**Before the**

**[Federal Communications Commission]{.smallcaps}**

**Washington, D.C.**

In the Matter of

Amendment of Part 90 of the )

Commission\'s Rules To Provide )

for the Use of the 220-222 MHz Band ) PR Docket No. 89-552

by the Private Land Mobile )

Radio Service )

)

Implementation of Sections 3(n) and 332 )

of the Communications Act ) GN Docket No. 93-252

)

Regulatory Treatment of Mobile Services )

)

Implementation of Section 309(j) of the )

Communications Act --- Competitive ) PP Docket No. 93-253

Bidding )

**MEMORANDUM OPINION AND ORDER**

**ON RECONSIDERATION**

**Adopted:** May 14, 1998; **Released:** May 21, 1998

By the Commission: Commissioner Ness issuing a statement.

**[Table of Contents]{.smallcaps}**

Paragraph

I.INTRODUCTION; EXECUTIVE SUMMARY

II.BACKGROUND

A.220 MHz Second Report and Order

B.220 MHz Third Report and Order

III.DISCUSSION

A.220 MHz Third Report and Order Issues

1.Protection of Phase I Licensee Operations

a.Background

b.Adequacy of Current Protection Criteria

c.Analysis of Technical Arguments

(1)Estimation of Propagation Characteristics

(a)Performance of 220 MHz Signal

(b)SMR Comments and Vega Report

(c)TCG Report and PERS Comments

(2)Use of Single Sideband Technology

(3)Minimum Co-Channel Distance

(4)Provision of Greater Than 10 dB Protection

(5)Protection of Phase I Systems

2.Calculation of Service Contour

3.Emission Masks

4.Antenna Height Above Average Terrain vs. Antenna

Height Above Ground

5.Allowable Power Limit for Mobile Channels

6.Allowable Power Limit for Nationwide Licensees

7.Modification of Phase I Non-Nationwide Licenses

8.Substantial Service

9.Spectrum Efficiency Standard

10.Construction Requirements in Section 90.769 of Commission\'s Rules

11.Return of Pending Nationwide 220 MHz Service Applications

12.Acquisition of Multiple Nationwide Licenses

13.Installment Payments

14.Other Issues

B.220 MHz Second Report and Order Issues

1.Maximum Distance Relocation Limitations

2.Non-Relocation Modifications

3.Special Temporary Authority

4.Alternative Site Proposals

5.Other Waiver Issues

IV\. PROCEDURAL MATTERS

A. Regulatory Flexibility Act

B.Paperwork Reduction Act

C. Further Information

V.ORDERING CLAUSES

Appendix A--List of Parties Filing Petitions for Reconsideration or
Clarification and Comments Concerning Second Report and Order

Appendix B--List of Parties Filing Petitions, Comments, and Reply
Comments Concerning Third Report and Order

Appendix C--Supplemental Final Regulatory Flexibility Analysis

Appendix D--Revisions to Commission\'s Rules

**I. INTRODUCTION; EXECUTIVE SUMMARY**

In this Order we consider Petitions for Reconsideration or Clarification
of two Orders concerning the 220-222 MHz radio service (220 MHz
service). On January 26, 1996, the Commission adopted final rules in the
*220 MHz Second Report and Order*,[^1] which enabled 220 MHz licensees
to modify their licenses to relocate their authorized base stations
within Commission specified parameters. In the *220 MHz Third Report and
Order*,[^2] adopted on February 19, 1997, the Commission established
rules to govern the future operation and licensing of the 220 MHz
service.

The Commission has received five petitions for reconsideration or
clarification of the *220 MHz Second Report and Order* and one comment
filed in response to those petitions.[^3] In response to these
petitions, we reaffirm the decision in the *220 MHz Second Report and
Order*, with one clarification. We continue to believe that the
procedures the Commission has adopted provide existing 220 MHz licensees
flexibility to complete construction of their systems and provide
service without unreasonably impairing the opportunity of potential
competitors to obtain licenses in the 220 MHz service.

The petitions for reconsideration or clarification of the *220 MHz
Second Report and Order* address a range of issues. Based on our review
of these petitions, we are taking the following actions with regard to
these issues in this Order:

We deny petitions of AMTA and SMR requesting that we permit moves up to
a maximum distance of 25 kilometers (km) if the licensee is moving from
a location within a Designated Filing Area (DFA) to a location outside
that DFA. We also deny Incom\'s petition asking that we clarify our
position to indicate that a licensee whose initially authorized site is
located inside a DFA within 8 km of the perimeter and who seeks to
modify its authorization in order to move to a location outside the DFA
be permitted to move its site a maximum of 25 km.

