policy Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, 445 12th Street, S.W., Portals I, Room
    6315, Washington, DC, 20554; and Bill Stafford, Special Counsel,
    Spectrum & Competition Policy Division, Wireless Telecommunications
    Bureau, Federal Communications Commission, 445 12th Street, S.W.,
    Portals I, Room 6221, Washington, DC, 20554.

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-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, N.E., Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of [before]{.underline} entering the
    building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail should
    be addressed to 445 12^th^ Street, S.W., Washington DC 20554.

111. Parties shall serve one copy with the Commission's copy contractor,
     Best Copy and Printing, Inc. (BCPI), Portals II, Room CY-B402, 445
     12^th^ Street, S.W., Washington, D.C. 20554, (202) 488-5300, or via
     e-mail to <fcc@bcpiweb.com>.

112. Documents in WT Docket No. 06-150, CC Docket No. 94-102, and WT
     Docket No. 01-309 will be available for public inspection and
     copying during business hours at the FCC Reference Information
     Center, Portals II, Room CY-A257, 445 12^th^ Street, S.W.,
     Washington, D.C. 20554. The documents may also be purchased from
     BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202)
     488-5562, e-mail <fcc@bcpiweb.com>.

### Accessible Formats

113. To request materials in accessible formats for people with
     disabilities (Braille, large print, electronic files, audio
     format), send an e-mail to <FCC504@fcc.gov> or call the Consumer &
     Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
     (TTY). Contact the FCC to request reasonable accommodations for
     filing comments (accessible format documents, sign language
     interpreters, CARTS, *etc*.) by e-mail: <FCC504@fcc.gov>; phone:
     202-418-0530 (voice), 202-418-0432 (TTY).

# ordering clauses

114. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 5(c),
     7, 10, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g),
     222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 302, 303, 307, 308,
     309, 310, 311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615,
     and 710 of the Communications Act of 1934, as amended, 47 U.S.C. §§
     151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214,
     222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5),
     251(e)(3), 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319,
     324, 332, 333, 336, 337, 534, 535, and 610 that this NOTICE OF
     PROPOSED RULEMAKING, FOURTH FURTHER NOTICE OF PROPOSE RULEMAKING,
     AND SECOND FURTHER NOTICE OF PROPOSED RULEMAKING are hereby
     ADOPTED.

115. IT IS FURTHER ORDERED that pursuant to applicable procedures set
     forth in 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 the
     NOTICE OF PROPOSED RULEMAKING, FOURTH FURTHER NOTICE OF PROPOSE
     RULEMAKING, AND SECOND FURTHER NOTICE OF PROPOSED RULEMAKING on or
     before 30 days after publication in the Federal Register and reply
     comments on or before 60 days after publication in the Federal
     Register.

116. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of these Notices, including the Initial Regulatory
     Flexibility Analysis, to the Chief Counsel for Advocacy of the
     Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^243] the Federal Communications Commission (Commission) has
    prepared this Initial Regulatory Flexibility Analysis (IRFA) of the
    possible significant economic impact on a substantial number of
    small entities by the policies and rules considered in this Notice
    of Proposed Rulemaking, WT Docket No. 06-150, Fourth Further Notice
    of Proposed Rulemaking, CC Docket No. 94-102, and Second Further
    Notice of Proposed Rulemaking, WT Docket No. 01-309.[^244] Written
    public comments are requested on this IRFA. Comments must be
    identified as responses to the IRFA and must be filed by the
    deadlines for comments on the *Notice* provided on page one of this
    *Notice*. The Commission will send a copy of this *Notice*,
    including this IRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration (SBA).[^245] In addition, this *Notice* and
    IRFA (or summaries thereof) will be published in the Federal
    Register.[^246]

2.  Although Section 213 of the Consolidated Appropriations Act 2000
    provides that the RFA shall not apply to the rules and competitive
    bidding procedures for frequencies in the 746-806 MHz Band,[^247]
    the Commission believes that it would serve the public interest to
    analyze the possible significant economic impact of the proposed
    policy and rule changes in this band on small entities. Accordingly,
    this IRFA contains an analysis of this impact in connection with all
    spectrum that falls within the scope of this *Notice*, including
    spectrum in the 746-806 MHz Band.

    A.  **Need for, and Objectives of, the Proposed Rules**

3.  In the *Notice*, the Commission seeks comment on possible changes to
    the rules governing wireless licenses in the 698-746, 747-762, and
    777-792 MHz spectrum bands (herein, the "700 MHz Band"), spectrum
    that does not include the Upper 700 MHz Guard Bands nor the portions
    of the Upper 700 MHz Band that have been allocated for public safety
    services. These spectrum bands in the 698-806 MHz band have been
    allocated to new fixed, mobile, and broadcast services. Under the
    Digital Television and Public Safety Act of 2005 (DTV Act), the
    Commission is required to commence an auction of previously
    unauctioned spectrum in the 700 MHz Band no later than January
    28, 2008. In response to the changes made by the DTV Act affecting
    the 700 MHz Band, and because more than four years have passed since
    the Commission previously established band plans and service rules
    for this spectrum, the *Notice* revisits some of the Commission's
    earlier decisions regarding the service rules for licenses in this
    band.

4.  Specifically, the *Notice* seeks comment on whether there is a need
    to revise the size of the geographic service areas for the remaining
    unauctioned spectrum in the band, including the possibility of using
    smaller areas, such as the 734 Cellular Market Areas (CMAs) composed
    of Metropolitan Statistical Areas (MSAs) and Rural Service Areas
    (RSAs). The *Notice* then seeks comment on whether to modify the
    size of certain 700 MHz Band spectrum blocks, including the
    possibility of dividing Block D in the Upper 700 MHz Band into
    smaller blocks. The *Notice* also requests input on whether to add
    or revise performance requirements for unauctioned spectrum,
    including such alternatives as specific construction benchmarks. In
    addition, the *Notice* seeks comment on options that may facilitate
    access to spectrum in the secondary market for all licenses in the
    700 MHz Band, as well as on policies the Commission could implement
    to promote service to tribal lands.

5.  The *Notice* then seeks comment on several additional issues
    relating to both auctioned and unauctioned licenses in the 700 MHz
    Band. For these licenses, comment is sought on whether to clarify or
    modify the rules and criteria for license renewal. The *Notice* also
    seeks comment on whether to revise and possibly extend the term of
    licenses, as well as whether to modify the existing power limits in
    both the Upper 700 MHz and the Lower 700 MHz Bands. In light of the
    importance of public safety operations in the 700 MHz Band, the
    Commission states that it would take no action that would cause
    harmful interference to public safety licensees in the band.

6.  Finally, the *Notice* requests comment on the tentative conclusion
    that services provided by licensees in the 700 MHz Band, and in
    other bands subject to Part 27 of the rules, should be subject to
    E911 and hearing aid-compatibility requirements to the same extent
    that such services would be covered if provided in other bands. It
    then seeks comment on how to modify Commission rules to ensure that
    they include all similar wireless services, herein referred to as
    Wireless Radio Services (WRS).

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B.  **Legal Basis**

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7.  The potential actions about which comment is sought in this *Notice*
    would be authorized pursuant to the authority contained in Sections
    1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 214, 222(d)(4)(A)-(C),
    222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 302,
    303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336,
    337, 614, 615, and 710 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 152, 154(i), 155(c), 157, 160, 201, 202,
    208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A),
    222(h)(4)-(5), 251(e)(3), 301, 302, 303, 307, 308, 309, 310, 311,
    314, 316, 319, 324, 332, 333, 336, 337, 534, 535, and 610.

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C.  **Description and Estimate of the Number of Small Entities to Which
    the Rules Will Apply**

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8.  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.[^248] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^249] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^250] 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).[^251]

9.  This *Notice* could result in rule changes that, if adopted, would
    create new opportunities and obligations for Commission wireless
    licensees. Under the *Notice*, any of the changes to the
    Commission's rules which may occur as a result of the *Notice* would
    be limited to Upper 700 MHz and Lower 700 MHz Band licensees in the
    698-746, 747-762, and 777-792 MHz spectrum bands, with one
    exception. In the *Notice*, the Commission seeks comment on the
    tentative conclusion that services provided in the 700 MHz Band, and
    in other bands subject to Part 27, should be subject to requirements
    concerning 911/E911 and hearing aid-compatible handsets to the
    extent they meet certain criteria. The *Notice* then seeks comment
    on how to modify Commission rules to ensure that they include all
    similar WRS. Thus, because such revisions potentially could affect
    small entity licensees holding licenses in many wireless services
    (and not just bands which are subject to Part 27 of the Commission's
    rules), this discussion includes estimates of the number of small
    entities in each of the categories of WRS identified below.

10. Since this rulemaking proceeding applies to multiple services, this
    IRFA analyzes the number of small entities affected on a
    service-by-service basis. When identifying small entities that could
    be affected by the Commission's new rules, this IRFA provides
    information describing auctions results, including the number of
    small entities that were winning bidders. However, the number of
    winning bidders that qualify as small businesses at the close of an
    auction does not necessarily reflect the total number of small
    entities currently in a particular service. The Commission does not
    generally require that licensees later provide business size
    information, except in the context of an assignment or transfer of
    control application where unjust enrichment issues are implicated.
    Consequently, to assist the Commission in analyzing the total number
    of potentially affected small entities, the Commission requests
    commenters to estimate the number of small entities that may be
    affected by any rule changes that might result from this *Notice*.

***Part 27 Miscellaneous Wireless Communications Services (MWCS)***

11. **Wireless Communications Services.** This service can be used for
    fixed, mobile, radiolocation, and digital audio broadcasting
    satellite uses in the 2305-2320 MHz and 2345-2360 MHz bands. 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.[^252] The SBA has
    approved these definitions.[^253] The Commission auctioned
    geographic area licenses in the WCS service. In the auction, which
    commenced on April 15, 1997 and closed on April 25, 1997, there were
    seven bidders that won 31 licenses that qualified as very small
    business entities, and one bidder that won one license that
    qualified as a small business entity.

12. **700 MHz Guard Band Licenses.** In the *700 MHz Guard Band Order*,
    the Commission adopted size standards for "small businesses" and
    "very small businesses" for purposes of determining their
    eligibility for special provisions such as bidding credits and
    installment payments.[^254] A small business in this service is an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^255] Additionally, a "very small
    business" is an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^256] SBA approval
    of these definitions is not required.[^257] An auction of 52 Major
    Economic Area (MEA) licenses commenced on September 6, 2000, and
    closed on September 21, 2000.[^258] Of the 104 licenses auctioned,
    96 licenses were sold to nine bidders. Five of these bidders were
    small businesses that won a total of 26 licenses. A second auction
    of 700 MHz Guard Band licenses commenced on February 13, 2001, and
    closed on February 21, 2001. All eight of the licenses auctioned
    were sold to three bidders. One of these bidders was a small
    business that won a total of two licenses.[^259]

13. **Upper 700 MHz Band Licenses.** The Commission released a *Report
    and Order* authorizing service in the Upper 700 MHz band.[^260] An
    auction for these licenses, previously scheduled for January 13,
    2003, was postponed.[^261]

14. **Lower 700 MHz Band Licenses.** The Commission adopted criteria for
    defining three groups of small businesses for purposes of
    determining their eligibility for special provisions such as bidding
    credits.[^262] The Commission has defined a small business as an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^263] 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 \$15 million for the preceding three years.[^264] Additionally,
    the Lower 700 MHz Band has a third category of small business status
    that may be claimed for Metropolitan/Rural Service Area (MSA/RSA)
    licenses. The third category is entrepreneur, which is defined as an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues that are not more than \$3
    million for the preceding three years.[^265] The SBA has approved
    these small size standards.[^266] An auction of 740 licenses (one
    license in each of the 734 MSAs/RSAs and one license in each of the
    six Economic Area Groupings (EAGs)) commenced on August 27, 2002,
    and closed on September 18, 2002. Of the 740 licenses available for
    auction, 484 licenses were sold to 102 winning bidders. Seventy-two
    of the winning bidders claimed small business, very small business
    or entrepreneur status and won a total of 329 licenses.[^267] A
    second auction commenced on May 28, 2003, and closed on June 13,
    2003, and included 256 licenses: 5 EAG licenses and 476 CMA
    licenses.[^268] Seventeen winning bidders claimed small or very
    small business status and won sixty licenses, and nine winning
    bidders claimed entrepreneur status and won 154 licenses.[^269]

15. **Government Transfer Bands.** The Commission adopted small business
    size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, and
    the paired 1392-1395 MHz and 1432-1435 MHz bands.[^270]
    Specifically, with respect to these bands, the Commission defined an
    entity with average annual gross revenues for the three preceding
    years not exceeding \$40 million as a "small business," and an
    entity with average annual gross revenues for the three preceding
    years not exceeding \$15 million as a "very small business."[^271]
    Correspondingly, the Commission adopted a bidding credit of 15
    percent for "small businesses" and a bidding credit of 25 percent
    for "very small businesses."[^272] This bidding credit structure was
    found to have been consistent with the Commission's schedule of
    bidding credits, which may be found at Section 1.2110(f)(2) of the
    Commission's rules.[^273] The Commission found that these two
    definitions will provide a variety of businesses seeking to provide
    a variety of services with opportunities to participate in the
    auction of licenses for this spectrum and will afford such
    licensees, who may have varying capital costs, substantial
    flexibility for the provision of services.[^274] The Commission
    noted that it had long recognized that bidding preferences for
    qualifying bidders provides such bidders with an opportunity to
    compete successfully against large, well-financed entities.[^275]
    The Commission also noted that it had found that the use of tiered
    or graduated small business definitions is useful in furthering its
    mandate under Section 309(j) to promote opportunities for and
    disseminate licenses to a wide variety of applicants.[^276] An
    auction for one license in the 1670-1674 MHz band commenced on April
    30, 2003 and closed the same day. One license was awarded. The
    winning bidder was not a small entity.

16. **Advanced Wireless Services.** In the *AWS-1 Report and Order*, the
    Commission adopted rules that affect applicants who wish to provide
    service in the 1710-1755 MHz and 2110-2155 MHz bands.[^277] The
    Commission did not know precisely the type of service that a
    licensee in these bands might seek to provide. Nonetheless, the
    Commission anticipated that the services that will be deployed in
    these bands may have capital requirements comparable to those in the
    broadband Personal Communications Service (PCS), and that the
    licensees in these bands will be presented with issues and costs
    similar to those presented to broadband PCS licensees. Further, at
    the time the broadband PCS service was established, it was similarly
    anticipated that it would facilitate the introduction of a new
    generation of service. Therefore, the *AWS-1 Report and Order*
    adopts the same small business size standards that the Commission
    adopted for the broadband PCS service. In particular, the *AWS-1
    Report and Order* defines a "small business" as an entity with
    average annual gross revenues for the preceding three years not
    exceeding \$40 million, and a "very small business" as an entity
    with average annual gross revenues for the preceding three years not
    exceeding \$15 million. The *AWS-1 Report and Order* also provides
    small businesses with a bidding credit of 15 percent and very small
    businesses with a bidding credit of 25 percent.

17. **Broadband Radio Service (formerly Multipoint Distribution Service)
    and Educational Broadband Service (formerly Instructional Television
    Fixed Service).** Multichannel Multipoint Distribution Service
    (MMDS) systems, often referred to as "wireless cable," transmit
    video programming to subscribers using the microwave frequencies of
    the Multipoint Distribution Service (MDS) and Instructional
    Television Fixed Service (ITFS).[^278] In its recently issued
    *BRS/EBS Report and Order* in WT Docket No. 03-66, the Commission
    comprehensively reviewed its policies and rules relating to the ITFS
    and MDS services, and replaced the MDS with the Broadband Radio
    Service and ITFS with the Educational Broadband Service in a new
    band plan at 2495-2690 MHz.[^279] In connection with the 1996 MDS
    auction, the Commission defined "small business" 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.[^280] The SBA has approved of this standard.[^281] The MDS
    auction resulted in 67 successful bidders obtaining licensing
    opportunities for 493 Basic Trading Areas (BTAs).[^282] Of the 67
    auction winners, 61 claimed status as a small business. At this
    time, the Commission estimates that of the 61 small business MDS
    auction winners, 48 remain small business licensees. In addition to
    the 48 small businesses that hold BTA authorizations, there are
    approximately 392 incumbent MDS licensees that have gross revenues
    that are not more than \$40 million and are thus considered small
    entities.[^283]

18. In addition, the SBA has developed a small business size standard
    for Cable and Other Program Distribution, which is: all such firms
    having \$13.5 million or less in annual receipts.[^284] According to
    Census Bureau data for 2002, there were a total of 1,191 firms in
    this category that operated for the entire year.[^285] Of this
    total, 1,087 firms had annual receipts of under \$10 million, and 43
    firms had receipts of \$10 million or more but less than \$25
    million.[^286] Thus, under this size standard, the majority of firms
    can be considered small.

***Additional Wireless Radio Services (WRS)***

19. **Cellular Licensees.** The SBA has developed a small business size
    standard for small businesses in the category "Cellular and Other
    Wireless Telecommunications."[^287] Under that SBA category, a
    business is small if it has 1,500 or fewer employees.[^288] 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.[^289] Of this total,
    1,378 firms had employment of 999 or fewer employees, and 19 firms
    had employment of 1,000 employees or more.[^290] Thus, under this
    category and size standard, the majority of firms can be considered
    small.

20. **220 MHz Radio Service -- Phase I Licensees.** The 220 MHz service
    has both Phase I and Phase II licenses. Phase I licensing was
    conducted by lotteries in 1992 and 1993. 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, the
    Commission applies the small business size standard under the SBA
    rules applicable to "Cellular and Other Wireless Telecommunications"
    companies. This category provides that a small business is a
    wireless company employing no more than 1,500 persons.[^291] 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.[^292] Of this total,
    1,378 firms had employment of 999 or fewer employees, and 19 firms
    had employment of 1,000 employees or more.[^293] Thus, under this
    category and size standard, the majority of firms can be considered
    small.

21. **220 MHz Radio Service -- Phase II Licensees.** The 220 MHz service
    has both Phase I and Phase II licenses. The Phase II 220 MHz service
    is subject to spectrum auctions. In the *220 MHz Third Report and
    Order*, the Commission adopted a small business size standard for
    defining "small" and "very small" businesses for purposes of
    determining their eligibility for special provisions such as bidding
    credits and installment payments.[^294] This small business standard
    indicates that a "small business" is an entity that, together with
    its affiliates and controlling principals, has average gross
    revenues not exceeding \$15 million for the preceding three
    years.[^295] A "very small business" is defined as an entity that,
    together with its affiliates and controlling principals, has average
    gross revenues that do not exceed \$3 million for the preceding
    three years.[^296] The SBA has approved these small size
    standards.[^297] Auctions of Phase II licenses commenced on
    September 15, 1998, and closed on October 22, 1998.[^298] In the
    first auction, 908 licenses were auctioned in three different‑sized
    geographic areas: three nationwide licenses, 30 Regional Economic
    Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of
    the 908 licenses auctioned, 693 were sold.[^299] Thirty-nine small
    businesses won 373 licenses in the first 220 MHz auction. A second
    auction included 225 licenses: 216 EA licenses and 9 EAG licenses.
    Fourteen companies claiming small business status won 158
    licenses.[^300] A third auction included four licenses: 2 BEA
    licenses and 2 EAG licenses in the 220 MHz Service. No small or very
    small business won any of these licenses.[^301]

22. **Paging.** In the *Paging* *Second* Report *and Order*, the
    Commission adopted a size standard for "small businesses" for
    purposes of determining their eligibility for special provisions
    such as bidding credits and installment payments.[^302] A small
    business is an entity that, together with its affiliates and
    controlling principals, has average gross revenues not exceeding
    \$15 million for the preceding three years.[^303] The SBA has
    approved this definition.[^304] An auction of Metropolitan Economic
    Area (MEA) licenses commenced on February 24, 2000, and closed on
    March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold.[^305]
    Fifty-seven companies claiming small business status won 440
    licenses.[^306] An auction of MEA and Economic Area (EA) licenses
    commenced on October 30, 2001, and closed on December 5, 2001. Of
    the 15,514 licenses auctioned, 5,323 were sold.[^307] 132 companies
    claiming small business status purchased 3,724 licenses. A third
    auction, consisting of 8,874 licenses in each of 175 EAs and 1,328
    licenses in all but three of the 51 MEAs commenced on May 13, 2003,
    and closed on May 28, 2003. Seventy-seven bidders claiming small or
    very small business status won 2,093 licenses.[^308] Currently,
    there are approximately 24,000 Private Paging site-specific licenses
    and 74,000 Common Carrier Paging licenses. According to the
    Commission's *Trends in Telephone Service,* 375 such carriers
    reported that they were engaged in the provision of either paging or
    "messaging service."[^309] Of these, the Commission estimates that
    370 are small, under the SBA-approved small business size
    standard.[^310] The Commission estimates that the majority of
    private and common carrier paging providers would qualify as small
    entities under the SBA definition.

23. **Broadband Personal Communications Service.** The broadband
    Personal Communications Service (PCS) spectrum is divided into six
    frequency blocks designated A through F, and the Commission has held
    auctions for each block. The Commission has created a small business
    size standard for Blocks C and F as an entity that has average gross
    revenues of less than \$40 million in the three previous calendar
    years.[^311] For Block F, an additional small business size standard
    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.[^312] These small business size standards, in the context of
    broadband PCS auctions, have been approved by the SBA.[^313] No
    small businesses within the SBA-approved small business size
    standards 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 percent of the 1,479 licenses for
    Blocks D, E, and F.[^314] On March 23, 1999, the Commission
    reauctioned 155 C, D, E, and F Block licenses; there were 113 small
    business winning bidders.[^315] On January 26, 2001, the Commission
    completed the auction of 422 C and F PCS licenses in Auction
    35.[^316] Of the 35 winning bidders in this auction, 29 qualified as
    "small" or "very small" businesses. Subsequent events concerning
    Auction 35, including judicial and agency determinations, resulted
    in a total of 163 C and F Block licenses being available for grant.

24. **Narrowband Personal Communications Service.** The Commission held
    an auction for Narrowband Personal Communications Service (PCS)
    licenses that commenced on July 25, 1994, and closed on July
    29, 1994. A second commenced on October 26, 1994 and closed on
    November 8, 1994. For purposes of the first two Narrowband PCS
    auctions, "small businesses" were entities with average gross
    revenues for the prior three calendar years of \$40 million or
    less.[^317] Through these auctions, the Commission awarded a total
    of forty-one licenses, 11 of which were obtained by four small
    businesses.[^318] To ensure meaningful participation by small
    business entities in future auctions, the Commission adopted a
    two-tiered small business size standard in the *Narrowband PCS
    Second Report and Order*.[^319] A "small business" is an entity
    that, together with affiliates and controlling interests, has
    average gross revenues for the three preceding years of not more
    than \$40 million.[^320] A "very small business" is an entity that,
    together with affiliates and controlling interests, has average
    gross revenues for the three preceding years of not more than \$15
    million.[^321] The SBA has approved these small business size
    standards.[^322] A third auction commenced on October 3, 2001 and
    closed on October 16, 2001. Here, five bidders won 317 (MTA and
    nationwide) licenses.[^323] Three of these claimed status as a small
    or very small entity and won 311 licenses.

25. **Specialized Mobile Radio.** The Commission awards "small entity"
    bidding credits in auctions for Specialized Mobile Radio (SMR)
    geographic area licenses in the 800 MHz and 900 MHz bands to firms
    that had revenues of no more than \$15 million in each of the three
    previous calendar years.[^324] The Commission awards "very small
    entity" bidding credits to firms that had revenues of no more than
    \$3 million in each of the three previous calendar years.[^325] The
    SBA has approved these small business size standards for the 900 MHz
    Service.[^326] The Commission has held auctions for geographic area
    licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction
    began on December 5, 1995, and closed on April 15, 1996. Sixty
    bidders claiming that they qualified as small businesses under the
    \$15 million size standard won 263 geographic area licenses in the
    900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels
    began on October 28, 1997, and was completed on December 8, 1997.
    Ten bidders claiming that they qualified as small businesses under
    the \$15 million size standard won 38 geographic area licenses for
    the upper 200 channels in the 800 MHz SMR band.[^327] A second
    auction for the 800 MHz band was held on January 10, 2002 and closed
    on January 17, 2002 and included 23 BEA licenses. One bidder
    claiming small business status won five licenses.[^328]

26. The auction of the 1,050 800 MHz SMR geographic area licenses for
    the General Category channels began on August 16, 2000, and was
    completed on September 1, 2000. Eleven bidders won 108 geographic
    area licenses for the General Category channels in the 800 MHz SMR
    band qualified as small businesses under the \$15 million size
    standard. In an auction completed on December 5, 2000, a total of
    2,800 Economic Area licenses in the lower 80 channels of the 800 MHz
    SMR service were sold. Of the 22 winning bidders, 19 claimed "small
    business" status and won 129 licenses. Thus, combining all three
    auctions, 40 winning bidders for geographic licenses in the 800 MHz
    SMR band claimed status as small business.

27. In addition, there are numerous incumbent site-by-site SMR licensees
    and licensees with extended implementation authorizations in the 800
    and 900 MHz bands. The Commission does not know how many firms
    provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
    implementation authorizations, nor how many of these providers have
    annual revenues of no more than \$15 million. One firm has over \$15
    million in revenues. The Commission assumes, for purposes of this
    analysis, that all of the remaining existing extended implementation
    authorizations are held by small entities, as that small business
    size standard is established by the SBA.

28. **Private Land Mobile Radio.** Private Land Mobile Radio (PLMR)
    systems serve an essential role in a 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, and are often used in support of the licensee's primary
    (non-telecommunications) business operations. For the purpose of
    determining whether a licensee of a PLMR system is a small business
    as defined by the SBA, the Commission could use the definition for
    "Cellular and Other Wireless Telecommunications." This definition
    provides that a small entity is any such entity employing no more
    than 1,500 persons.[^329] The Commission does not require PLMR
    licensees to disclose information about number of employees, so the
    Commission does not have information that could be used to determine
    how many PLMR licensees constitute small entities under this
    definition. Moreover, because PMLR licensees generally are not in
    the business of providing cellular services but instead use the
    licensed facilities in support of other business activities, the
    Commission notes that the current Census numbers are likely
    overbroad. We also note that, for some such licensees, it might be
    appropriate to assess PLMR licensees under the standards applied to
    the particular industry subsector to which the licensee
    belongs.[^330]

29. **Fixed Microwave Services.** Fixed microwave services include
    common carrier,[^331] private-operational fixed,[^332] and broadcast
    auxiliary radio services.[^333] Currently, there are approximately
    22,015 common carrier fixed licensees and 61,670 private
    operational-fixed licensees and broadcast auxiliary radio licensees
    in the microwave services. The Commission has not yet defined a
    small business with respect to microwave services. For purposes of
    this analysis, the Commission will use the SBA\'s definition
    applicable to "Cellular and Other Wireless Telecommunications"
    companies---that is, an entity with no more than 1,500
    persons.[^334] The Commission does not have data specifying the
    number of these licensees that have more than 1,500 employees, and
    thus is unable at this time to estimate with greater precision the
    number of fixed microwave service licensees that would qualify as
    small business concerns under the SBA's small business size
    standard. Consequently, the Commission estimates that there are
    22,015 or fewer small common carrier fixed licensees and 61,670 or
    fewer small private operational-fixed licensees and small broadcast
    auxiliary radio licensees in the microwave services that may be
    affected by the rules and policies adopted herein. The Commission
    notes, however, that the common carrier microwave fixed licensee
    category includes some large entities.

30. **39 GHz Service.** The Commission defines "small entity" for 39 GHz
    licenses as an entity that has average gross revenues of less than
    \$40 million in the three previous calendar years.[^335] "Very small
    business" 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.[^336] The SBA has approved
    these definitions.[^337] The auction of the 2,173 39 GHz licenses
    began on April 12, 2000, and closed on May 8, 2000. The 18 bidders
    who claimed small business status won 849 licenses.

31. **Local Multipoint Distribution Service.** An auction of the 986
    Local Multipoint Distribution Service (LMDS) licenses began on
    February 18, 1998, and closed on March 25, 1998. The Commission
    defined "small entity" for LMDS licenses as an entity that has
    average gross revenues of less than \$40 million in the three
    previous calendar years.[^338] 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.[^339]
    These regulations defining "small entity" in the context of LMDS
    auctions have been approved by the SBA.[^340] There were 93 winning
    bidders that qualified as small entities in the LMDS auctions. A
    total of 93 small and very small business bidders won approximately
    277 A Block licenses and 387 B Block licenses. On March 27, 1999,
    the Commission re-auctioned 161 licenses; there were 32 small and
    very small business winning bidders that won 119 licenses.

32. **218-219 MHz Service.** The first auction of 218-219 MHz
    (previously referred to as the Interactive and Video Data Service or
    IVDS) spectrum resulted in 178 entities winning licenses for 594
    Metropolitan Statistical Areas (MSAs).[^341] Of the 594 licenses,
    567 were won by 167 entities qualifying as a small business. For
    that auction, the Commission defined a small business as an entity
    that, together with its affiliates, has no more than a \$6 million
    net worth and, after federal income taxes (excluding any carry over
    losses), has no more than \$2 million in annual profits each year
    for the previous two years.[^342] In the *218-219 MHz Report and
    Order and Memorandum Opinion and Order*, the Commission defined a
    small business as an entity that, together with its affiliates and
    persons or entities that hold interests in such an entity and their
    affiliates, has average annual gross revenues not exceeding \$15
    million for the preceding three years.[^343] A very small business
    is defined as an entity that, together with its affiliates and
    persons or entities that hold interests in such an entity and its
    affiliates, has average annual gross revenues not exceeding \$3
    million for the preceding three years.[^344] The SBA has approved of
    these definitions.[^345] At this time, the Commission cannot
    estimate the number of licenses that will be won by entities
    qualifying as small or very small businesses under its rules in
    future auctions of 218-219 MHz spectrum. Given the success of small
    businesses in the previous auction, and the prevalence of small
    businesses in the subscription television services and message
    communications industries, the Commission assumes for purposes of
    this analysis that in future auctions, many, and perhaps all, of the
    licenses may be awarded to small businesses.

33. **Location and Monitoring Service.** Multilateration Location and
    Monitoring Service (LMS) systems use non-voice radio techniques to
    determine the location and status of mobile radio units. For
    purposes of auctioning LMS licenses, the Commission has defined
    "small business" as an entity that, together with controlling
    interests and affiliates, has average annual gross revenues for the
    preceding three years not exceeding \$15 million.[^346] A "very
    small business" is defined as an entity that, together with
    controlling interests and affiliates, has average annual gross
    revenues for the preceding three years not exceeding \$3
    million.[^347] These definitions have been approved by the
    SBA.[^348] An auction for multilateration LMS licenses commenced on
    February 23, 1999, and closed on March 5, 1999. Of the 528 licenses
    auctioned, 289 licenses were sold to four small businesses. The
    Commission cannot accurately predict the number of remaining
    licenses that could be awarded to small entities in future LMS
    auctions. In addition, there are numerous site-by-site
    non-multilateration licensees, and the Commission does not know how
    many of these providers have annual revenues of no more than \$15
    million. The Commission assumes, for purposes of this analysis, that
    all of these licenses are held by small entities, as that small
    business size standard is established by the SBA.

34. **Rural Radiotelephone Service.** The Commission uses the SBA
    definition applicable to cellular and other wireless
    telecommunication companies, *i.e.*, an entity employing no more
    than 1,500 persons.[^349] There are approximately 1,000 licensees in
    the Rural Radiotelephone Service, and the Commission estimates that
    there are 1,000 or fewer small entity licensees in the Rural
    Radiotelephone Service that may be affected by the rules and
    policies adopted herein.

35. **Air-Ground Radiotelephone Service.** The Commission uses the SBA
    definition applicable to cellular and other wireless
    telecommunication companies, *i.e.*, an entity employing no more
    than 1,500 persons.[^350] There are approximately 100 licensees in
    the Air-Ground Radiotelephone Service, and the Commission estimates
    that almost all of them qualify as small entities under the SBA
    definition.

36. **Offshore Radiotelephone Service.** This service operates on
    several ultra high frequency (UHF) TV broadcast channels that are
    not used for TV broadcasting in the coastal area of the states
    bordering the Gulf of Mexico. At present, there are approximately 55
    licensees in this service. The Commission uses the SBA definition
    applicable to cellular and other wireless telecommunication
    companies, *i.e.*, an entity employing no more than 1,500
    persons.[^351] The Commission is unable at this time to estimate the
    number of licensees that would qualify as small entities under the
    SBA definition. The Commission assumes, for purposes of this
    analysis, that all of the 55 licensees are small entities, as that
    term is defined by the SBA.

37. **Multiple Address Systems.** Entities using Multiple Address
    Systems (MAS) spectrum, in general, fall into two categories: (1)
    those using the spectrum for profit-based uses, and (2) those using
    the spectrum for private internal uses. With respect to the first
    category, the Commission defines "small entity" for MAS licenses as
    an entity that has average gross revenues of less than \$15 million
    in the three previous calendar years.[^352] "Very small business" is
    defined as an entity that, together with its affiliates, has average
    gross revenues of not more than \$3 million for the preceding three
    calendar years.[^353] The SBA has approved of these
    definitions.[^354] The majority of these entities will most likely
    be licensed in bands where the Commission has implemented a
    geographic area licensing approach that would require the use of
    competitive bidding procedures to resolve mutually exclusive
    applications. The Commission's licensing database indicates that, as
    of January 20, 1999, there were a total of 8,670 MAS station
    authorizations. Of these, 260 authorizations were associated with
    common carrier service. In addition, an auction for 5,104 MAS
    licenses in 176 EAs began November 14, 2001, and closed on November
    27, 2001.[^355] Seven winning bidders claimed status as small or
    very small businesses and won 611 licenses.

38. With respect to the second category, which consists of entities that
    use, or seek to use, MAS spectrum to accommodate their own internal
    communications needs, MAS serves an essential role in a range of
    industrial, safety, business, and land transportation activities.
    MAS radios are used by companies of all sizes, operating in
    virtually all U.S. business categories, and by all types of public
    safety entities. For the majority of private internal users, the
    definitions developed by the SBA would be more appropriate. The
    applicable definition of small entity in this instance appears to be
    the "Cellular and Other Wireless Telecommunications" definition
    under the SBA rules. This definition provides that a small entity is
    any entity employing no more than 1,500 persons.[^356] The
    Commission's licensing database indicates that, as of January 20,
    1999, of the 8,670 total MAS station authorizations, 8,410
    authorizations were for private radio service, and of these, 1,433
    were for private land mobile radio service.

39. **Incumbent 24 GHz Licensees.** The rules at issue could affect
    incumbent licensees who were relocated to the 24 GHz band from the
    18 GHz band, and applicants who wish to provide services in the
    24 GHz band. The Commission did not develop a definition of small
    entities applicable to existing licensees in the 24 GHz band.
    Therefore, the applicable definition of small entity is the
    definition under the SBA rules for "Cellular and Other Wireless
    Telecommunications." This definition provides that a small entity is
    any entity employing no more than 1,500 persons.[^357] The
    Commission believes that there are only two licensees in the 24 GHz
    band that were relocated from the 18 GHz band, Teligent[^358] and
    TRW, Inc. The Commission understands that Teligent and its related
    companies have less than 1,500 employees, though this may change in
    the future. TRW is not a small entity. Thus, only one incumbent
    licensee in the 24 GHz band is a small business entity.

40. **Future 24 GHz Licensees.** With respect to new applicants in the
    24 GHz band, the Commission has defined "small business" as an
    entity that, together with controlling interests and affiliates, has
    average annual gross revenues for the three preceding years not
    exceeding \$15 million.[^359] "Very small business" in the 24 GHz
    band is defined as an entity that, together with controlling
    interests and affiliates, has average gross revenues not exceeding
    \$3 million for the preceding three years.[^360] The SBA has
    approved these definitions.[^361] The Commission will not know how
    many licensees will be small or very small businesses until the
    auction, if required, is held.

41. **Cable Television Relay Service.** This service includes
    transmitters generally used to relay cable programming within cable
    television system distribution systems. The Census Bureau has
    defined a category of Cable and Other Program Distribution as
    follows: "This industry comprises establishments primarily engaged
    as third-party distribution systems for broadcast programming. The
    establishments of this industry deliver visual, aural, or textual
    programming received from cable networks, local television stations,
    or radio networks to consumers via cable or direct-to-home satellite
    systems on a subscription or fee basis. These establishments do not
    generally originate programming material."[^362] The SBA has
    developed a small business size standard for Cable and Other Program
    Distribution, which is: all such firms having \$13.5 million or less
    in annual receipts.[^363] According to Census Bureau data for 2002,
    there were a total of 1,191 firms in this category that operated for
    the entire year.[^364] Of this total, 1,087 firms had annual
    receipts of under \$10 million, and 43 firms had receipts of \$10
    million or more but less than \$25 million.[^365] Thus, under this
    size standard, the majority of firms can be considered small.

42. **Cable Companies and Systems.** The Commission has also developed
    its own small business size standards, for the purpose of cable rate
    regulation. Under the Commission's rules, a "small cable company" is
    one serving 400,000 or fewer subscribers, nationwide.[^366] Industry
    data indicate that, of 1,076 cable operators nationwide, all but
    eleven are small under this size standard.[^367] In addition, under
    the Commission's rules, a "small system" is a cable system serving
    15,000 or fewer subscribers.[^368] Industry data indicate that, of
    7,208 systems nationwide, 6,139 systems have under 10,000
    subscribers, and an additional 379 systems have 10,000-19,999
    subscribers.[^369] Thus, under this second size standard, most cable
    systems are small.

43. **Cable System Operators.** The Communications Act of 1934, as
    amended, also contains a size standard for small cable system
    operators, which is "a cable operator that, directly or through an
    affiliate, serves in the aggregate fewer than 1 percent of all
    subscribers in the United States and is not affiliated with any
    entity or entities whose gross annual revenues in the aggregate
    exceed \$250,000,000."[^370] The Commission has determined that an
    operator serving fewer than 677,000 subscribers shall be deemed a
    small operator, if its annual revenues, when combined with the total
    annual revenues of all its affiliates, do not exceed \$250 million
    in the aggregate.[^371] Industry data indicate that, of 1,076 cable
    operators nationwide, all but ten are small under this size
    standard.[^372] The Commission neither requests nor collects
    information on whether cable system operators are affiliated with
    entities whose gross annual revenues exceed \$250 million,[^373] and
    therefore it is unable to estimate more accurately the number of
    cable system operators that would qualify as small under this size
    standard.

44. **Multichannel Video Distribution and Data Service.** Multichannel
    Video Distribution and Data Service (MVDDS) is a terrestrial fixed
    microwave service operating in the 12.2-12.7 GHz band. Licenses in
    this service were auctioned in January 2004, with 10 winning bidders
    for 192 licenses. Eight of these 10 winning bidders claimed small
    businesses status for 144 of these licenses.[^374]

45. **Amateur Radio Service.** These licensees are believed to be
    individuals, and therefore are not small entities.

46. **Aviation and Marine Services.** Small businesses in the aviation
    and marine radio services use a very high frequency (VHF) marine or
    aircraft radio and, as appropriate, an emergency position-indicating
    radio beacon (and/or radar) or an emergency locator transmitter. The
    Commission has not developed a small business size standard
    specifically applicable to these small businesses. For purposes of
    this analysis, the Commission uses the SBA small business size
    standard for the category "Cellular and Other Telecommunications,"
    which is 1,500 or fewer employees.[^375] Most applicants for
    recreational licenses are individuals. Approximately 581,000 ship
    station licensees and 131,000 aircraft station licensees operate
    domestically and are not subject to the radio carriage requirements
    of any statute or treaty. For purposes of the Commission's
    evaluations in this analysis, the Commission estimates that there
    are up to approximately 712,000 licensees that are small businesses
    (or individuals) under the SBA standard. In addition, between
    December 3, 1998 and December 14, 1998, the Commission held an
    auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz
    (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For
    purposes of the auction, the Commission defined a "small" business
    as an entity that, together with controlling interests and
    affiliates, has average gross revenues for the preceding three years
    not to exceed \$15 million dollars. In addition, a "very small"
    business is one that, together with controlling interests and
    affiliates, has average gross revenues for the preceding three years
    not to exceed \$3 million dollars.[^376] There are approximately
    10,672 licensees in the Marine Coast Service, and the Commission
    estimates that almost all of them qualify as "small" businesses
    under the above special small business size standards.