We grant in part petitions of AMTA and SMR requesting that we accept
modifications of operating parameters other than relocation
modifications to the extent that we clarify that licensees who seek to
relocate may modify their antenna height above average terrain (HAAT).
Otherwise, we deny these petitions with respect to this issue.

We deny petitions of AMTA, Incom, PERS, and SMR requesting that we
reconsider or clarify that if a licensee had taken delivery of its base
station transceiver on or before January 26, 1996, and had filed an
application for Special Temporary Authority (STA) on or before January
26, 1996, the licensee need not have been granted an STA by January 26,
1996, in order to be allowed to seek permanent authorization at its STA
site.

We deny petitions of AMTA and Incom requesting that we clarify the *220
MHz Second Report and Order* to allow waiver requests to be accompanied
by an alternative site proposal.

We deny the petition filed by In Touch asking us to clarify that the
Commission will accept waiver requests other than the specific type of
waiver request discussed in the *220 MHz Second Report and Order*
because such clarification is unnecessary under the Commission\'s rules.

The Commission has also received 11 petitions for reconsideration or
clarification of the *220 MHz Third Report and Order*, seven comments
filed in response to those petitions, and seven reply comments.[^4] In
general, we affirm the rules for the 220 MHz service adopted in the *220
MHz Third Report and Order*, however, we adopt some changes and
clarifications in response to the petitions for reconsideration or
clarification. Specifically, we are taking the following action with
regard to issues raised in these petitions:

We deny the petitions of AMTA, INTEK, PCIA, and SMR that we modify the
Commission\'s rules to require the protection of the 28 dBu, rather than
the 38 dBu, service contour of Phase I licensees.[^5]

We deny the petitions of SEA, PCIA, and INTEK that we modify the
Commission\'s rules to calculate the service contour of 220 MHz Phase I
base stations based on the maximum allowable power and antenna height
for such stations.

We grant in part the petitions of AMTA, INTEK, PCIA, and SMR that Phase
I licensees be permitted to modify their authorizations to the extent
that Phase I licensees will be permitted to make modifications to their
authorizations which do not expand their 38 dBu service contour and also
will be permitted to convert their site-by-site licenses to a single
license. Otherwise, we deny these petitions with respect to this issue.

At the request of Comtech, we clarify the Commission\'s decision to
eliminate the emission mask requirement for a licensee\'s inner,
contiguous channels, by indicating that the Commission intended the
decision to apply to those inner, contiguous channels that a licensee
might derive from multiple authorizations.

We grant the petition of SEA that the antenna height limitation for
stations operating in the 220 MHz band be associated with the HAAT of
the station\'s transmitting antenna, rather than the antenna\'s height
above ground.

We deny the petitions of Comtech and Glenayre that we raise the power
limit for fixed stations operating on mobile channels from 50 watts
effective radiated power (ERP) to 500 watts ERP.

We dismiss on procedural grounds the petitions of Comtech and Glenayre
that we raise the power limit for the base stations of nationwide
licensees from 500 watts ERP to 1400 watts ERP.

We deny the request of Metricom that we specify the criteria used to
determine whether licensees have provided substantial service.

We remove the 220 MHz service spectrum efficiency standard, and thus
grant the petition of Comtech that we eliminate the efficiency standard
as applied to paging operations. Consequently, we deny the petitions of
Rush and Glenayre that we amend the 220 MHz service spectrum efficiency
standard.

We dismiss on procedural grounds the petitions of Rush and Metricom
that we revisit the construction requirements for Phase I licensees.

We dismiss on procedural grounds the petitions of Global and Comtech
that we revisit the requirement that nationwide, Phase I licensees
construct all five channels at a minimum number of base stations at
certain urban sites.

We dismiss on procedural grounds the petitions of Global, Comtech, and
Rush that we cease to require nationwide, Phase I licensees to obtain
specific licenses for each base station.

We grant the petitions of Comtech and Global seeking clarification of
Section 90.769 of the Commission\'s Rules, by clarifying that Section
90.769 applies only to Phase II nationwide licensees and not to Phase I
nationwide licensees.

We grant the petition of National requesting that we reconsider or
clarify language regarding the return of pending nationwide 220 MHz
applications, by clarifying that the language ordering the return of
pending nationwide applications does not apply to pending, commercial,
nationwide 220 MHz applications.

We dismiss as moot the petition of Comtech that the Commission amend
its rules to permit entities to obtain more than one Phase I
authorization in a geographic area.

Consistent with the conclusions reached in the *Part 1 Third Report and
Order*, we eliminate installment payment plans for small and very small
businesses participating in the 220 MHz Service auction, and increase
the level of bidding credits for such entities. We will also amend the
Commission\'s rules to permit auction winners to make their final
payments within ten (10) business days after the applicable deadline,
provided that they also pay a late fee of five (5) percent of the amount
due.