47. **Personal Radio Services.** Personal radio services provide
    short-range, low power radio for personal communications, radio
    signaling, and business communications not provided for in other
    services. The Personal Radio Services include spectrum licensed
    under Part 95 of the rules.[^377] These services include Citizen
    Band Radio Service (CB), General Mobile Radio Service (GMRS), Radio
    Control Radio Service (R/C), Family Radio Service (FRS), Wireless
    Medical Telemetry Service (WMTS), Medical Implant Communications
    Service (MICS), Low Power Radio Service (LPRS), and Multi-Use Radio
    Service (MURS).[^378] There are a variety of methods used to license
    the spectrum in these rule parts, from licensing by rule, to
    conditioning operation on successful completion of a required test,
    to site-based licensing, to geographic area licensing. Under the
    RFA, the Commission is required to make a determination of which
    small entities are directly affected by the rules being adopted.
    Since all such entities are wireless, the Commission applies the
    definition of cellular and other wireless telecommunications,
    pursuant to which a small entity is defined as employing 1,500 or
    fewer persons.[^379] Many of the licensees in these services are
    individuals, and thus are not small entities. In addition, due to
    the mostly unlicensed and shared nature of the spectrum utilized in
    many of these services, the Commission lacks direct information upon
    which to base an estimation of the number of small entities under an
    SBA definition that might be directly affected by the proposed
    rules.

48. Despite the paucity, or in some instances, total absence, of
    information about their status as licensees or regulatees or the
    number of operators in each such service, users of spectrum in these
    services are listed here as a matter of Commission discretion in
    order to fulfill the mandate imposed on the Commission by the RFA to
    regulate small business entities with an understanding towards
    preventing the possible differential and adverse impact of the
    Commission's rules on smaller entities. Further, the listing of such
    entities, despite their indeterminate status, should provide them
    with fair and adequate notice of the possible impact of the instant
    proposals.

49. **Public Safety Radio Services.** Public Safety radio services
    include police, fire, local government, forestry conservation,
    highway maintenance, and emergency medical services.[^380] There are
    a total of approximately 127,540 licensees in these services.
    Governmental entities[^381] as well as private businesses comprise
    the licensees for these services. All governmental entities with
    populations of less than 50,000 fall within the definition of a
    small entity.[^382]

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D.  **Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements for Small Entities**

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50. The *Notice* seeks to evaluate whether changes to the existing
    service rules pertaining to 700 MHz Band licenses may ultimately
    permit more effective use of this spectrum to better meet the needs
    of today's consumers. To the extent the Commission's past decisions
    no longer reflect the best approach with regard to the license area
    sizes, band plan, performance requirements, renewal criteria, length
    of license terms, power limits, and 911/E911 & hearing
    aid-compatibility requirements, the *Notice* seeks comment on the
    possibility of making appropriate adjustments to various
    requirements that will serve the public interest.

51. Although the *Notice* does not propose any specific rules with new
    reporting, recordkeeping or other compliance requirements for small
    entities on the aforementioned issues, the Commission is open to
    comment on what, if any, requirements it should, or should not,
    impose for small entities if it adopts new rules based on the
    proposals in the *Notice*. For example, there is the possibility
    that modifying performance requirements and secondary market
    provisions for certain 700 MHz Band licenses could require new
    reporting and recordkeeping practices for small entities regarding
    where and how spectrum is used. In addition, new renewal criteria
    could possibly be established such that the Commission would codify
    new requirements for renewal or, in the alternative, list factors
    that are relevant to licensees' (including small entities')
    informational showings that renewal is in the public interest. Under
    such a proposal, the *Notice* states that such licensees may have to
    report on factors such as the level of service and whether it was
    "substantial"; whether service was ever interrupted and
    discontinued; whether service has been provided to any rural or
    tribal areas; whether a licensee has received any requests from
    others seeking to enter into spectrum leasing arrangements, and
    whether it has entered into any such arrangements; and any other
    factors typically associated with assessments of a licensee's level
    of service to the public. The *Notice* also seeks comment on whether
    any additional modifications to 700 MHz Band power limit rules would
    be appropriate; in this regard, it states that such action could
    result in, *e.g.*, the use of the notification procedures for
    high-powered Upper 700 MHz Band operations that are currently
    applied to high-powered Lower 700 MHz Band operations. A tentative
    conclusion to require certain 700 MHz Band, and Part 27, licensees
    to comply with the 911/E911 and hearing aid-compatibility
    requirements (as well as seeking comment on whether to apply these
    requirements to licensees in other WRS) is another example of a
    projected compliance requirement that could affect small entities.

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

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52. The RFA requires an agency to describe any significant, specifically
    small business alternatives that it has considered in reaching its
    proposed 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 or reporting
    requirements under the rule for small entities; (3) the use of
    performance, rather than design, standards; and (4) and exemption
    from coverage of the rule, or any part thereof, for small
    entities."[^383]

53. In the *Notice*, the Commission specifically considers small
    business alternatives in seeking comment on the existing size of
    geographic service areas for the 700 MHz Band. Specifically, the
    *Notice* seeks comment on whether there is a need for additional
    small geographic service area licenses in the band, such as the 734
    CMAs. The Commission notes that the Rural Cellular Association
    claims that small entities are unable to compete effectively for
    licenses that combine rural and major metropolitan areas and the
    availability of RSAs (as opposed to other small units) is especially
    important to small and rural carriers given their potential greater
    interest in serving these high-cost areas than large regional and
    nationwide carriers.

54. On this question of the optimal size of the service areas for the
    700 MHz Band, the *Notice* seeks comment on whether firms, including
    small entities, need additional access to spectrum over small
    service areas. It considers in general the economic impact to small
    entities of the possible transaction costs associated with the
    assignment of additional spectrum over small and large service areas
    alike. For example, the *Notice* seeks comment on the factors that
    the Commission should use in balancing the needs of small and rural
    carriers as well as large and national carriers as they seek to
    provide service to their rural customers.

55. The *Notice* also seeks comment on the optimal service area size(s)
    for the remaining unauctioned licenses to the extent a demonstrated
    need exists for smaller or other sized areas. With respect to
    impacts to small entities, the *Notice* states that both large
    nationwide providers as well as small regional and rural providers
    may be able to make use of the 700 MHz Band, yet explains that the
    optimal size of geographic service area is different for these two
    types of providers, and licenses for areas that are larger or
    smaller than desired will impose transaction costs on those parties
    that wish to acquire them. The *Notice* seeks comment on the degree
    and likelihood of such economic costs as 700 MHz Band spectrum is
    licensed in the future, and the extent to which the transaction
    costs of aggregating, disaggregating, or partitioning spectrum are a
    significant concern for those parties that most highly value this
    spectrum, including small entities. The *Notice* also discusses how
    certain providers in the 700 MHz Band have focused on smaller sized
    service areas, and it notes that a number of small providers have
    acquired Lower 700 MHz Block C spectrum apparently to provide
    services specifically to rural areas over RSAs. Thus, the *Notice*
    seeks comment on what the optimal size for smaller areas would be,
    as well as how the size of licensed geographic service area impacts
    the services that are currently being developed, and which may be
    developed, for use of the 700 MHz Band.

56. The *Notice* then seeks comment on which spectrum blocks in the 700
    MHz Band would be suitable for licensing over small or other sized
    areas. Specifically, the Commission seeks comment on the impact of
    designating the unpaired 6 megahertz Block E in the Lower 700 MHz
    Band for small-area licensing. Regarding this significant
    alternative, the *Notice* inquires if 6 megahertz is sufficient to
    meet small and/or rural carriers' spectrum needs, and asks
    commenters to address whether there are broadband technologies that
    can operate on unpaired spectrum such that the 6 megahertz of
    spectrum in Block E would be suitable for potential reassignment.
    Taking into account the resources available to small entities, the
    *Notice* also addresses how any need for small and rural carriers to
    provide adjacent TV Channel 51 protection might affect their ability
    to provide service to those areas if Block A were designated for
    small area licensing.

57. In addition to seeking comment on the size of service areas, the
    Commission seeks comment on possibly changing the size of spectrum
    blocks in the 700 MHz Band plan. To the extent the Commission
    decides to auction and assign additional licenses over service area
    sizes other than the six EAGs, the *Notice* seeks comment on whether
    reconfiguring or sub-dividing existing spectrum blocks in the band
    plans in the 700 MHz Band could better accommodate such assignments
    and thereby facilitate access to spectrum by small entities. In
    particular, the *Notice* seeks comment on dividing the 20-megahertz
    Block D license in the Upper 700 MHz Band into two or more license
    blocks to create additional opportunities for firms to acquire
    spectrum, including small business and rural providers.

58. In the next section of the *Notice*, the Commission seeks comment on
    whether it should take additional action with regard to the spectrum
    in the 700 MHz Band so as to help facilitate access to that spectrum
    and the provision of service to all consumers, including those in
    rural areas. In contrast to the significant alternatives above on
    the size of geographic service areas and/or spectrum blocks that may
    help increase access to spectrum at auction for a wide variety of
    entities, this section seeks comment on whether the Commission's
    existing "substantial service" performance requirements and related
    policies pertaining to 700 MHz Band licenses serve to facilitate
    deployment of wireless services in the 700 MHz Band. For example,
    the *Notice* seeks comment on significant alternatives that impact
    small entities, such as the possibility of adopting "keep what you
    use" re-licensing mechanisms. It also seeks comment on options that
    may facilitate access to spectrum in the secondary market for all
    potential service providers, including small entities and those
    specifically seeking to deliver service to rural areas and tribal
    lands.

59. The next portions of the *Notice* seek comment on potential changes
    to several of the Commission's initial determinations applicable to
    700 MHz Band licenses, changes which could affect small entities.
    First, the *Notice* requests comment on whether to amend Commission
    rules to clarify the requirements and procedures of the renewal
    process for 700 MHz Band licenses, particularly as they relate to
    existing rules requiring demonstrations of "substantial service" for
    renewal applicants involved in comparative proceedings. Second, the
    *Notice* invites comment on extending the license terms of 700 MHz
    Band licenses to an expiration date beyond 2015 in order to afford
    licensees a sufficient period of time for deployment of new 700 MHz
    Band services once the DTV transition is complete. Third, the
    *Notice* seeks comment on whether the power limits in the existing
    rules for the 700 MHz Band spectrum should be revised. In addition
    to the discussion above regarding possible new reporting,
    recordkeeping or other compliance requirements that could impact
    small entities,[^384] it is not anticipated that any rules adopted
    in this area would adversely impact small entities. Both small and
    large entities may benefit from changes to these rules.

60. Finally, because Commission rules have not been expanded to include
    licensees (including small entities) providing service in later
    authorized, additional WRS such as the 700 MHz Band, the *Notice*
    seeks comment on the tentative conclusion that services provided by
    licensees in the 700 MHz Band, and in other bands subject to Part 27
    of the rules such as AWS-1, should be subject to E911 and hearing
    aid-compatibility requirements to the same extent that such services
    would be covered if provided in other bands. It then seeks comment
    on how to modify Commission rules to ensure that they include all
    similar WRS. Because many of the services permitted across the WRS
    can be expected to be similar to services presently subject to the
    911/E911 and hearing aid-compatibility requirements, the *Notice*
    seeks comment on whether to amend the rules to ensure that all
    similar wireless services that meet certain criteria discussed in
    the *Notice* will be subject to the 911/E911 and hearing
    aid-compatibility requirements. To minimize significant economic
    impact to the many firms, including small entities, that are or will
    become licensees in the various WRS, the *Notice* seeks comment on
    impacts including, *e.g.*, the time necessary to complete such
    changes to the standards.

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

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61. None.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands;
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones (WT Docket Nos. 06-150,
01-309, and CC Docket No. 94-102).

With today's action, the Commission continues its efforts to provide
consumers with new and advanced wireless services by making spectrum
available for wireless broadband.

The Commission will soon auction 90 MHz of spectrum in the Advanced
Wireless Services band. In this item, we seek comment on our service
rules for the 700 MHz band, which is similarly well-suited for the
provision of wireless broadband services and must be auctioned for
commercial use by January 28, 2008. We are reevaluating our service
rules for this band to account for Congress' recent adoption of digital
television legislation and the needs of both small and large service
providers. We also intend to ensure that service providers in this band
and other broadband bands comply with our E911 and hearing
aid-compatibility rules.

I expect that wireless services will continue to be an increasing part
of broadband service deployment. Consumers are increasingly demanding
access to broadband services any time they want it, wherever they want
it. This spectrum will help bring consumers everywhere more
opportunities to use these services both at home and on the go.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re:* Service Rules for the 698-746, 747-762 and 777-792 MHz Bands;
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones (WT Docket Nos. 06-150,
01-309, and CC Docket No. 94-102).

With the grand-daddy of all auctions coming at us in 700 MHz in less
than two years, I am encouraged that we begin today the process of
developing service rules for it. Getting this one absolutely right is
absolutely necessary if we are going to reap the full measure of benefit
from this beach-front property spectrum. We're on the right road here,
we're asking the right questions, and I want to thank the Bureau for
bringing this especially thoughtful and well-crafted item to us.

As I stated earlier today in our discussion of BPL technology, we have a
broadband crisis in this country that stems from a lack of competition.
Wireless technologies can play, I believe, a critical role in remedying
the egregious gaps in our national communications system. The 700MHz
spectrum that we will auction in 2008 is key to spreading the benefits
of broadband across our country. In order to make sure that our nation's
consumers get the most out of this great national resource, we need to
begin by answering some difficult questions about the service rules for
this band.

One critical issue is the size of the geographic service areas. I am
pleased that we have heeded the Rural Cellular Association's call to
consider assigning a significant number of these licenses over smaller
geographic areas. Smaller providers need a fighting chance to bid
against the large national carriers for spectrum that is ideally suited
for rural broadband applications. I look forward to a record that will
inform us how to best achieve this goal.

Another critical issue involves the build-out and renewal standards to
be applied in this valuable spectrum. We need, of course, to give
companies breathing room and regulatory certainty so they can raise
capital and build networks. At the same time, we must not countenance
spectrum warehousing or any other unreasonable delay in putting our
nation's spectrum to work. The demand for wireless broadband is just too
pressing to allow companies to sit on spectrum, and I look forward to
developing rules that will put licenses in the hands of those most
capable of bringing new services to market.

I am also pleased with our tentative conclusion that the full range of
E911 and hearing aid compatibility rules will apply to services in this
band and, I might add, in the Advanced Wireless Services band whose
auction is more imminent. This is an area wherein any lingering legal
uncertainty must be promptly dispelled. These broadband wireless bands
must be available to and safe for all Americans.

Additionally, I want to commend and thank Commissioner Adelstein for
drawing attention to the challenge of promoting the deployment of
wireless networks on tribal lands. This Commission's job is to make
communications by wire and radio available to ***all*** our people, and
this auction can be tremendously important for bringing advanced
telecommunications to Indian Country.

I recognize that this is the first in several steps that the Commission
must take in order to conduct a successful 700MHz auction and to deliver
proceeds -- hopefully copious proceeds -- to the U.S. Treasury. We also
face important questions about how to organize public safety spectrum in
this band and we still need to consider interesting proposals about how
best to make use of our 700 MHz guardbands. I look forward in the coming
months to working with the Chairman and my fellow Commissioners so that
this auction goes off smoothly and that this spectrum can begin
delivering wireless broadband services as quickly as possible.

Finally, even as we lay groundwork for our auction of the 700 MHz
spectrum, I want to reiterate my belief that the Commission must
continue to expand the amount of unlicensed spectrum available for
promising new technologies. I look forward to resolving the "TV white
spaces" and "spectrum test bed" dockets, as well as other matters that
will come before us, so as to continue to provide our nation's engineers
and entrepreneurs with the resources they need to continue astounding us
with their creativity and innovation.

Thanks again to the Bureau for an excellent item.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re:* Service Rules for the 698-746, 747-762 and 777-792 MHz Bands;
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones (WT Docket Nos. 06-150,
01-309, and CC Docket No. 94-102).

With this Notice, the Commission rightly seeks comment on possible
changes to the service rules governing licenses in the 700 MHz band.
Over four years have passed since the service rules and band plans were
first adopted for this spectrum. Since then, the rapidly evolving mobile
wireless industry has experienced tremendous subscriber growth, the
emergence of new and exciting product offerings, and increased
consolidation. In addition to these dynamic changes, the enactment of
the Digital Television and Public Safety Act of 2005, with its specific
benchmarks, is a significant milestone that further prompts the
opportunity for the Commission to consider whether or how to revise our
regulatory approach to both the Upper and Lower 700 MHz Bands. I fully
support the timing of this Notice, as I have regularly commented how
exceedingly important it is that we do what we can to keep the
Commission on the leading edge of spectrum-based technology and policy.

The Notice we adopt today sets up an important discussion to ensure that
the 700 MHz band is quickly and efficiently put to use and that parts of
the spectrum do not remain an untapped well for the thirsty. I have long
had a strong interest in promoting active spectrum use, and am very
pleased that our item seeks comment on whether we should revise
performance requirements for licensees in the 700 MHz Band. We ask
important questions on whether the country would be better served by
alternate performance requirements such as more specific construction
benchmarks or a "keep what you use" re-licensing mechanism.

I am particularly interested in reactions to the suggestion of a
"triggered keep what you use" rule, in which the Commission, rather than
reclaiming unused spectrum after a period of time, would reclaim
spectrum only in the event a party other than the licensee is interested
in securing access to the spectrum in an unserved portion of the license
area. My hope is that this discussion will lead to the Commission moving
to more of a "carrot and stick" approach to performance requirements --
an approach that I have long advocated -- in the future by which the
Commission promotes flexibility and innovation, yet expects more
specific results as well.

The dialogue generated by this Notice should enable the Commission to
better serve communities, particularly those in rural and other unserved
areas, where licensees do not plan to use or lease the spectrum they
acquired. For example, I just returned from our Indian
Telecommunications Initiative workshop and roundtable in San Diego and
access to spectrum was one of the big issues I heard from Tribal leaders
attending the conference. I want to thank my colleagues for agreeing to
add questions to this item addressing the unique challenges of wireless
service on Tribal lands. The economic and social prosperity of Native
American communities depends on access to state-of the-art
communications technologies, so it is important that we seek comment on
flexible licensing approaches that may make it easier for
community-based providers, like Tribes, to get access to wireless
broadband opportunities on a more localized basis.

I also am particularly pleased that the Notice asks whether the
Commission should take another look at the "substantial service"
standard in the renewal of licenses in the event we continue with that
approach. In our recently completed BRS/EBS reconsideration item, I
emphasized the importance of adopting "safe harbors" that are
meaningful. By meeting safe harbors, operators are provided with the
security that they absolutely have complied with the Commission's
substantial service requirements. It is my belief that if we are to
provide such a security option and allow the flexibility of a
substantial service construction standard, we should make safe harbors
that are meaningful and worthwhile -- so I am pleased that we continue
that discussion here.

In addition to seeking comment on how we can put the 700 MHz spectrum to
its most active use, the Notice seeks comment on the size of the current
service areas and the size of the current spectrum blocks. If we want to
see better and more advanced wireless service in the future, we need to
make spectrum more easily accessible. I fully support this discussion on
whether we should reconfigure or sub-divide the existing spectrum blocks
in the 700 MHz Band in order to fulfill this goal. As many of you know,
in the Advanced Wireless Services proceeding, I was very involved in our
bandplan decision, which ultimately was well received by small and large
entities alike, and I look forward to reviewing the record in this
proceeding as well since I was not at the Commission for our initial
bandplan determination.

I am very pleased that the item we adopt today builds on a number of the
questions raised in the Further Notice of Proposed Rule Making in our
rural wireless proceeding, an item that I strongly supported. With
recent consolidation in the communications industry, it becomes even
more critical that we make vibrant, spectrum-based communications
opportunities available to all consumers and companies. The 700 MHz band
should be a real opportunity for new and incumbent carriers to expand
existing networks and develop new and exciting wireless broadband
services for all communities. I am pleased that we are giving the 700
MHz band the attention it deserves by evaluating our policies to make
sure we provide what is best for American consumers and do not undercut
the ability of wireless innovators to get access to new or unused
spectrum.

I would like to commend the staff of the Wireless Telecommunications
Bureau for providing us with a very comprehensive and well drafted
Notice. With the digital transition on the horizon, this Notice comes at
a crucial time and asks critical questions regarding spectrum use that
will impact the 700 MHz band and wireless services to come. Initiating
dialogue on these matters can only serve American consumers well. I look
forward to working with my colleagues and the Bureau in tackling these
important issues in the upcoming months.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands;
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones (WT Docket Nos. 06-150,
01-309, and CC Docket No. 94-102).

This Notice of Proposed Rulemaking seeks comment on how the Commission
can encourage wireless carriers to offer new and better services.
Spectrum that is currently occupied by UHF television broadcasters will
soon be available, and I believe we need to create an environment that
encourages businesses to use this spectrum to provide innovative new
wireless services. The Commission seeks comment on possible changes to
service rules for wireless licenses in the 700 MHz Band that will help
create such an environment.

New technology creates new opportunities to bring wireless services to
all Americans. Recently, I met with a group of analysts, entrepreneurs,
and industry executives in Northern California and heard firsthand the
demands placed on carriers to offer more services to more consumers,
which in turn has created increased demand for valuable spectrum, such
as the 700 MHz Band.

The 700 MHz band is also ideal for getting a signal to customers in
rural areas and will bring high-speed applications like streaming video
to wireless customers. I particularly look forward to hearing ideas from
industry experts and consumer advocates on how the Commission can
facilitate deployment of wireless services to rural areas. I also would
like to applaud the tentative conclusion that services in the 700 MHz
Band that meet certain criteria should be subject to 911/E911 and
hearing aid-compatible handset requirements. All Americans, regardless
of geographic location or physical disability, should be able to access
reasonably equivalent wireless services.

I look forward to working with my colleagues to determine the most
effective use of this spectrum.

**STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

RE: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands;
Revision of the Commission's Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones (WT Docket Nos. 06-150,
01-309, and CC Docket No. 94-102).

The Digital Television Transition and Public Safety Act of 2005 (the DTV
Act) makes several fundamental changes in the statutory regime
applicable to the 700 MHz band spectrum. Perhaps most importantly, the
DTV Act establishes a hard deadline of February 17, 2009, for the
cessation of analog broadcasting in this spectrum. The DTV Act also
requires the Commission to begin the auction for the licenses associated
with the recovered analog spectrum no later than January 28, 2008, and
to deposit the auction proceeds no later than June 30, 2008.

Given these congressional mandates, we have our work cut out for us. In
this regard, I thank the Wireless Bureau for preparing this
well-written, comprehensive notice, which will bolster our ability to
complete our work expeditiously. And, I thank the Chairman for bringing
this item to us today. I am delighted that wireless licensees and
potential licensees -- whether public safety or commercial -- are now in
a position to finalize plans for deploying in this "prime real estate."
I look forward to actively engaging with my colleagues, and all
interested parties, in the important effort to reexamine and finalize
the service rules for the 700 MHz commercial band, including issues
relating to E911 deployment, hearing aid compatibility and service to
tribal areas.

[^1]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59), GN Docket No. 01-74, *Memorandum
    Opinion and Order*, 17 FCC Rcd 11613 (2002) (*Lower 700 MHz MO&O*).

[^2]: *See* Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4 (2006) ("DRA"). Title III of the DRA is the DTV Act.

[^3]: In the *Lower 700 MHz Notice*, the Commission stated that "\[t\]he
    DTV Table also, *inter alia*, facilitates the early recovery of
    Channels 60-69 by minimizing the use of these channels for DTV
    purposes." Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), GN Docket No. 01-74,
    *Notice of Proposed Rulemaking*, 16 FCC Rcd 7278, 7282-83 ¶ 6 (2001)
    (*Lower 700 MHz Notice*) (footnote omitted); *accord* Reallocation
    of Television Channels 60-69, the 746-806 MHz Band, ET Docket No.
    97-157, *Notice of Proposed Rulemaking*, 12 FCC Rcd 14141, 14142 ¶ 3
    (1997). Thus, the Commission's DTV channel allocation plan for the
    simultaneous transmission of digital and analog broadcast signals
    placed as few channels as possible in the Upper 700 MHz Band. *See
    Lower 700 MHz Notice*, 16 FCC Rcd at 7282-83 ¶ 6.

[^4]: For example, prior to enactment of the DTV Act, there was an
    expectation that the Lower 700 MHz Band would remain encumbered by
    analog broadcasters for much longer than the Upper 700 MHz Band.
    *See, e.g.*, Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), GN Docket No. 01-74,
    *Report and Order*, 17 FCC Rcd 1022, 1025 ¶ 4 (2002) (*Lower 700 MHz
    Report and Order*). In the *Lower 700 MHz Report and Order*, the
    Commission stated that "\[t\]he reclamation of television spectrum
    has been addressed in two parts, primarily as a result of different
    statutory requirements applicable to the two bands and differing
    degrees of incumbency in the two bands." *Id*. (footnote omitted).
    The Commission also acknowledged that "\[b\]oth Congress and the
    Commission initially expected to license the Lower 700 MHz Band
    after the auction of the Upper 700 MHz Band." *Id*. (footnote
    omitted). The expectation was that the Lower 700 MHz Band would
    remain a home for significant analog broadcasting for some period of
    time. *Cf. Lower 700 MHz Report and Order*, 17 FCC Rcd at 1025 ¶ 4
    (stating that "\[e\]arly recovery of additional spectrum beyond the
    Upper 700 MHz Band was not contemplated in the DTV transition plan")
    (footnote omitted).

[^5]: During the past four years, the number of U.S. subscribers to
    mobile telephone services has increased from approximately 141.8
    million to approximately 208 million. This has produced an increase
    in nationwide mobile penetration from 49 percent to 69 percent.

[^6]: This Notice addresses many of the rules applicable to certain
    spectrum in the "Upper 700 MHz Band" (Television Channels 60-69 in
    the 746-806 MHz band) and the "Lower 700 MHz Band" (TV Channels
    52-59 in the 698-746 MHz band), as specified herein. Rules
    applicable to spectrum currently occupied by television Channels
    63-64 (764-776 MHz band) and 68-69 (794-806 MHz band) are not
    considered in this Notice because that spectrum has been allocated
    to public safety (and thus is not included within the term of the
    "700 MHz Band" as defined in this Notice). Also, the rules
    applicable to the Guard Band spectrum at 746-747/776-777 MHz and
    762-764/792-794 MHz (which also are not included within the
    definition of the 700 MHz Band) are not considered in this Notice
    except insofar as it is a Part 27 service to which 911 and enhanced
    911 (E911) and hearing aid compatibility rules may potentially be
    applied. Finally, in this Notice we do not seek comment on the
    allocation or service rules for broadcasting or other legacy
    operations in these bands.

[^7]: CMAs are the smallest geographic service areas that have been
    licensed by the Commission. *See* Facilitating the Provision of
    Spectrum-Based Services to Rural Areas and Promoting Opportunities
    for Rural Telephone Companies to Provide Spectrum-Based Services, WT
    Docket No. 02-381, 2000 Biennial Regulatory Review Spectrum
    Aggregation Limits for Commercial Mobile Radio Services, WT Docket
    No. 01-14, Increasing Flexibility to Promote Access to and the
    Efficient and Intensive Use of Spectrum and the Widespread
    Deployment of Wireless Services, and to Facilitate Capital
    Formation, WT Docket No. 03-202, *Report and Order and Further
    Notice of Proposed Rulemaking*, 19 FCC Rcd 19078, 19089 n.60 (2004)
    (*Rural Report and Order* and *Rural Further Notice*, respectively).

[^8]: This is Block D (752-762/782-792 MHz) in the Upper 700 MHz Band.

[^9]: Although we believe we should retain the current band plan in the
    Lower 700 MHz Band, we nevertheless seek comment on potential
    changes to the size of the spectrum blocks in the Lower 700 MHz
    Band.

[^10]: *See* 47 C.F.R. § 27.14(b).

[^11]: The Fourth Further Notice of Proposed Rule Making is issued in CC
    Docket No. 94-102. *See* Revision of the Commission's Rules to
    Ensure Compatibility With Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, Amendment of Parts 2 and 25 to Implement the
    Global Mobile Personal Communications by Satellite (GMPCS)
    Memorandum of Understanding and Arrangements; Petition of the
    National Telecommunications and Information Administration to Amend
    Part 25 of the Commission's Rules to Establish Emissions Limits for
    Mobile and Portable Earth Stations Operating in the 1610-1660.5 MHz
    Band, IB Docket No. 99-67, *Further Notice of Proposed Rulemaking*,
    17 FCC Rcd 25576 (2002) (*E911 Scope NPRM)*; Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, RM-8143, *Further
    Notice of Proposed Rulemaking*, 16 FCC Rcd 11491 (2001); Revision of
    the Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, *Report and Order
    and Further Notice of Proposed Rulemaking*, 11 FCC Rcd 18676 (1996)
    (*E911 Report and Order and Further Notice)*. The Second Further
    Notice of Proposed Rule Making is issued in WT Docket No. 01-309.
    *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, WT Docket No. 01-309, *Order on
    Reconsideration and Further Notice of Proposed Rulemaking*, 20 FCC
    Rcd 11221 (2005).

[^12]: *See* 47 C.F.R. § 27.5.

[^13]: *See* Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service, MM Docket No. 87-268,
    *Memorandum Opinion and Order on Reconsideration of the Sixth Report
    and Order*, 13 FCC Rcd 7418, 7435-36 ¶ 42 (1998) (*DTV MO&O of the
    Sixth Report and Order*). Channel 37 is not included because it is
    reserved exclusively for radio astronomy. *See* 47 C.F.R. §§ 2.106,
    73.603(c); Advanced Television Systems and Their Impact Upon the
    Existing Television Broadcast Service, MM Docket No. 87-268, *Sixth
    Report and Order*, 12 FCC Rcd 14588, 14608 n.75 (1997).

[^14]: This recovery of spectrum from existing, analog broadcast use is
    an important objective of the DTV transition. *See* Advanced
    Television Systems and Their Impact upon the Existing Television
    Broadcast Service, MM Docket No. 87-268, *Sixth Further Notice of
    Proposed Rule Making*, 11 FCC Rcd 10968, 10977 ¶ 18 (1996).

[^15]: *See, e.g., Lower 700 MHz Notice*, 16 FCC Rcd at 7282 ¶ 6; *Lower
    700 MHz Report and Order,* 17 FCC Rcd at 1025 ¶ 4.

[^16]: *See* Balanced Budget Act of 1997 § 3004 (adding new § 337 of the
    Communications Act); Reallocation of Television Channels 60-69, the
    746-806 MHz Band, ET Docket No. 97-157, *Report and Order*, 12 FCC
    Rcd 22953, 22955 ¶ 5 (1998), *recon*., 13 FCC Rcd 21578 (1998)
    (*Upper 700 MHz Reallocation Order*).

[^17]: *See* 47 U.S.C. § 337(a) (enacted by the Balanced Budget Act of
    1997, Pub. L. No. 105-33, § 3004, 111 Stat. 251, 266 (adding new
    Section 337(a) and establishing initial timetable for conducting
    auctions)).

[^18]: *Upper 700 MHz Reallocation Order*, 12 FCC Rcd at 22953 ¶ 1. For
    the 24 megahertz of spectrum in the Upper 700 MHz designated for
    public safety services, the Commission adopted the following band
    plan: 12.5 megahertz for General Use; 2.6 megahertz for
    Interoperability; 2.4 megahertz for State Licenses; 0.3 megahertz
    for Low Power Operations; 0.2 megahertz for Secondary Trunking; and
    6.0 for Reserve. *See* The Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *Fourth Memorandum Opinion and Order*, 17 FCC Rcd 4736,
    4763 app. D (2002). The channelization of the public safety spectrum
    is not addressed in this Notice.

[^19]: *See* 47 U.S.C. § 309(j)(14)(C)(i)(II) (2005).

[^20]: *See DTV MO&O of the Sixth Report and Order*, 13 FCC Rcd at
    7435-36 ¶ 42. The Commission stated that expanding the DTV core
    spectrum would permit recovery of 108 megahertz of spectrum at the
    end of the DTV transition period. *Id.* at 7436 ¶ 45.

[^21]: *See infra* para. 8.

[^22]: Balanced Budget Act of 1997 §§ 3003, 3007; *see* Auction Reform
    Act of 2002, *Report to Congress*, 18 FCC Rcd 12556, 12561 ¶ 8
    (2003) (*Auction Reform Act Report to Congress*) (explaining
    requirement to auction excess television spectrum by September 30,
    2002).

[^23]: *See* *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1024 ¶ 2.

[^24]: *See supra* note 22 (auction deadline amendments applied to both
    Upper and Lower bands).

[^25]: 47 U.S.C. § 309(j)(14)(A)-(B) (2005).

[^26]: 47 U.S.C. § 309(j)(14)(B)(i)-(iii) (2005).

[^27]: 47 U.S.C. § 309(j)(15) (2005), as added by the Auction Reform Act
    (authorizing the Commission to "take such action under \[Section
    309(j) of the Communications Act of 1934, as amended\], including
    the timing of, and deadlines for, qualifying for bidding; conducting
    auctions; collecting, depositing, and reporting revenues; and
    completing licensing processes and assigning licenses.").

[^28]: As explained below, in 2000 and 2001, the Commission assigned
    Guard Band licenses through competitive bidding for 6 of the 36
    megahertz of Upper 700 MHz commercial spectrum. *See infra* note 36.

[^29]: 47 U.S.C. § 309(j)(15)(C)(iii), as enacted by the Auction Reform
    Act. The Auction Reform Act also directed the Commission to delay
    its then-scheduled auction of certain licenses in the Upper 700 MHz
    band (Auction No. 31).

[^30]: DTV Act § 3002.

[^31]: The DTV Act provides a number of significant changes to the
    former DTV transition. One is the elimination of provisions that had
    permitted the extension of the DTV transition based on several
    factors, including the extent of market penetration of digital
    broadcast capabilities. *See* DTV Act § 3002(a)(2).

[^32]: DTV Act § 3003. "Recovered analog spectrum" is defined in the DTV
    Act to include the frequencies between 698 and 806 MHz "other than
    -- . . . the spectrum auctioned prior to the date of the enactment"
    of the legislation. *See* *id*. Public safety spectrum required by
    47 U.S.C. § 337 also is excluded in the Act. *Id*. Congress also
    extended the Commission's auction authority to September 30, 2011.
    *Id.*

[^33]: DTV Act §§ 3003(a), 3004 (establishing a Digital Television and
    Public Safety Fund).

[^34]: *See* H.R. Conf. Rep. No. 109-362 (2005), *reprinted in* 2006
    U.S.C.C.A.N. 3 (conference report for DTV Act).

[^35]: When this band plan was adopted, the Consolidated Appropriations
    Act of 2000 required that all proceeds of competitive bidding for
    such spectrum be deposited prior to September 30, 2000. Consolidated
    Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 2502,
    Appendix E, Sec. 213(a)(3), *reprinted in* 47 U.S.C.A. § 337 Note at
    Sec. 213(a)(3).

[^36]: These auctions were completed prior to the enactment of the
    Auction Reform Act. *See* 700 MHz Guard Bands Auction Closes,
    *Public Notice*, 15 FCC Rcd 18026 (2000) (announcing winning bidders
    in Auction 33); 700 MHz Guard Bands Auction Closes, *Public Notice*,
    16 FCC Rcd 4590 (2001) (announcing winning bidders in Auction 38).

[^37]: *See* *Auction Reform Act Report to Congress*, 18 FCC Rcd at
    12575 ¶ 50 (2003).

[^38]: *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 (2000) ("*Upper 700
    MHz First Report and Order*"). The service and auction rules for the
    Guard Band spectrum were established later in 2000. *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) (*700 MHz Guard Band Service
    Rules Order*).

[^39]: *See* *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 478
    ¶¶ 2-3 (adopting new subpart in Part 27 for the Guard Bands).

[^40]: *Id.* at 491 ¶ 35.

[^41]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 491 ¶ 36.
    Wideband CDMA is the 3G technology employed by Global System for
    Mobile Communications (GSM) carriers.

[^42]: *Id.* at 492 ¶ 38.

[^43]: *Id*. at 500 ¶ 57.The Commission's experience also showed that
    simultaneous multiple round auctions for a larger number of licenses
    take longer to complete than similar auctions involving fewer
    licenses. *Id.*

[^44]: *Id.* at 500 ¶ 56.

[^45]: *Id.* at 500 ¶ 57.

[^46]: At that time, Section 309(j)(14)(C)(ii) required that the
    Commission assign such spectrum and report to Congress the total
    revenues from competitive bidding for such licenses by September 30,
    2002. 47 U.S.C. § 309(j)(14)(C)(ii) (2001).

[^47]: 47 U.S.C. § 309(j)(15)(C)(iii), as enacted by the *Auction Reform
    Act*. As a result, a total of 740 licenses in Blocks C (734
    licenses) and D (6 licenses) have been made available in auctions
    beginning in 2002. *See* Lower 700 MHz Band Auction Closes, *Public
    Notice*, 17 FCC Rcd 17272 (2002) (announcing winning bids in Auction
    44); Lower 700 MHz Band Auction Closes, *Public Notice*, 18 FCC Rcd
    11873 (2003) (announcing winning bids in Auction 49); Auction of
    Lower 700 MHz Band Licenses Closes, *Public Notice*, 2005 WL 1861795
    (2005) (announcing winning bids in Auction 60).

[^48]: *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1053-54 ¶
    76.

[^49]: *Id.* at 1055 ¶ 80. At that time, 6 megahertz blocks aligned with
    incumbent broadcasters and were intended to minimize incumbency
    problems that have become moot as a result of the DTV Act.

[^50]: *Id*. at 1055 ¶¶ 80-81. Many commenters did not specify a
    particular unit and only stated that they supported "multiple
    blocks" of sufficient bandwidth to permit a variety of services.

[^51]: CMAs were found to correspond to the needs of many customers,
    including customers of small regional and rural providers. *Lower
    700 MHz Report and Order,* 17 FCC Rcd at 1061 ¶¶ 95- 96.

[^52]: *See* *Lower 700 MHz MO&O*, 17 FCC Rcd at 11619 ¶ 14 n.32 (noting
    that one 12 megahertz block of spectrum "is significant" in that it
    equals 25 percent of the 48 megahertz of spectrum in the Lower 700
    MHz Band).

[^53]: *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1061 ¶ 95. *See
    Lower 700 MHz MO&O*, 17 FCC Rcd at 11619 ¶ 14. The Commission
    specified the definition of the service areas with respect to the
    Gulf of Mexico. *See Lower 700 MHz Report and Order,* 17 FCC Rcd at
    1059 ¶ 90 & n.258.

[^54]: *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1060-61 ¶ 94.

[^55]: *Id.* at 1059-60 ¶¶ 91, 93. The Commission used the definition of
    EAGs as defined in the Upper 700 MHz Band proceeding, which included
    a particular definition concerning the division of the Gulf of
    Mexico between two EAGs. *See id.* at 1059 ¶ 90 & n.257.

[^56]: Incumbent TV stations in the Lower 700 MHz Band were also
    considered in determining the size of geographic areas, and EAGs
    were found to offer licensees significant flexibility to address
    issues associated with the protection of incumbent TV stations.
    *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1060 ¶ 92. The
    Commission did not accept an argument that licensing across large
    geographic areas might increase interference issues relating to TV
    broadcasting. *Id.* The Commission stated that any such risk of
    interference is offset by avoiding the need for complicated
    agreements that could arise if spectrum were licensed in smaller
    areas where several geographic service areas could overlap a TV
    protection zone. *Id.* *See also* Comments of the National
    Association of Broadcasters, Reallocation and Service Rules for the
    698-746 MHz Spectrum Band (Television Channels 52-59), Docket No. GN
    01-74, (May 14, 2001) at 6-7 (commenting on interference risk in
    connection with very large geographic areas).

[^57]: *Lower 700 MHz MO&O*, 17 FCC Rcd at 11619 ¶ 15. *Cf. id.*
    ("\[T\]he ability to aggregate spectrum may offer important
    benefits. In order to provide additional opportunities for firms
    seeking to aggregate paired spectrum within the same EAG, this
    Commission had to designate either Blocks A and B or Blocks B and C
    as the EAG blocks. Using Block B for MSA/RSA licenses would result
    in the two EAG blocks being split, frustrating this objective.").

[^58]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶ 70.

[^59]: *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1079 ¶ 149.

[^60]: 47 C.F.R. § 27.14(a). *See also, e.g.*, 47 C.F.R. §§
    22.503(k)(3), 90.685(b), 95.831, 101.527(a), 101.1011(a).

[^61]: The Commission also established options available to parties to
    partitioning and disaggregation agreements for complying with the
    substantial service requirement. *See* 47 C.F.R. § 27.15; *see also
    Upper* *700 MHz First Report and Order*, 15 FCC Rcd at 507-08 ¶¶
    76-78.

[^62]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶ 70;
    *Lower 700 MHz Report and Order,* 17 FCC Rcd at 1079 ¶ 151.

[^63]: *See* 47 C.F.R. § 27.14(b). We note that these provisions setting
    forth renewal expectancy criteria in comparative hearings under
    Section 27.14(b) apply only to non-broadcast services. *See, e.g.,
    Lower 700 MHz Report and Order*, 17 FCC Rcd at 1077 ¶ 146.

[^64]: *Compare Lower 700 MHz Report and Order*, 17 FCC Rcd at 1076-78
    ¶¶ 143-46 *with* *Upper 700 MHz First Report and Order*, 15 FCC Rcd
    at 503-04 ¶¶ 66-68.

[^65]: For example, in the Lower 700 MHz proceeding, the Commission
    provided no more than a statement that "\[t\]o claim a renewal
    expectancy, a Lower 700 MHz Band renewal applicant *involved in a
    comparative renewal proceeding* must demonstrate, at a minimum, the
    showing required in Section 27.14(b) of the Commission's rules."
    *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1077-78 ¶ 146
    (emphasis added); *see also* *Upper* *700 MHz First Report and
    Order*, 15 FCC Rcd at 504 ¶ 68.

[^66]: *See supra* para. 16.

[^67]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1078 ¶ 146
    (footnote omitted); *Upper 700 MHz First Report and Order*, 15 FCC
    Rcd at 504 ¶ 68; *see also supra* note 61.

[^68]: *See* 47 U.S.C. § 307(c)(1); *see also* 47 C.F.R. § 73.1020(a).

[^69]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 504 ¶
    67 (adopting license terms for 747-762/777-792 MHz) (modified by
    Errata, 15 FCC Rcd 4560 (WTB 2000) (correcting license termination
    date from January 1, 2014, to January 1, 2015)); 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, 5331 ¶ 73 (2000) (*700 MHz Guard Band Service Rules
    Order*) (adopting license terms for 746-747/776-777 and
    762-764/792-794 MHz); *Lower 700 MHz Report and Order*, 17 FCC Rcd
    at 1077 ¶ 145 (adopting license terms for 698-746 MHz); *see also*
    47 C.F.R. § 27.13(b).

[^70]: Construction requirements for the 700 MHz Band require licensees
    to make a showing of "substantial service" within the prescribe
    license term. 47 C.F.R. § 27.14(a).

[^71]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 504 ¶
    67.

[^72]: *Id.* at 504 ¶ 67 n.161, *on recon*. 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, *Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking*, 15 FCC Rcd 20845,
    20862-63 ¶ 45 (2000) (*Upper 700 MHz MO&O and FNPRM*); *see also* 47
    U.S.C. 309(j)(14)(B)(i)-(iii) (2005).

[^73]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 504 ¶
    67; *see also* 47 C.F.R. § 27.13(b).

[^74]: *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1077 ¶ 145;
    *700 MHz Guard Band Service Rules Order*, 15 FCC Rcd at 5331 ¶ 73.

[^75]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 521-22
    ¶ 111; *see also Upper 700 MHz MO&O and FNPRM,* 15 FCC Rcd at 20851
    at ¶ 10. The Commission also adopted limits of 30 watts ERP for
    control and mobile transmitters and 3 watts ERP for portable or
    hand-held devices. *See Upper 700 MHz First Report and Order*, 15
    FCC Rcd at 521-22 ¶ 111; 47 C.F.R. § 27.50(b)(2),(3).

[^76]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1063-64 ¶
    102. As with the rules for the Upper 700 MHz Band, the Commission
    adopted for the Lower 700 MHz Band a maximum power limit of 30 watts
    ERP for mobile and control stations, and 3 watts ERP for portable
    (hand-held) devices. *Id.*; 47 C.F.R. § 27.50(c)(2),(3).

[^77]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1064 ¶ 104.

[^78]: *Id.* at 1077 ¶ 110; 47 C.F.R. § 27.50(c)(5) (applying advanced
    notice requirement to stations transmitting in the 698-746 MHz
    band).

[^79]: *See* 47 C.F.R § 20.18; *E911 Report and Order and Further
    Notice*, 11 FCC Rcd 18676. The Commission's E911 requirements, which
    require wireless carriers to provide PSAPs with specific information
    (including location) relating to a 911 call, consist of two phases.
    Pursuant to E911 Phase I rules, wireless carriers are required to
    provide a callback number for the handset placing the 911 call and
    report the location of the cell tower that received the call. The
    Phase I rules require compliance within six months of a PSAP
    request. *See* 47 C.F.R. § 20.18(d). Under the E911 Phase II rules,
    wireless carriers are required to provide the location of the 911
    caller, by latitude and longitude, beginning within six months of a
    PSAP request. *See* 47 C.F.R. §§ 20.18(f), (g).

[^80]: *See* Revision of the Commission's Rules to Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems, *Report and Order and
    Second Further Notice of Proposed Rulemaking*, 18 FCC Rcd 25340,
    25346 ¶ 15 (2003) (*E911 Scope Order* and *Second FNPRM*,
    respectively).

[^81]: *E911 Scope Order*, 18 FCC Rcd at 25347 ¶ 18. The Commission also
    may use other factors in making its determination. *Id.* at 25347 ¶
    19.

[^82]: A handset is deemed hearing aid-compatible if it is certified as
    U3-rated under the ANSI C63.19 standard. Section 20.19(b)(1) of the
    Commission's rules provides that a wireless handset is deemed
    hearing aid-compatible if, at minimum, it receives a U3 rating "as
    set forth in the standard document ANSI C63.19-2001\[,\] 'American
    National Standard for Methods of Measurement of Compatibility
    between Wireless Communications Devices and Hearing Aids.'" 47
    C.F.R. § 20.19(b)(1). ANSI-C63.19-2001 established uniform methods
    of measurement and parametric requirements for the electromagnetic
    and operational compatibility and accessibility of hearing aids used
    with wireless communications devices, including cordless, cellular,
    and Personal Communications Service (PCS) phones, operating in the
    range of 800 MHz to 3 GHz. Focused on existing services which were
    in common use, ANSI C63.19-2001 provides tests for services in the
    800-950 MHz and 1.6-2.0 GHz bands. On April 25, 2005, the
    Commission's Office of Engineering and Technology (OET) announced
    that it also would certify handsets as hearing aid-compatible based
    on the revised draft version of the standard, ANSI C63.19-2005.
    *See* OET Clarifies Use of Revised Wireless Phone Hearing Aid
    Compatibility Standard Measurement Procedures and Rating
    Nomenclature, *Public Notice*, 20 FCC Rcd 8188 (OET 2005). On June
    6, 2006, moreover, OET and the Wireless Telecommunications Bureau
    announced that applicants also may certify handsets as hearing
    aid-compatible based on version 3.12 of that standard (ANSI
    C63.19-2006), reflecting further revisions adopted and released in
    2006. *See* Wireless Telecommunications Bureau and Office of
    Engineering and Technology Clarify Use of Revised Wireless Phone
    Hearing Aid Compatibility Standard, *Public Notice*, 2006 WL 1541044
    (WTB/OET 2006). ANSI C63.19-2006 provides tests for services in the
    800-950 MHz and 1.6-2.5 GHz bands. Thus, while applicants for
    certification may rely on the 2001, 2005 or 2006 version of the ANSI
    C63.19 standard, none of these versions of the ANSI standard
    presently address services provided in the 700 MHz Band.

[^83]: *See* Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, *Report and Order*, 18 FCC Rcd 16753,
    16780 ¶ 65 (2003) (*Hearing Aid Compatibility Report and Order*); 47
    C.F.R. § 20.19(c).

[^84]: The Commission required entities to label the subject handsets
    with the appropriate technical rating, and to explain the technical
    rating system in the owner's manual or as part of the packaging
    material for the handset. *See Hearing Aid Compatibility Report and
    Order*, 18 FCC Rcd at 16785-86 ¶¶ 83, 85-86. *See also* 47 C.F.R. §
    20.19(f).

[^85]: *See* 47 C.F.R. § 20.19(e)(1)-(2). The *de minimis* exception
    applies on a per air interface basis, and provides, *inter alia*,
    that manufacturers or mobile service providers that offer two or
    fewer digital wireless handsets in the U.S. are exempt from the
    requirements of the hearing aid compatibility rules.

[^86]: *See Hearing Aid Compatibility Report and Order*, 18 FCC Rcd at
    16780 ¶ 65*. See also* 47 C.F.R. § 20.19(c)(1)-(3).

[^87]: *See* 47 C.F.R. §§ 20.18(a), 20.19(a). The 700 MHz Band is not
    among the radio services listed in these rules.

[^88]: *See* Petition to Institute Review and Modification of the Size
    of Service Areas for Geographic Licensing for the Lower and Upper
    Bands of 700 MHz Spectrum Not Yet Auctioned, Reallocation and
    Service Rules for the 698-746 MHz Spectrum Band (Television Channels
    52-59), GN Docket No. 01-74, 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, Rural Cellular Association, (filed July
    29, 2005) (RCA Petition).

[^89]: RCA Petition at 4.

[^90]: *See id*. at 3-4.

[^91]: Comments of Rural Telecommunications Group, Inc. in Support of
    Modification of License Area Sizes for 700 MHz Spectrum,
    Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), GN Docket No. 01-74, 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, Rural Telecommunications
    Group, Inc. (filed September 27, 2005) (RTG Comments); Comments of
    RVW, Inc., Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), GN Docket No. 01-74,
    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, RVW,
    Inc. (filed October 4, 2005) (RVW Comments); *Ex Parte* Filings by
    USCC, WT Docket No. 99-168, GN Docket No. 01-74 (filed February 3
    and 13, 2006). The Commission did not seek public comment on RCA's
    petition, but RTG and RVW filed comments in support of the petition.

[^92]: RTG Comments at 5, 7. RTG requests that MSA/RSA licenses be
    provided for Lower Band Block B and Upper Band Block C, totaling 22
    megahertz of spectrum.

[^93]: USCC *Ex Parte* at 3-4 (Feb. 13, 2006).

[^94]: CTIA, *Background on CTIA's Semi-Annual Wireless Industry
    Survey*,
    <http://www.ctia.org/research_statistics/statistics/index.cfm/AID/10030>
    (Annualized Wireless Industry Survey Results - December 1985 To
    December 2005: Reflecting Domestic U.S. Commercially-Operational
    Cellular, ESMR and PCS Providers) (*CTIA Industry Surveys*).

[^95]: *Id.*

[^96]: *See* Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, WT Docket No. 05-71, *Tenth Report*, 20
    FCC Rcd 15908 (2005) (*Tenth CMRS Competition Report*).

[^97]: *See CTIA Industry Surveys* (December 2003 and 2005 data).

[^98]: Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, *Fifth Report*, 15 FCC Rcd 17660, 17670
    (2000).

[^99]: Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, WT Docket No. 04-111, *Ninth Report*, 19
    FCC Rcd 20597, 20613 (2004).

[^100]: *See* Applications of Nextel Communications, Inc. and Sprint
    Corporation for Consent to Transfer Control of Licenses and
    Authorizations, *Memorandum Opinion and Order*, 20 FCC Rcd 13967
    (2005); Applications of AT&T Wireless Services, Inc., Transferor,
    and Cingular Wireless, Corp., Transferee, *Memorandum Opinion and
    Order*, 19 FCC Rcd 21522 (2004).

[^101]: *See Tenth CMRS Competition Report*, 20 FCC Rcd at 15985.

[^102]: During this seven year period, the number of U.S. subscribers to
    mobile telephone services has more than doubled from approximately
    86 million to more than 208 million subscribers. *See CTIA Industry
    Surveys* (December 1998 and 2005 data). This has produced an
    increase in nationwide mobile penetration from 32 percent to 69
    percent during the period. *See supra* para. 24.

[^103]: With respect to the size of geographic service areas, comment is
    sought only with respect to the unauctioned portions of the 700 MHz
    Band.

[^104]: In the last seven years, advancements have occurred in wireless
    technologies and service offerings, the Commission has issued orders
    to facilitate spectrum access in rural areas, and there has been a
    greater awareness of the 700 MHz Band's near-term suitability for
    deployment of broadband voice, data, and video services.

[^105]: *See generally* 47 C.F.R. § 27.5. The AWS-1 band is composed of
    the two 45-megahertz blocks of spectrum at 1710-1755 MHz and
    2110-2155 MHz. In November 2002, as part of the *AWS Allocation
    Second Report and Order*, the Commission identified and allocated
    the two 45-megahertz blocks of spectrum at 1710-1755 MHz and
    2110-2155 MHz for the provision of advanced wireless services for
    AWS-1. *See* Amendment of Part 2 of the Commission's Rules to
    Allocate Spectrum Below 3 GHz for Mobile and Fixed Services to
    Support the Introduction of New Advanced Wireless Services,
    Including Third Generation Wireless Systems, ET Docket No. 00-258,
    *Second Report and Order*, 17 FCC Rcd 23193 (2002) (*AWS Allocation
    Second Report and Order*).

[^106]: These factors included facilitating construction of a nationwide
    footprint by providers, allowing existing technologies to grow while
    also encouraging development of new technologies, providing
    economies of scale, addressing problems associated with incumbent TV
    stations, and facilitating completion of the auction in a timely
    manner. *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    501 ¶ 59, *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1059-1061
    ¶¶ 91-94.

[^107]: *Rural Report and Order,* 19 FCC Rcd at 19089 ¶14.

[^108]: RVW Comments at 2.

[^109]: The Commission has allocated 82 megahertz of spectrum on a CMA
    basis: 20 megahertz of AWS spectrum, *see* 47 C.F.R. § 27.6(h)(1);
    Service Rules for the Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, *Order on Reconsideration*, FCC
    05-149, 2005 WL 1964113, at \*7 ¶ 20 (rel. Aug. 15, 2005) (*AWS-1
    Order on Reconsideration*); 50 megahertz for cellular service, *see*
    47 C.F.R. § 22.909; *Tenth CMRS Competition Report*, 20 FCC Rcd at
    15934-3 ¶ 70; and the 12 megahertz in paired Block C in the Lower
    700 MHz Band, *see* 47 C.F.R. § 27.6(c)(2).

[^110]: *See supra* para. 23. In that proceeding, RCA stated that its
    members for the most part hold 25-megahertz cellular RSA licenses to
    provide voice services, but that 10 megahertz of AWS spectrum over
    CMAs would not be sufficient for deploying anticipated forms of
    advanced wireless services in rural areas. *AWS-1 Order on
    Reconsideration,* 2005 WL 1964113, at \*5 ¶ 13.

[^111]: In its comments on RCA's petition, RTG states that it "applauds
    the FCC's recent . . . use of smaller geographic license areas in
    the Lower 700 MHz and AWS bands," RTG Comments at 7, but it states
    that 12 megahertz of 700 MHz spectrum over CMAs is insufficient and
    will be exhausted as the demand for broadband grows in these areas.
    *Id.* at 8

[^112]: The Commission has utilized a wide variety of geographic service
    areas to license spectrum, including nationwide, regional and local
    licensing, as well as a combination of these approaches. Cellular
    markets comprise MSAs/RSAs, and broadband PCS licenses are based on
    493 Basic Trading Areas (BTAs) and 51 Major Trading Areas (MTAs).
    For Wireless Communications Service (WCS) licenses, geographic areas
    based on 12 Regional Economic Area Groupings (REAGs) and 52 Major
    Economic Areas (MEAs) are used. *See* 47 C.F.R. §§ 27.5(a), 27.6(a).
    AWS licenses in the 1710-1755 MHz and 2110-2155 MHz Bands are to be
    based on three geographic area sizes -- REAGs, EAs, and MSAs/RSAs --
    to meet the needs of a variety of prospective bidders and service
    providers. *Id.* § 27.6(h).

[^113]: For both the Upper and the Lower 700 MHz Bands, the Commission
    used a specific definition concerning the division of the Gulf of
    Mexico between two EAGs. *See Lower 700 MHz Report and Order,* 17
    FCC Rcd at 1059 ¶¶ 90-91.

[^114]: Where the Gulf of Mexico has been included as a separate license
    areas, there have been 52 MEAs. *Compare, e.g.,* 47 C.F.R. §
    27.6(a)(1) (MEA 52 for WCS service is the Gulf of Mexico) *with* 47
    C.F.R. § 22.503(b)(3) (51 MEAs for paging service without a license
    area for Gulf of Mexico).

[^115]: We note that the Commission has adopted REAGs for three license
    blocks over 40 megahertz for AWS. *See AWS-1 Order on
    Reconsideration*, 2005 WL 1964113, at \*7 ¶ 20. The twelve REAGs
    adopted for AWS consist of six areas covering the continental U.S.,
    plus six additional areas for: Alaska; Hawaii; Guam and the Northern
    Mariana Islands; Puerto Rico and the U.S. Virgin Islands; American
    Samoa; and the Gulf of Mexico. Besides treating these areas outside
    the United States as separate license areas, the six EAGs differ
    geographically from the six REAGs within the continental United
    States. WCS spectrum, as well as the AWS spectrum, has been made
    available for licensing on the basis of REAGs. *See* 47 C.F.R. §
    27.5(a)(2).

[^116]: *See supra* paras. 22-23.

[^117]: *See* 47 C.F.R. § 27.2(a).

[^118]: *See* Press Release, Qualcomm Inc., Qualcomm Names Gina Lombardi
    to Lead MediaFLO USA, Inc. (Feb. 1, 2006), *available at*
    <http://www.qualcomm.com/press/releases/2006/060201_names_gina_lombardi.html>
    (last visited Aug. 6, 2006). Among the results of this effort are
    demonstrations of FLO technology, a multicast feature and component
    of the MediaFLO system, which have featured handsets developed
    separately by equipment manufacturers. Press Release, Qualcomm Inc.,
    Qualcomm and Samsung Electronics Conduct FLO™ Technology
    Demonstration at 2006 International CES (Jan. 4, 2006), available at
    <http://www.qualcomm.com/press/releases/2006/060104_samsung_electronics_conduct.html>
    (last visited Aug. 6, 2006); Press Release, Qualcomm Inc., Qualcomm
    and LG Electronics MobileComm Demonstrate Flo™ Technology on 3G
    Handsets at 2006 International CES (Jan. 4, 2006), *available at*
    <http://www.qualcomm.com/press/releases/2006/060104_lg_electronics_mobilecomm.html>
    (last visited Aug. 6, 2006).

[^119]: For example, Aloha Partners LP ("Aloha Partners") acquired 158
    CMA licenses in the Lower 700 MHz Block C at auction and an
    additional 72 licenses in the secondary market in an apparent effort
    to provide high-speed data and Internet services in most areas of
    the country. It plans to offer a nationwide wireless Internet
    service in the 700 MHz band, including service to rural areas. *700
    MHz Spectrum Auction a Likely Lure for Players Traditional and
    Otherwise*, Comm. Daily, Feb. 3, 2006, 2006 WLNR 1875145. Aloha
    Partners has conducted a market trial of a mobile broadband IP
    services using Flarion Technologies' ("Flarion") FLASH -- OFDM
    equipment, and plans additional trials. *Digital Television
    Transition- Hearing II Before the Senate Comm. on Commerce Science
    and Transportation*, 109th Cong. (2005) (statement of Charles C.
    Townsend, President, Aloha Partners, LP), *available at*
    <http://commerce.senate.gov/pdf/townsend.pdf> (last visited Aug. 6,
    2006) (Townsend testimony). *See also*, Lynnette Luna, *Aloha Plans
    Test of Arizona High-Speed Data Network, Mobile Radio Tech*., Dec.
    1, 2004, 2004 WLNR 14415288; *Flarion Press Release*. Qualcomm has
    acquired Flarion. *See* Press Release, Qualcomm Inc., Qualcomm
    Completes Acquisition of Flarion Technologies (Jan. 19, 2006),
    *available at*
    <http://www.qualcomm.com/press/releases/2006/060119_completes_acquisition_flarion.html>
    (last visited Aug. 6, 2006).

[^120]: We note that Green Hills Companies (a small licensee in the
    Lower 700 MHz Block C) has worked with equipment vendor Airspan to
    develop a fixed wireless service in rural Missouri. *See* Anna
    Henry, Green Hills Rolls Out 700 MHz Service, Rural
    Telecommunications, Sept. 1, 2005, 2005 WLNR 16027147. Other Lower
    700 MHz licensees have deployed a wireless 700 MHz platform
    developed by Vyyo Inc in rural portions of the United States. *See*
    U.S. Government\'s Rural Utilities Service (RUS) Approves Vyyo\'s
    700 MHz Wireless Broadband Solution, Aug. 10, 2005, Vyyo, News
    Release *available at* <http://www.vyyo.com/Site/news/2005.html>
    (last visited Aug. 6, 2006). In comments supporting RCA's petition,
    RVW states that seven small entities in Nebraska and Kansas have
    deployed broadband internet systems in Block C of the Lower 700 MHz
    Band. RVW Comments at 2.

[^121]: The Commission anticipated the development of 3G technologies,
    such as Wideband CDMA, when it adopted the *Upper 700 MHz First
    Report and Order*. *See Upper 700 MHz First Report and Order*, 15
    FCC Rcd at 491 ¶ 36 (discussing the need for 5 MHz spectrum blocks
    to accommodate Wideband CDMA transmissions). Since that time,
    Wideband CDMA and 1xEV-DO systems have been implemented by GSM and
    CDMA carriers, respectively, in the Cellular and PCS bands, thereby
    making 3G services available in many parts of the country.

[^122]: Intel describes WiMax as a "standards-based wireless technology
    that provides high-throughput broadband connections over long
    distances." *See* Communications *at*
    <http://www.intel.com/technology/comms/index.htm> (last visited July
    31, 2006); WiMax Broadband Wireless Access Technology *at*
    <http://www.intel.com/netcomms/technologies/wimax/> (last visited
    Aug. 6, 2006). Qualcomm describes MediaFLO as a "nationwide
    'mediacast' network, delivering many channels of high-quality video
    and audio programming to third-generation mobile phones at mass
    market prices." *See* Press Release, Qualcomm, "Qualcomm Subsidiary
    to Support Nationwide Deliver of Mobile Multimedia in 700 MHz
    Spectrum," (Nov. 1, 2004), *available* *at*
    <http://www.qualcomm.com/press/releases/2004/041101_mediaflo_700mhz.html>
    (last visited Aug. 6, 2006).

[^123]: For example, EAs and EAGs are related to each other. *See*
    *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 498 ¶ 54
    (stating that in the 220 MHz auction, spectrum was auctioned in six
    EAGs "which were also based on EAs as defined by the Department of
    Commerce"). There are six EAGs, *see Lower 700 MHz Report and
    Order*, 17 FCC Rcd at 1024 ¶ 2, and, where the Gulf of Mexico has
    been included as a separate area, 176 EAs, *see* Service Rules for
    Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT
    Docket No. 02-353, *Report and Order*, 18 FCC Rcd 25162, 25177 ¶ 40
    (2003) (*AWS-1 Report and Order*).

[^124]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1059 ¶ 90 &
    nn.257-58; *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 500
    ¶ 56 & n.137.

[^125]: *See infra* section III.B.

[^126]: RTG Comments at 7.

[^127]: Base station transmitters on Blocks C and D must meet a 76 + 10
    log P OOBE limit, and C and D block mobile transmitters must meet a
    65 + 10 log P limit, for all emissions into the 764-776 and 794-806
    MHz public safety bands. *See* 47 C.F.R. § 27.53.

[^128]: For example, base transmitters operating in the 752-762 MHz D
    block must limit emissions to the 76 + 10 log P level in spectrum
    only two megahertz from the upper edge of the band, and mobile
    stations operating in the 777-782 MHz C block must limit emissions
    to the 65 + 10 log P level in spectrum only one megahertz from the
    lower edge of that band. We note that Pegasus and Access Spectrum
    have proposed various alternative Upper 700 MHz band plans. *See*
    Letters from Kenneth R. Boley, counsel to Access Spectrum, L.L.C.,
    to Marlene H. Dortch, Secretary, Federal Communications Commission,
    WT Docket No. 05-157 (Aug. 3, 2005 and Nov. 4, 2005) (appending
    White Papers *Implementing the Vision for 700 MHz: Rebanding the
    Upper 700 MHz A and B Blocks For Next-Generation Wireless Broadband*
    and *Rule Changes to Implement to Proposed Rebanding of the Upper
    700 MHz A and B Blocks for Next Generation Wireless Broadband*);
    Federal Communications Commission Requests Comment on Spectrum Needs
    of Emergency Response Providers, Input Required for FCC Report
    Mandated by the Intelligence Reform and Terrorism Prevention Act of
    2004, WT Docket 05-157, *Public Notice*, 20 FCC Rcd 7774 (2005).
    Their proposals would change the spectral separation that currently
    exists between the C and D blocks and the public safety bands.

[^129]: For example, as discussed below, *see infra* section III.B., we
    consider a possible revision to the band plan for the Upper 700 MHz
    Band, which would provide for three paired 10-megahertz blocks in
    the current location of Blocks C and D. Under such a revision,
    equipment operating in the "middle" paired 10-megahertz block, at
    752-757/782-787 MHz, would be somewhat removed from the public
    safety bands, and would therefore not require as much filtering as
    equipment operating on either of the "outside" paired 10-megahertz
    blocks, at 747-752/777-782 MHz and 757-762/787-792 MHz.

[^130]: *See infra* section III.B.

[^131]: 1xEV-DO transmissions operate on 1.25 MHz bandwidths and
    Wideband CDMA transmissions operate on 5 MHz bandwidths.

[^132]: *See* "802.16 Enables Versatile Broadband Wireless Systems --
    Flexibility & Performance Key for Worldwide Deployment," Matthias
    Feulner, Texas Instruments, *available at*
    [http://www.openbasestation.org/Newsletters/June2005/TI%20WiMAX%20RF%20article.htm](http://www.openbasestation.org/Newsletters/June2005/TI WiMAX RF article.htm)
    (last visited Aug. 6, 2006) (stating that "the \[802.16\] standard
    specifies optionally multiples of 1.25 MHz, 1.5 MHz and 1.75 MHz up
    to a total bandwidth of 20 MHz."), (last visited July 25, 2006);
    [Stephane Le Dreau,]{.underline} Vice President of CDMA Business
    Development, Nortel Networks, *Emerging Technologies*, at 8 (Sept.
    26, 2004), *available at*
    [http://www.cdg.org/news/events/CDMASeminar/041019_Russia/8-Nortel-CDMA%20Russia%20Industry%20forum%2010.pdf](http://www.cdg.org/news/events/CDMASeminar/041019_Russia/8-Nortel-CDMA Russia Industry forum 10.pdf)
    (last visited Aug. 6, 2006).

[^133]: RTG, in its comments in support of RCA's petition, suggests that
    the Commission provide CMA licensing in the Lower 700 MHz Band's
    Block B and in the Upper 700 MHz Band's Block C. RTG Comments at
    7-9.

[^134]: We note that the WiMax standards under development provide for
    TDD, as well as frequency division duplexed (FDD), transmissions.

[^135]: *See supra* paras. 13-15. The lower block of Block C is located
    at 710-716 MHz, and Block D is located at 716-722 MHz. The upper
    block of Block C is located at 740-746 MHz.

[^136]: We are seeking comment in this section on the use of 5 megahertz
    blocks in the Upper 700 MHz Band. However, the use of 5 megahertz
    blocks in the Lower 700 MHz Band appears to be problematic. For
    example, considering only the 12 megahertz of spectrum located at
    698-710 MHz (*i.e*., Blocks A and B), if we were to place two 5
    megahertz blocks in this band, this would leave two megahertz of
    spectrum in the band that would have to be separately assigned.
    Also, because the 698-710 MHz band is paired with the 728-740 MHz
    band, this circumstance would apply to the 728-740 MHz band as well.

[^137]: *See* USCC *Ex Parte* at 3 (Feb. 13, 2006).

[^138]: The version of 1xEV-DO currently being implemented by CDMA
    carriers is referred to as "1xEV-DO Rev. 0." More advanced versions
    of 1xEV-DO technology, 1xEV-DO Rev. A and 1xEV-DO Rev. B, are
    expected to be deployed in 2006 and 2008, respectively. All 1xEV-DO
    versions operate on 1.25 megahertz bandwidths, and 5 megahertz
    blocks are needed to accommodate three 1xEV-DO emissions. *See*
    Press Release, CDMA Development Group, *CDMA2000 EV-DO Revision B
    Standard to be Published in First Quarter of 2006*, *available at*
    <http://www.cdg.org/news/press/2005/Nov16_05.asp> (last visited Aug.
    6, 2006). The next-generation technology to be implemented by GSM
    carriers is called High Speed Downlink Packet Access (HSDPA); HSDPA
    is not expected to be available in the U.S. until the second half of
    2006. Like Wideband CDMA, HSDPA transmissions operate on 5 MHz
    channels. *See* Airvana, Technology: Comparing Technologies,
    *available* *at*
    <http://www.airvananet.com/technology/technology_hsdpa.htm> (last
    visited Aug. 6, 2006).

[^139]: *See* Qualcomm Inc.'s MediaFlo Overview, at 9 (April, 2005)
    *available at*
    [http://www.cdg.org/news/events/CDMASeminar/05_LatinAm/050420/6c%2015-30%20Omar%20Javaid.pdf](http://www.cdg.org/news/events/CDMASeminar/05_LatinAm/050420/6c 15-30 Omar Javaid.pdf)
    (last visited Aug. 6, 2006) (indicating support for channel widths
    of 5, 6, 7, and 8 MHz); *see also supra* paras. 38, 44 (discussing
    Qualcomm as licensee in the Lower 700 MHz Band).

[^140]: *See* Feulner, "802.16 Enables Versatile Broadband Wireless
    Systems -- Flexibility & Performance Key for Worldwide Deployment,"
    (stating that for WiMax a wide range of possible signal bandwidths
    must be supported, and that the standard specifies optionally
    multiples of 1.25 MHz, 1.5 MHz, and 1.75 MHz up to a total bandwidth
    of 20 MHz).

[^141]: *See* *AWS-1 Order on Reconsideration,* 2005 WL 1964113, at \*5
    ¶ 12 (citing *AWS-1 Report and Order,* 18 FCC Rcd at 25178 ¶ 44
    (2003)).

[^142]: *Id.* at \*5 ¶ 14 (discussing that including 20 megahertz
    licensed on a CMA basis in that band plan will foster service to
    rural areas and tribal lands, and acknowledging that CMAs allow the
    mixing and matching of areas to fit business plans).

[^143]: *Id.* at \*4, 7 ¶¶ 10, 18 (reducing the spectrum attributable to
    an REAG area and creating an additional EA block adding 176
    licenses).

[^144]: Specifically, if Block D were divided into two paired 10
    megahertz blocks, 1xEV-DO transmissions on those two blocks would
    produce an overall data throughput 14 percent less than that of a
    single paired 20 megahertz block. This lower throughput level is due
    to the need to place 0.625 megahertz guard bands at both ends of 5
    and 10 megahertz blocks and the loss of usable spectrum that then
    results from having four, rather than two guard bands in a 10
    megahertz segment (*i.e.*, a 10 MHz block can accommodate seven 1.25
    MHz emissions, while two 5 MHz blocks can accommodate only three
    1.25 MHz emissions each). Thus, as the CDMA Development Group (a
    consortium comprised of CDMA service providers and manufacturers,
    application developers, and content providers) reports, a single
    1xEV-DO (Rev. 0) emission on a 10 MHz block produces a throughput of
    4200-6090 kb/s, but two 1xEV-DO (Rev. 0) emissions on two 5 MHz
    blocks produce a throughput of only 3600-5220 kb/s. *See* Delivering
    Voice and Data: Comparing CDMA2000 and GSM/GPRS/EDGE/UMTS, CDMA
    Development Group, Dec. 2005 *available at*
    [http://www.cdg.org/resources/white_papers/files/Capacity%20Dec%202005.pdf](http://www.cdg.org/resources/white_papers/files/Capacity Dec 2005.pdf)
    (last visited Aug. 6, 2006).

[^145]: The WiMAX Forum is a non-profit organization whose mission is to
    promote the adoption of IEEE 802.16 compliant equipment and to
    facilitate the deployment of broadband wireless networks based on
    IEEE 802.16 standards. *See* About the WiMAX Forum *at*
    <http://www.wimaxforum.org/about/> (last visited Aug. 6, 2006).

[^146]: *See* Fixed, nomadic, portable and mobile applications for
    802.16 -- 2004 and 802.16e WiMAX networks, WiMAX Forum, at 6, Nov.
    2005 *available at*
    <http://www.wimaxforum.org/news/downloads/Applications_for_802.16-2004_and_802.16e_WiMAX_networks_final.pdf>,
    (last visited Aug. 6, 2006).

[^147]: In addition, current Commission rules enable licensees to
    disaggregate spectrum covered by a single license.

[^148]: We note that the Commission previously sought comment on a
    similar approach in another proceeding. *See* Amendment of Parts 1,
    21, 73, 74, and 101 of the Commission's Rules to Facilitate the
    Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 and 2500-2690 Bands, WT
    Docket No. 03-66, *Notice of Proposed Rule Making and Memorandum
    Opinion and Order*, 18 FCC Rcd 6722, 6820-6822 ¶¶ 241-46 (2003).

[^149]: The Commission's options with respect to competitive bidding are
    limited, of course, by the extent of its statutory authority. *See*
    47 U.S.C. § 309(j).

[^150]: Section 309(j)(4)(B) of the Communications Act requires the
    Commission to prescribe regulations that include "performance
    requirements, such as appropriate deadlines and penalties for
    performance failures, to ensure prompt delivery of service to rural
    areas, to prevent stockpiling or warehousing of spectrum by
    licensees or permittees, and to promote investment in and rapid
    deployment of new technologies and services."  47 U.S.C. §
    309(j)(4)(B). 

[^151]: *See supra* para. 16.

[^152]: 47 C.F.R. § 27.14(a).

[^153]: Section 27.3, entitled "Other applicable rule parts," lists
    various of the Commission's other, non-Part 27 rule parts that are
    applicable to Wireless Communications Services. *See* 47 C.F.R. §
    27.3.

[^154]: *Id*. § 27.15(d).

[^155]: Under the current rule in Section 27.15(d), licensees in some
    cases are able to decide that one party has the performance
    obligation regardless of the amount of spectrum or area held by that
    party. *Id*.

[^156]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶ 71.

[^157]: The order defines "rural areas" as "those counties (or
    equivalent) with a population density of 100 persons per square mile
    or less, based upon the most recently available Census data." *Rural
    Report and Order*, 19 FCC Rcd at 19087 ¶ 11.

[^158]: *Rural Report and Order*, 19 FCC Rcd at 19123 ¶ 79. We note that
    the Commission, in adopting substantial service requirements and
    safe harbors for the Broadband Radio Service (BRS) and the
    Educational Broadband Service (EBS), stated that "the traditional
    safe harbors associated with other Part 27 services are too lenient
    given the particular circumstances of BRS and EBS." Amendment of
    Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate
    the Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, WT
    Docket No. 03-66, *Order on Reconsideration and Fifth Memorandum
    Opinion and Order and Third Memorandum Opinion and Order and Second
    Report and Order*, 21 FCC Rcd 5606, 5722-26 ¶¶ 281-290 (2006)
    (quoting para. 286). In addition, the Commission adopted modified
    versions of the safe harbors which had been adopted in the *Rural
    Report and Order*. *Id.* at 5728 ¶ 294.

[^159]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶ 70
    (adopting the "substantial service" standard for the Upper 700 MHz
    Band); *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1079 ¶ 149
    (later adopting the same "substantial service" standard for the
    Lower 700 MHz Band). In choosing to apply the "substantial service"
    standard, the Commission stated that the policy, together with its
    auction rules, service rules, and overall competition and universal
    service policies, constitute "effective safeguards and performance
    requirements for licensing this spectrum." *Upper 700 MHz First
    Report and Order*, 15 FCC Rcd at 505-06 ¶ 72. In applying the
    "substantial service" standard in lieu of other performance
    requirements, such as a construction benchmark, for the Lower 700
    MHz Band, the Commission observed that a "substantial service"
    standard "provides the flexibility required to accommodate the new
    and innovative services that are permitted by the Lower 700 MHz
    Band's reallocation." *Lower 700 MHz Report and Order*, 17 FCC Rcd
    at 1079 ¶ 150.

[^160]: *See* 47 C.F.R. § 24.203.

[^161]: *See* 47 C.F.R. § 24.103. Nationwide narrowband PCS licensees
    that chose to meet the geographic requirement had to construct
    sufficient to serve a composite area of 750,000 square kilometers,
    regional licensees that chose this option had to construct
    sufficient to serve a composite area of 150,000 square kilometers,
    and MTA licensees in the service that chose this option had to
    construct sufficient to serve a composite area of 75,000 square
    kilometers.

[^162]: *Rural Report and Order*, 19 FCC Rcd at 19124-25 ¶ 82. In the
    *Rural NPRM*, the Commission had sought comment on whether it should
    adopt geographic-based benchmarks for certain services that are
    licensed on a geographic area basis and that do not have such a
    requirement. Facilitating the Provision of Spectrum-Based Services
    to Rural Areas and Promoting Opportunities for Rural Telephone
    Companies to Provide Spectrum-Based Services, WT Docket No. 02-381,
    *Notice of Proposed Rulemaking*, 18 FCC Rcd 20802, 20824-25 ¶¶ 41-42
    (2003) (*Rural NPRM*).

[^163]: *See generally Rural Further Notice*, 19 FCC Rcd at 19156-59 ¶¶
    151-156.

[^164]: Licensees for the cellular service, which are geographically
    based, are given five years to construct facilities and provide
    service. After the end of this period, those portions of the license
    area that have been constructed are retained by the licensee, while
    those portions that are not constructed revert back to the
    Commission for re-licensing. 47 C.F.R. §§ 22.947, 22.949.

[^165]: As noted above, *supra* note 159, the Commission specifically
    rejected the use of a "keep what you use" standard, as well as
    population- or geography-based construction requirements, for the
    700 MHz Band. *See* *Lower 700 MHz Report and Order*, 17 FCC Rcd at
    1079 ¶ 150.

[^166]: *See* Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets, WT Docket No.
    00-230, *Report and Order and Further Notice of Proposed
    Rulemaking*, 18 FCC Rcd 20604 (2003) (*Secondary Markets First
    Report and Order*); Promoting Efficient Use of Spectrum Through
    Elimination of Barriers to the Development of Secondary Markets, WT
    Docket No. 00-230, *Second Report and Order, Order on
    Reconsideration, and Second Further Notice of Proposed Rulemaking,*
    19 FCC Rcd 17503 (2004) (*Secondary Markets Second Report and
    Order*).

[^167]: *See generally Secondary Markets First Report and Order*, 18 FCC
    Rcd 20604; *Secondary Markets Second Report and Order*, 19 FCC Rcd
    17503.

[^168]: *See, e.g.,* *Upper 700 MHz First Report and Order*, 15 FCC Rcd
    at 506 ¶ 74*, Lower 700 MHz Report and Order*, 17 FCC Rcd at 1080-81
    ¶¶ 154-57.

[^169]: *Rural Report and Order*, 19 FCC Rcd at 19097, 19098-99, ¶ 33, ¶
    38.

[^170]: *Id.* at 19099-19100 ¶ 40.

[^171]: We note that some commenters in the rural proceeding, especially
    those representing rural interests, argued that existing secondary
    market mechanisms are insufficient to promote access to spectrum.
    *See, e.g., Rural Further Notice*, 19 FCC Rcd at 19153-56 ¶¶ 147-50.

[^172]: *See infra* section III.D.

[^173]: *See* 47 C.F.R. § 27.14(b).

[^174]: Section 1.2110(f)(3)(i) of the Commission's rules provide that a
    qualifying tribal land is any federally recognized Indian tribe's
    reservation, Pueblo, or Colony, including former reservations in
    Oklahoma, Alaskan Native regions established pursuant to the Alaskan
    Native Claims Settlement Act (85 Stat. 688), and Indian allotments,
    that has a wireline telephone subscription rate equal to or less
    than 85 percent, based on the most recently available U.S. Census
    Data. 47 C.F.R. § 1.2110(f)(3)(i) (2005).

[^175]: *See* 47 C.F.R. § 1.2110(f)(3). *See* Extending Wireless
    Telecommunications Services to Tribal Lands, WT Docket No. 99-266,
    *Report and Order and Further Notice of Proposed Rulemaking*, 15 FCC
    Rcd 11794 (2000) (*Tribal Lands Bidding Credit Report and Order*);
    Extending Wireless Telecommunications Services to Tribal Lands, WT
    Docket No. 99-266, *Second Report and Order and Second Further
    Notice of Proposed Rulemaking*, 18 FCC Rcd 4775 (2003) (*Tribal
    Lands Bidding Credit Second Report and Order*); Extending Wireless
    Telecommunications Services to Tribal Lands, WT Docket No. 99-266,
    *Third Report and Order*, 19 FCC Rcd 17652 (2004) (*Tribal Lands
    Bidding Credit Third Report and Order*).

[^176]: *See* 47 C.F.R. §1.2110(f).

[^177]: DTV Act §§ 3003(a), 3004 (establishing a Digital Television and
    Public Safety Fund); *see supra* para. 9.

[^178]: In 2004, the Commission decided not to accept applicant
    self-certification generally as sufficient for obtaining Tribal
    Lands Bidding Credits. *See Tribal Lands Bidding Credit Third Report
    and Order*, 19 FCC Rcd at 17656-57 ¶ 9.

[^179]: *Tribal Lands Bidding Credit Report and Order*, 15 FCC Rcd at
    11816 ¶ 64. In this order, the Commission stated: "\[W\]e do not
    favor creating small license areas comprised exclusively or
    primarily of tribal lands. We find that tribal lands should
    generally be included in a larger licensing area to enable licensees
    to use profits derived from serving lower cost areas to provide
    service to typically high cost, tribal areas." *Id.*

[^180]: *See* Wireless Telecommunications Bureau Grants Lower 700 MHz
    Band Licenses, Auction Event No. 44, *Public Notice*, 18 FCC Rcd
    4584 attachment A (2003).

[^181]: If applied to the unauctioned 700 MHz Band licenses, this policy
    would include Lower 700 MHz Band Blocks A, B, and E, as well as
    Upper 700 MHz Band Blocks C and D. If applied to the 700 MHz Band
    licenses that already have been auctioned, this policy also would
    include the Lower 700 MHz Band Blocks C and D. We could also apply
    the same rules for all Lower 700 MHz Band licenses, and different
    rules for the Upper 700 MHz Band licenses. The renewal criteria and
    process for authorizations for the 700 MHz Guard Bands at Blocks A
    and B in the Upper 700 MHz Band are beyond the scope of this Notice.

[^182]: *See supra* section III.C.1.

[^183]: *See supra* paras. 16-17 (discussing "substantial service" under
    both Section 27.14(a) and 27.14(b) of the Commission's rules).

[^184]: Amendment of the Commission' Rules to Establish Part 27, the
    Wireless Communications Service ("WCS"), GN Docket No. 96-228,
    *Report and Order*, 12 FCC Rcd 10785, 10840-41 ¶ 107 (1997) (*Part
    27 R&O*) (establishing Sections 27.14(b)-(d)) (emphasis added).
    These renewal provisions were later adopted for licenses in the 700
    MHz Band. *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at
    503-04 ¶¶ 66, 68 & n.163 (adopting the renewal provisions in
    existing Part 27 and citing *Part 27 R&O*); *Lower 700 MHz Report
    and Order*, 17 FCC Rcd at 1076-77, 1077-78 ¶¶ 143, 146 (adopting the
    renewal provisions in existing Part 27). Although the Part 27 rule
    adopted only stated that these showings were required for renewal
    applicants involved in a comparative renewal proceeding, *see* 47
    C.F.R. § 27.14(c), we note that in its Part 27 notice of proposed
    rulemaking, the Commission stated that "we propose to consider *the
    amount and type of service* being provided by the licensee *in
    connection with its license renewal application*," Amendment of the
    Commission's Rules to Establish Part 27, the Wireless Communications
    Service ("WCS"), GN Docket No. 96-228, *Notice of Proposed
    Rulemaking*, 11 FCC Rcd 21713, 21728 ¶ 30 (1996) (emphasis added)
    (describing proposed factors that Commission would review during
    license renewal); *see also* *Part 27 R&O*, 12 FCC Rcd at 10840 ¶
    106 ("We will adopt our proposals regarding . . . the renewal
    expectancy."). Although the Commission did not codify any special
    informational showings from 700 MHz renewal applicants unless they
    are "involved in a comparative renewal proceeding" triggered by the
    filing of a competing application, 47 C.F.R. § 27.14(b), licensees'
    renewal applications are nevertheless subject to Commission's review
    and approval based on general public interest factors (*e.g.*,
    amount and type of service provided by the licensee during its
    license term).

[^185]: These criteria for renewal would apply to 700 MHz authorizations
    that have been assigned, transferred, partitioned or disaggregated
    during their license terms.

[^186]: *See supra* section III.C.1.

[^187]: We note that the license term for Multichannel Video
    Distribution & Data Service (MVDDS) is ten years, and that a renewal
    expectancy for MVDDS is based on a showing of substantial service at
    the end of five years into the license period and ten years into the
    license period. 47 C.F.R. § 101.1413(a),(b); *see* Amendment of
    Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO
    FSS Systems Co-Frequency with GSO and Terrestrial Systems in the
    KU-Band Frequency Range; Amendment of the Commission's Rules to
    Authorize Subsidiary Terrestrial Use of the 12.2-12.7 Ghz Band by
    Direct Broadcast Satellite Licensees and Their Affiliates;
    Applications of Broadwave Usa, PDC Broadband Corporation, and
    Satellite Receivers, Ltd. To Provide a Fixed Service in the
    12.2-12.7 GHz Band, ET Docket No. 98-206, *Memorandum Opinion and
    Order and Second Report and Order*, 17 FCC Rcd 9614, 9683-85 ¶¶
    175-77 (2002), *amended by*, Amendment of Parts 25 and 101 of the
    Commission\'s Rules Governing Multichannel Video Distribution and
    Data Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206,
    *Order*, 19 FCC Rcd 9727 (2004) (adopting rules).

[^188]: *See supra* para. 17 (explaining that the Commission's orders
    did not discuss the details of its renewal criteria).

[^189]: *See, e.g.,* *Lower 700 MHz Report and Order*, 17 FCC Rcd at
    1078 ¶ 146 (emphasis added; footnote omitted).

[^190]: Sections 27.14(a) and (b) require that licensees demonstrate
    "substantial" service both as a "construction requirement" "within
    the prescribed license term" and to obtain a renewal expectancy
    preference in a comparative hearing. 47 C.F.R. § 27.14(a), (b).
    Thus, the Commission's rules require substantial service by the end
    of a 700 MHz Band licensee's term, the same point at which renewal
    filings would be reviewed and potentially granted. *See* 47 C.F.R. §
    27.14(a).

[^191]: *See* 47 C.F.R. § 1.955(a)(3) (providing that wireless licenses
    automatically terminate if service is permanently discontinued and
    stating that "permanent discontinuance" is defined in either the
    specific authorization or the service rules governing that
    authorization); *but see* § 27.66 (requiring Part 27 licensees that
    discontinue service to notify the Commission in certain contexts,
    but not providing a definition of "permanent discontinuance").

[^192]: *See* 47 C.F.R. § 27.15(d)(1).

[^193]: The Communications Act provides the Commission with authority to
    assess monetary penalties for willful and knowing violations of its
    rules *See* 47 U.S.C. §§ 502, 503(b).

[^194]: *See* 47 C.F.R. § 27.14.

[^195]: For example, if the Commission dismisses or denies a renewal
    application, the spectrum could automatically revert to either the
    Commission (in the case of geographic-area licenses) to re-license
    using competitive bidding or to the geographic-overlay licensee (in
    the case of site-specific licenses subject to reversionary rights
    for geographic-overlay licensees) as part of its licensed service
    area. Moreover, the petitioner could be eligible to participate in
    any auction of the non-renewed license.

[^196]: As noted earlier, the Guard Band spectrum, and the rules
    applicable thereto, is not within the scope of this Notice.

[^197]: 47 C.F.R. § 27.13(b). Other Part 27 services generally have
    license terms which extend for terms not to exceed ten years. *See*
    *id.* § 27.13(a), (c)-(e). For AWS at 1710-1755 and 2110-2155 MHz,
    authorizations issued on or before December 31, 2009, have a term of
    fifteen years, and other authorizations in that band will have a ten
    year license term. *Id*. at § 27.13(g).

[^198]: After the current license term was adopted, the Commission was
    directed not to auction certain portions of the spectrum in the 700
    MHz Band; *see supra* para. 8 (discussing the Auction Reform Act's
    direction that the Commission not commence or conduct auctions for
    certain Upper and Lower 700 MHz band licenses). However, certain
    other licenses in the Lower 700 MHz Band were auctioned pursuant to
    the Auction Reform Act. *Id.*

[^199]: The DTV Act now mandates that the Commission conduct an auction
    of this spectrum. *See* DTV Act § 3003(a)(2).

[^200]: The DTV Act establishes a firm deadline of February 17, 2009,
    for the DTV transition, with the auction of the spectrum to commence
    no later than January 28, 2008. As a result, the statutory provision
    that allowed the transition to be extended in certain circumstances,
    *see* 47 U.S.C. § 309(j)(14)(B) (2005), and thus provided an
    opportunity for the continued presence of TV broadcasters in the
    band, has been eliminated.

[^201]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 504 ¶
    67 (finding that an average of eight years was a reasonable time to
    comply with the performance requirements, and that the license term
    should extend eight years beyond the then target date of 2006 for
    the DTV transition); *see also supra* para. 18 (discussing license
    term).

[^202]: *See, e.g., Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    504 ¶ 67.

[^203]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1077 ¶ 145.

[^204]: These include initial authorizations for the 2305-2320 MHz and
    2345-2360 MHz bands, the 1390-1392 MHz bands, the paired 1392-1395
    and 1432-1435 MHz bands, the 1670-1675 MHz band, and the AWS
    authorizations in the 1710-1755 and 2110-2155 MHz bands that are
    issued after December 31, 2009. *See* 47 C.F.R. §§
    27.13(a),(c)-(e),(g). The Commission also has adopted a ten year
    license term for other services. *See, e.g.*, Wireless Operations in
    the 3650-3700 MHz Band, ET Docket No. 04-151, Rules for Wireless
    Broadband Services in the 3650-3700 MHz Band, WT Docket No. 05-96,
    Additional Spectrum for Unlicensed Devices Below 900 MHz and in the
    3 GHz Band, ET Docket No. 02-380, Amendment of the Commission's
    Rules with Regard to the 3650-3700 MHz Government Transfer Band, ET
    Docket No. 98-237, *Report and Order and Memorandum Opinion and
    Order*, 20 FCC Rcd 6502, 6516 ¶ 39 (2005) (stating that adoption of
    ten year license term in that proceeding is consistent with license
    terms adopted for other services) (modified by Erratum, DA 05-1186
    (rel. April 28, 2005)).

[^205]: For example, the Commission adopted a 15 year license term for
    AWS spectrum in the 1710-1755 and 2110-2155 MHz bands, but only for
    initial licenses issued on or before December 31, 2009. *See* 47
    C.F.R. § 27.13(g). The Commission stated that the circumstances
    surrounding the future development and deployment of service in
    those bands warranted a license term longer than ten years in order
    to encourage the investment necessary for the bands' development.
    *See AWS-1 Report and Order*, 18 FCC Rcd at 25190 ¶ 70 & n.182.

[^206]: *See supra* section III.C.

[^207]: 47 C.F.R. § 27.14(a).

[^208]: *See* 47 C.F.R. § 27.10(a).

[^209]: *See* 47 C.F.R. § 27.10(d).

[^210]: *See* 47 C.F.R. § 27.13(b).

[^211]: *See, e.g.,* 47 U.S.C. § 307(c)(1) (license for operation of a
    broadcasting station shall be for a term not to exceed 8 years).

[^212]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 521 ¶
    109. The 1 kW ERP power limit applies to commercial, Guard Band and
    Public Safety base stations operating in the Upper 700 MHz Band.
    However, any discussion of the power limit for the Guard Band and
    Public Safety spectrum is beyond the scope of this Notice.

[^213]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1062-65 ¶¶
    99-107; 47 C.F.R. § 27.50(c).

[^214]: For example to prevent commercial stations from causing
    interference to Public Safety operations, commercial base and mobile
    stations are required to meet strict out-of-band emission ("OOBE")
    limits with respect to the Public Safety bands. *See Upper 700 MHz
    First Report and Order*, 15 FCC Rcd at 518-20 ¶¶ 103-107. To prevent
    commercial stations from causing overload interference to Public
    Safety operations, guard bands were established between the
    commercial blocks and the Public Safety bands. *Id.* at 478 ¶¶ 2, 3.

[^215]: We note that maximum power applies per RF emission, not per
    polarization; thus, multiple antenna elements radiating the same
    radio wave (*e.g.*, a power divider feeding multiple polarizations)
    would be considered a single RF emission. Therefore, if, for
    example, a Lower 700 MHz licensee employs a circularly polarized
    transmission, the power of the transmission would be limited to its
    combined horizontal and vertical polarizations, up to a total of 50
    kW ERP (*i.e*., the transmission would be limited to no greater than
    25 kW ERP in each of the horizontal and vertical planes).

[^216]: The Commission concluded that mobiles would be protected from
    interference from adjacent band base stations operating at power
    levels greater than 1 kW ERP if such base stations produced the same
    PFD on the ground near the base station that they would produce if
    they operated at power levels of 1 kW ERP or less. *See Lower 700
    MHz Report and Order*, 17 FCC Rcd at 1064 ¶ 104. The Commission
    decided that that power flux density would be the PFD that would be
    generated by a base station operating at 1 kW ERP and employing a
    half-wave dipole antenna located 75 meters above ground; the PFD
    limit that the Commission adopted was 3 milliwatts/m^2^. *Id*. at
    1121 app. D ¶ 2. As to the protection of adjacent band base stations
    from interference from high-power base transmissions, the Commission
    noted that in order for high-powered base stations to meet the
    required PFD limit, such stations would have to employ antennas that
    were: 1) located very high above ground; and 2) able to greatly
    attenuate the station's signal in the area near the antenna. The
    Commission further concluded that in using such antennas,
    high-powered base stations would also be able to provide appropriate
    protection to nearby adjacent band base stations. The Commission
    reached this conclusion based on the assumption that the receive
    antenna of an adjacent band base station would, if part of a
    cellular network, likely operate at a relatively low height, and
    that the height differential that would then exist between the
    high-powered base station antenna and the adjacent band base station
    receive antenna would enable the signal to be greatly attenuated at
    the receive antenna. *Id.* at 1121 app. D.

[^217]: In establishing Upper 700 MHz Band rules, the Commission took
    steps to ensure that Public Safety operations would be protected
    from interference. Specifically, the Commission required base
    station transmitters operating on Blocks C and D to meet a 76 + 10
    log P OOBE limit and required C and D block mobile transmitters to
    meet a 65 + 10 log P limit, for all emissions into the 764-776 and
    794-806 MHz Public Safety bands. *Upper 700 MHz First Report and
    Order*, 15 FCC Rcd at 519-20 ¶¶ 105, 106. These limits are
    considerably stronger than the 43 + 10 log P OOBE limit generally
    applied to stations operating in the land mobile services. The
    Commission also placed one and two megahertz guard bands between the
    C and D blocks and the Public Safety bands in order to reduce the
    likelihood for overload interference into Public Safety receivers.

[^218]: As we have discussed, *see supra* note 216, the protection of
    commercial base stations from high-powered adjacent band
    transmissions is achieved through, among other things, the
    significant height differential that is likely to exist between
    high-powered transmitting antennas and commercial base station
    receive antennas. However, because Public Safety and Guard Band base
    station antennas may not operate at the same low heights as
    commercial base station antennas, Public Safety and Guard Band base
    stations could be susceptible to interference from adjacent band,
    high-powered base stations. Thus, more stringent technical
    requirements would appear to be needed to protect such stations.

[^219]: *See, e.g.,* Improving Public Safety Communications in the 800
    MHz Band, WT Docket 02-55, *Report and Order, Fifth Report and
    Order, Fourth Memorandum Opinion and Order, and Order,* 19 FCC Rcd
    14969 (2004) (amended by Erratum, 19 FCC Rcd 19651 (2004), and
    Erratum, 19 FCC Rcd 21818 (2004)) (*800 MHz Report and Order*).

[^220]: Base station transmissions are currently permitted in both the
    lower and upper C and D blocks.

[^221]: *See Rural Report and Order*, 19 FCC Rcd at 19131-32 ¶ 95,
    19133-34 ¶ 100 (adopting 3280 watt EIRP power limits for base
    station operating in the PCS and AWS bands).

[^222]: In the *Lower 700 MHz Report and Order*, the Commission required
    licensees intending to operate base or fixed stations in excess of 1
    kW ERP to file notifications with the Commission and provide
    notifications to all Part 27 licensees authorized on adjacent blocks
    in their area of operation. *See Lower 700 MHz Report and Order*, 17
    FCC Rcd at 1066 ¶ 110; 47 C.F.R. § 27.50(c)(5).

[^223]: *See supra* para. 93.

[^224]: *See* 47 U.S.C. § 316.

[^225]: *See* *supra* para. 94.

[^226]: *See* 47 C.F.R. § 20.18.

[^227]: *See* 47 C.F.R. § 20.19.

[^228]: *See* Revision of the Commission's Rules to Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems; Phase II Compliance
    Deadlines for Non-Nationwide CMRS Carriers, CC Docket No. 94-102,
    *Order to Stay*, 17 FCC Rcd 14841, 14842 ¶ 4 (2002). *See also*
    Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems; E911 Phase II Compliance
    Deadlines for Tier III Carriers, *Order*, 20 FCC Rcd 7709, 7709 ¶ 1
    (2005) (reaffirming the Commission's commitment to ensuring that the
    Nation's wireless telephone users have timely access to emergency
    services using E911 technology).

[^229]: *See E911 Scope Order*, 18 FCC Rcd at 25341 ¶ 1.

[^230]: *See E911 Scope NPRM*, 17 FCC Rcd at 25577 ¶ 1.

[^231]: *See Hearing Aid Compatibility Report and Order*, 18 FCC Rcd
    at 16755 ¶ 4.

[^232]: *See E911 Scope Order*, 18 FCC Rcd at 25346 ¶ 15.

[^233]: *Id.* at 25347 ¶ 18. The Commission also may use other factors
    in making its determination. *Id.* at 25347 ¶ 19.

[^234]: Section 20.18(a) states that the scope of 911 requirements "are
    only applicable to Broadband PCS Services, Cellular Radio Telephone
    Service, Geographic Area Specialized Mobile Radio Services,
    Incumbent Wide Area SMR licensees in the 800 and 900 MHz bands and
    those entities that offer voice service to customers by purchasing
    airtime or capacity at wholesale rates from these licensees,
    collectively CMRS providers." 47 C.F.R. § 20.18(a). This rule
    further provides that service providers "in these enumerated
    services" are subject to the 911 requirements solely to the extent
    that they offer real-time, two-way, switched voice service that is
    interconnected with the public switched network and utilizes an
    in-network switching facility which enables the provider to reuse
    frequencies and accomplish seamless hand-off of subscriber calls.
    *See id*. Section 20.19(a) states that the scope of the hearing
    aid-compatible handset requirements extends "to providers of
    Broadband Personal Communications Services (part 24, subpart E of
    this chapter), Cellular Radio Telephone Service (part 22, subpart H
    of this chapter), and Specialized Mobile Radio Services in the 800
    MHz and 900 MHz bands (included in part 90, subpart S of this
    chapter) if such providers offer real-time, two-way switched voice
    or data service that is interconnected with the public switched
    network and utilizes an in-network switching facility that enables
    the provider to reuse frequencies and accomplish seamless hand-offs
    of subscriber calls. This section also applies to the manufacturers
    of the wireless phones used in delivery of these services."

[^235]: *See supra* note 82.

[^236]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of
    Title 44, United States Code. Consolidated Appropriations Act 2000,
    Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.
    213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47
    U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B).

[^237]: *Id*.

[^238]: 47 C.F.R. §§ 1.200 *et. seq.*

[^239]: *See* 47 C.F.R. § 1.1206(b)(2).

[^240]: 47 C.F.R. § 1.1206(b).

[^241]: 47 C.F.R. §§ 1.415, 1.419.

[^242]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 FR 24121 (1998).

[^243]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^244]: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT
    Docket No. 06-150, *Notice of Proposed Rulemaking*; Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, *Fourth Further
    Notice of Proposed Rulemaking*; Section 68.4(a) of the Commission's
    Rules Governing Hearing Aid-Compatible Telephones, WT Docket No.
    01-309, *Second Further Notice of Proposed Rulemaking*; FCC 06-114,
    (rel. Aug. 10, 2006) (*Notice*).

[^245]: *See* 5 U.S.C. § 603(a).

[^246]: *Id.*

[^247]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. 632) and Section 3507 and 3512 of
    Title 44, United States Code. Consolidated Appropriations Act 2000,
    Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.
    213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47
    U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B).

[^248]: 5 U.S.C. § 604(a)(3).

[^249]: 5 U.S.C. § 601(6).

[^250]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), 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."

[^251]: 15 U.S.C. § 632.

[^252]: Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service (WCS), *Report and Order*, 12 FCC
    Rcd 10785, 10879 ¶ 194 (1997).

[^253]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^254]: *See* Service Rules for the 746-764 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, *Second Report and Order*, 15 FCC
    Rcd 5299 (2000).

[^255]: *Id*. at 5343 ¶ 108.

[^256]: *Id*.

[^257]: *Id*. At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz
    bands, the Commission is exempt from 15 U.S.C. § 632, which requires
    Federal agencies to obtain Small Business Administration approval
    before adopting small business size standards).

[^258]: *See* "700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced," *Public Notice*, 15 FCC Rcd 18026 (2000).

[^259]: *See* "700 MHz Guard Bands Auctions Closes: Winning Bidders
    Announced," *Public Notice*, 16 FCC Rcd 4590 (WTB 2001).

[^260]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *Second Memorandum
    Opinion and Order*, 16 FCC Rcd 1239 (2001).

[^261]: *See* "Auction of Licenses for 747-762 and 777-792 MHz Bands
    (Auction No. 31) Is Rescheduled," *Public Notice*, 16 FCC Rcd 13079
    (WTB 2003).

[^262]: *See* Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), *Report and Order*, 17
    FCC Rcd 1022 (2002).

[^263]: *Id.* at 1087-88 ¶ 172.

[^264]: *Id.*

[^265]: *Id.* at 1088 ¶ 173.

[^266]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999.

[^267]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 17
    FCC Rcd 17272 (WTB 2002).

[^268]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 18
    FCC Rcd 11873 (WTB 2003).

[^269]: *Id*.

[^270]: *See* Amendments to Parts 1, 2, 27 and 90 of the Commission's
    Rules to License Services in the 216-220 MHz, 1390-1395 MHz,
    1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, AND
    2385-2390 MHz Government Transfer Bands, 17 FCC Rcd 9980 (2002)
    *(Government Transfer Bands Service Rules Report and Order*).

[^271]: *See Service Rules Notice,* 17 FCC Rcd at 2550-51 ¶¶ 144-146. To
    be consistent with the size standard of "very small business"
    proposed for the 1427-1432 MHz band for those entities with average
    gross revenues for the three preceding years not exceeding \$3
    million, the *Service Rules Notice* proposed to use the terms
    "entrepreneur" and "small business" to define entities with average
    gross revenues for the three preceding years not exceeding \$40
    million and \$15 million, respectively. Because the Commission is
    not adopting small business size standards for the 1427-1432 MHz
    band, it instead uses the terms "small business" and "very small
    business" to define entities with average gross revenues for the
    three preceding years not exceeding \$40 million and \$15 million,
    respectively.

[^272]: Such bidding credits are codified for the unpaired 1390-1392
    MHz, paired 1392-1395 MHz, and the paired 1432-1435 MHz bands in 47
    C.F.R. § 27.807. Such bidding credits are codified for the unpaired
    1670-1675 MHz band in 47 C.F.R. § 27.906.

[^273]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on its auction experience. *Part 1 Third Report and
    Order*, 13 FCC Rcd at 403-04 ¶ 47. *See also* 47 C.F.R. §
    1.2110(f)(2).

[^274]: *See* Service *Rules Notice,* 17 FCC Rcd at 2550-51 ¶ 145.

[^275]: *See, e.g.,* Revision of Part 22 and Part 90 of the Commission's
    Rules to Facilitate Future Development of Paging Systems;
    Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding, WT Docket No. 96-18, PR Docket No. 93-253,
    *Memorandum Opinion and Order on Reconsideration and Third Report
    and Order*, 14 FCC Rcd 10030, 10091 ¶ 112 (1999).

[^276]: 47 U.S.C. § 309(j)(3)(B), (4)(C)-(D). The Commission will also
    not adopt special preferences for entities owned by minorities or
    women, and rural telephone companies. The Commission did not receive
    any comments on this issue, and it does not have an adequate record
    to support such special provisions under the current standards of
    judicial review. *See* *Adarand Constructors v. Peña*, 515 U.S. 200
    (1995) (requiring a strict scrutiny standard of review for
    government mandated race-conscious measures); *United States v.
    Virginia*, 518 U.S. 515 (1996) (applying an intermediate standard of
    review to a state program based on gender classification).

[^277]: Service Rules for Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC Rcd
    25162 (2003) (*AWS-1 Report and Order*).

[^278]: 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. 94-131 and PP Docket No. 93-253, *Report and Order*,
    10 FCC Rcd 9589, 9593 ¶ 7 (1995) (*MDS Auction R&O)*.

[^279]: *See* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *Report and Order and Further
    Notice of Proposed Rulemaking*, FCC 03-145 (rel. July 29, 2004)
    (*BRS/EBS Report and Order*). As the Commission noted in the
    *Further Notice*, there are unique policies associated with ITFS
    licensees' educational purposes, and the services have already
    developed their own approach to excess capacity leasing. *See
    Further Notice* at ¶¶ 307-08.

[^280]: 47 C.F.R. § 21.961(b)(1).

[^281]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Bureau, from Gary Jackson, Assistant Administrator
    for Size Standards, Small Business Administration, dated March 20,
    2003 (noting approval of \$40 million size standard for MDS
    auction).

[^282]: Basic Trading Areas (BTAs) were designed by Rand McNally and are
    the geographic areas by which MDS was auctioned and authorized. *See
    MDS Auction R&O*, 10 FCC Rcd at 9608 ¶ 34.

[^283]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standard for "other telecommunications" (annual
    receipts of \$12.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517910.

[^284]: 13 C.F.R. § 121.201, NAICS code 517510.

[^285]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^286]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^287]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517212.

[^288]: *Id*.

[^289]: 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).

[^290]: *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."

[^291]: 13 C.F.R. § 121.201, NAICS code 517212.

[^292]: 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).

[^293]: *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."

[^294]: 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, *Third Report and Order*, 12 FCC Rcd 10943, 11068‑70 ¶¶
    291‑295 (1997).

[^295]: *Id.* at 11068 ¶ 291.

[^296]: *Id.*

[^297]: *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    January 6, 1998.

[^298]: *See generally* "220 MHz Service Auction Closes," *Public
    Notice*, 14 FCC Rcd 605 (WTB 1998).

[^299]: *See* "FCC Announces It is Prepared to Grant 654 Phase II 220
    MHz Licenses After Final Payment is Made," *Public Notice*, 14 FCC
    Rcd 1085 (WTB 1999).

[^300]: *See* "Phase II 220 MHz Service Spectrum Auction Closes,"
    *Public Notice*, 14 FCC Rcd 11218 (WTB 1999).

[^301]: *See* "Multi-Radio Service Auction Closes," *Public Notice*, 17
    FCC Rcd 1446 (WTB 2002).

[^302]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems, *Second Report and
    Order*, 12 FCC Rcd 2732, 2811-2812 ¶¶ 178-181 (*Paging Second Report
    and Order*); *see also* Revision of Part 22 and Part 90 of the
    Commission's Rules to Facilitate Future Development of Paging
    Systems, *Memorandum Opinion and Order on Reconsideration*, 14 FCC
    Rcd 10030, 10085-10088 ¶¶ 98-107 (1999).

[^303]: *Paging Second Report and Order*, 12 FCC Rcd at 2811 ¶ 179.

[^304]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, from Aida
    Alvarez, Administrator, Small Business Administration, dated
    December 2, 1998.

[^305]: *See* "929 and 931 MHz Paging Auction Closes," *Public Notice*,
    15 FCC Rcd 4858 (WTB 2000).

[^306]: *See id*.

[^307]: *See* "Lower and Upper Paging Band Auction Closes," *Public
    Notice*, 16 FCC Rcd 21821 (WTB 2002).

[^308]: *See* "Lower and Upper Paging Bands Auction Closes," *Public
    Notice*, 18 FCC Rcd 11154 (WTB 2003).

[^309]: *See Trends in Telephone Service,* Industry Analysis Division,
    Wireline Competition Bureau, Table 5.3 (Number of Telecommunications
    Service Providers by Size of Business) (June 2005).

[^310]: 13 C.F.R. § 121.201, NAICS code 517211.

[^311]: *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*, 11 FCC Rcd 7824, 7850-7852
    ¶¶ 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^312]: *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*, 11 FCC Rcd 7824, 7852
    ¶ 60.

[^313]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^314]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (rel. January 14, 1997).

[^315]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^316]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," *Public Notice,* 16 FCC Rcd 2339 (2001).

[^317]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding Narrowband PCS, *Third Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking*, 10 FCC Rcd 175,
    196 ¶ 46 (1994).

[^318]: *See* "Announcing the High Bidders in the Auction of ten
    Nationwide Narrowband PCS Licenses, Winning Bids Total
    \$617,006,674," *Public Notice*, PNWL 94-004 (rel. Aug. 2, 1994);
    "Announcing the High Bidders in the Auction of 30 Regional
    Narrowband PCS Licenses; Winning Bids Total \$490,901,787," *Public
    Notice*, PNWL 94-27 (rel. Nov. 9, 1994).

[^319]: Amendment of the Commission's Rules to Establish New Personal
    Communications Services, Narrowband PCS, *Second Report and Order
    and Second Further Notice of Proposed Rule Making*, 15 FCC Rcd
    10456, 10476 ¶ 40 (2000).

[^320]: *Id*.

[^321]: *Id*.

[^322]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^323]: *See* "Narrowband PCS Auction Closes," *Public Notice*, 16 FCC
    Rcd 18663 (WTB 2001).

[^324]: 47 C.F.R. § 90.814(b)(1).

[^325]: *Id*.

[^326]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999. We note that, although a request was also sent to
    the SBA requesting approval for the small business size standard for
    800 MHz, approval is still pending.

[^327]: *See* "Correction to Public Notice DA 96-586 'FCC Announces
    Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
    SMR in Major Trading Areas,'" *Public Notice*, 18 FCC Rcd 18367 (WTB
    1996).

[^328]: *See* "Multi-Radio Service Auction Closes," *Public Notice*, 17
    FCC Rcd 1446 (WTB 2002).

[^329]: *See* 13 C.F.R. § 121.201, NAICS code 517212.

[^330]: *See generally* 13 C.F.R. § 121.201.

[^331]: 47 C.F.R. §§ 101 *et seq.* (formerly, part 21 of the
    Commission's Rules).

[^332]: Persons eligible under parts 80 and 90 of the Commission's rules
    can use Private Operational-Fixed Microwave services. *See*
    *generally* 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.

[^333]: Auxiliary Microwave Service is governed by part 74 of Title 47
    of the Commission's Rules. *See* 47 C.F.R. Part 74. 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.

[^334]: 13 C.F.R. § 121.201, NAICS code 517212.

[^335]: *See* Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Band, *Report and Order*, 12 FCC Rcd
    18600 (1997).

[^336]: *Id*.

[^337]: *See* Letter to Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Hector Barreto, Administrator, Small
    Business Administration, dated January 18, 2002.

[^338]: *See* Rulemaking to Amend Parts 1, 2, 21, 25, of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    Reallocate the 29.5-30.5 Frequency Band, to Establish Rules and
    Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, *Second Report and Order*, *Order on
    Reconsideration, and Fifth Notice of Proposed Rule Making,* 12 FCC
    Rcd 12545, 12689-90 ¶ 348 (1997).

[^339]: *Id*.

[^340]: *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    January 6, 1998.

[^341]: *See* "Interactive Video and Data Service (IVDS) Applications
    Accepted for Filing," *Public Notice*, 9 FCC Rcd 6227 (1994).

[^342]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Fourth* *Report* *and* [*Order*, 9 FCC Rcd
    2330
    (1994](http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DocName=59FR24947&FindType=Y&ReferencePositionType=S&ReferencePosition=24947)).

[^343]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Report and Order
    and Memorandum Opinion and Order*, 15 FCC Rcd 1497 (1999).

[^344]: *Id*.

[^345]: *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    January 6, 1998.

[^346]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems*, Second Report
    and Order*, 13 FCC Rcd 15182, 15192 ¶ 20 (1998); *see also* 47
    C.F.R. § 90.1103

[^347]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Second Report
    and Order*, 13 FCC Rcd at 15192 ¶ 20; *see also* 47 C.F.R. §
    90.1103.

[^348]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    February 22, 1999.

[^349]: 13 C.F.R. § 121.201, NAICS code 517212.

[^350]: *Id.*

[^351]: *Id*.

[^352]: *See* Amendment of the Commission's Rules Regarding Multiple
    Address Systems, *Report and Order*, 15 FCC Rcd 11956, 12008 ¶ 123
    (2000).

[^353]: *Id*.

[^354]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    June 4, 1999.

[^355]: *See* "Multiple Address Systems Spectrum Auction Closes,"
    *Public Notice*, 16 FCC Rcd 21011 (2001).

[^356]: *See* 13 C.F.R. § 121.201, NAICS code 517212.

[^357]: *See id.*

[^358]: Teligent acquired the Digital Electronic Message Service (DEMS)
    licenses of FirstMark, the only licensee other than TRW in the
    24 GHz band whose license has been modified to require relocation to
    the 24 GHz band.

[^359]: Amendments to Parts 1, 2, 87 and 101 of the Commission's Rules
    To License Fixed Services at 24 GHz, *Report and Order*, 15 FCC Rcd
    16934, 16967 ¶ 77 (2000) (*24 GHz Report and Order*); *see also* 47
    C.F.R. § 101.538(a)(2).

[^360]: *24 GHz Report and Order*, 15 FCC Rcd at 16967 ¶ 77; *see also*
    47 C.F.R. § 101.538(a)(1).

[^361]: *See* Letter to Margaret W. Wiener, Deputy Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, from Gary M. Jackson, Assistant
    Administrator, Small Business Administration, dated July 28, 2000.

[^362]: U.S. Census Bureau, 2002 NAICS Definitions, "517510 Cable and
    Other Program Distribution";
    <http://www.census.gov/epcd/naics02/def/NDEF517.HTM>.

[^363]: 13 C.F.R. § 121.201, NAICS code 517510.

[^364]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^365]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^366]: 47 C.F.R. § 76.901(e). The Commission determined that this size
    standard equates approximately to a size standard of \$100 million
    or less in annual revenues. *Implementation of Sections of the 1992
    Cable Act: Rate Regulation,* Sixth Report and Order and Eleventh
    Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).

[^367]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^368]: 47 C.F.R. § 76.901(c).

[^369]: Warren Communications News, *Television & Cable Factbook 2006*,
    "U.S. Cable Systems by Subscriber Size," page F-2 (data current as
    of Oct. 2005). The data do not include 718 systems for which
    classifying data were not available.

[^370]: 47 U.S.C. § 543(m)(2); *see* 47 C.F.R. § 76.901(f) & nn. 1-3.

[^371]: 47 C.F.R. § 76.901(f); *see* Public Notice*, FCC Announces New
    Subscriber Count for the Definition of Small Cable Operator*, DA
    01‑158 (Cable Services Bureau, Jan. 24, 2001).

[^372]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^373]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority's
    finding that the operator does not qualify as a small cable operator
    pursuant to § 76.901(f) of the Commission's rules. *See* 47 C.F.R. §
    76.909(b).

[^374]: "Multichannel Video Distribution and Data Service Auction
    Closes," *Public Notice*, DA 04-215 (Feb. 2, 2004).

[^375]: 13 CFR § 121.201, NAICS code 517212 (2002).

[^376]: Amendment of the Commission's Rules Concerning Maritime
    Communications, *Third Report and Order and Memorandum Opinion and
    Order*, 13 FCC Rcd 19853 (1998).

[^377]: 47 C.F.R. Part 90.

[^378]: The Citizens Band Radio Service, General Mobile Radio Service,
    Radio Control Radio Service, Family Radio Service, Wireless Medical
    Telemetry Service, Medical Implant Communications Service, Low Power
    Radio Service, and Multi-Use Radio Service are governed by Subpart
    D, Subpart A, Subpart C, Subpart B, Subpart H, Subpart I, Subpart G,
    and Subpart J, respectively, of Part 95 of the Commission's rules.
    *See generally* [47 C.F.R. Part
    95.](http://web2.westlaw.com/Find/Default.wl?DB=1000547&DocName=47CFRS95.401&FindType=L&AP=&RS=WLW2.86&VR=2.0&SV=Split&MT=Westlaw&FN=_top)

[^379]: 13 C.F.R. § 121.201, NAICS Code 517212.

[^380]: 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. §§ 90.15-90.27. The police service includes
    approximately 27,000 licensees that serve state, county, and
    municipal enforcement through telephony (voice), telegraphy (code)
    and teletype and facsimile (printed material). The fire radio
    service includes approximately 23,000 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 approximately 41,000 licensees that are state, county,
    or municipal entities that use the radio for official purposes not
    covered by other public safety services. There are approximately
    7,000 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 approximately 9,000 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
    approximately 1,000 licensees in the Emergency Medical Radio Service
    (EMRS) use the 39 channels allocated to this service for emergency
    medical service communications related to the delivery of emergency
    medical treatment. 47 C.F.R. §§ 90.15-90.27. The approximately
    20,000 licensees in the special emergency service include medical
    services, rescue organizations, veterinarians, people with
    disabilities, disaster relief organizations, school buses, beach
    patrols, establishments in isolated areas, communications standby
    facilities, and emergency repair of public communications
    facilities. 47 C.F.R. §§ 90.33-90.55.

[^381]: 47 C.F.R. § 1.1162.

[^382]: 5 U.S.C. § 601(5).

[^383]: 5 U.S.C. §§ 603(c)(1)-(c)(4).

[^384]: *See supra* section D.