**II. BACKGROUND**

The Commission established the 220 MHz service in the *220 MHz Report
and Order* in April 1991.[^6] The Commission adopted service rules for
the assignment of 200 five kilohertz (kHz) channel pairs in the 220-222
MHz band to both Federal Government and private land mobile users. The
Commission authorized 60 of the 200 channel pairs for nationwide
licensing, with 10 of these designated for assignment to Federal
Government entities. The remaining 50 nationwide channel pairs were
reserved for non-Government users, with 20 channel pairs designated for
"commercial" use and 30 channel pairs designated for "non-commercial"
use.[^7] The 20 commercial channel pairs were divided into four
five-channel blocks and the 30 non-commercial channel pairs were divided
into two 10-channel and two five-channel blocks. The Commission
designated the remaining 140 channel pairs for non-nationwide use by
both Government and non-Government licensees. The Commission also
decided that all applications for 220 MHz channels would be granted on a
first-come, first-served basis and that mutually exclusive applications
would be assigned through random selection procedures.[^8]

The Commission began accepting applications for 220 MHz licenses on May
1, 1991, and on May 24, 1991, after receiving over 59,000 applications,
imposed a moratorium on the filing of all initial and modification
applications for the 220 MHz service.[^9] Since then, the Commission has
issued authorizations to approximately 3,800 licensees to operate
"non-nationwide" 220 MHz stations.[^10]

**A.220 MHz Second Report and Order**

Shortly after the Commission began processing 220 MHz applications, a
court case was brought challenging the Commission\'s 220 MHz licensing
procedures. This effectively placed all of the more than 3,000
authorizations the Commission granted in doubt for nearly a two-year
period, and the uncertainty with respect to the finality of the
Commission\'s grant of their licenses caused many licensees to refrain
from constructing their stations.[^11] Following the settlement of the
case in March 1994, the deadline for licensees to construct their
systems and place them in operation was extended on four separate
occasions to allow licensees sufficient time to construct their
systems.[^12] Because several years had passed since 220 MHz licensees
filed their applications for which licenses were granted, many licensees
found that, for various unforeseen reasons, they were unable to
construct at their authorized locations. In response, the Commission
issued the *Fourth Notice*, proposing a procedure to enable existing
licensees in the 220 MHz service to seek modification of their
authorizations to relocate their base stations.[^13]

Based on its review of the record following the release of the *Fourth
Notice,* on January 26, 1996, the Commission adopted and released the
*220 MHz Second Report and Order.* In that *Order*, the Commission
adopted a procedure that enabled 220 MHz licensees to modify their
licenses to relocate their authorized base stations to previously
unauthorized locations. Under this procedure, licensees with base
stations authorized inside any DFA[^14] were permitted to relocate their
base stations up to one-half the distance over 120 km toward any
authorized co-channel base station, to a maximum distance of 8 km.[^15]
Licensees with base stations authorized outside the boundaries of any
DFA were permitted to relocate their base stations up to one-half the
distance over 120 km toward any authorized co-channel base station, to a
maximum distance of 25 km, so long as they did not locate their base
station more than 8 km inside the boundaries of any DFA.[^16] A licensee
was permitted to relocate its base station less than 120 km from the
base station of a co-channel licensee or more than one-half the distance
over 120 km toward the base station of a co-channel licensee only with
the consent of that licensee.[^17]

The Commission also extended the February 2, 1996 construction deadline
to March 11, 1996 for all non-nationwide 220 MHz licensees that elected
to construct their base stations at their originally-authorized
locations, and to August 15, 1996 for all licensees granted authority to
modify their licenses to relocate their base stations.[^18] Licensees
seeking authority to modify their authorizations to relocate their base
stations were required to file, on or before March 11, 1996, a
modification application or statement of their intention to file an
application requesting such modification, and were required to file a
modification application on or before May 1, 1996.[^19]

**B.220 MHz Third Report and Order**

On July 28, 1995, the Commission adopted the *Third Notice,* which
proposed a new framework for the operation and licensing of the 220-222
MHz band.[^20] Based on its review of the comments in response to the
*Third Notice*, the Commission adopted the *220 MHz Third Report and
Order* on February 19, 1997. In the *220 MHz Third Report and Order*,
the Commission decided to return pending, mutually exclusive
applications for the four non-commercial, Phase I nationwide licenses
and adopt a new licensing procedure for the 30 channels associated with
these licenses. The Commission determined that the 30 channels would be
licensed on a nationwide basis to all applicants, whether used for
commercial services or for a licensee\'s private, internal use. The
channels will be assigned, in the form of three 10-channel
authorizations, through competitive bidding.

The Commission also decided to assign the non-nationwide licenses as
five blocks (composed of 10 channels in each block) in 175 geographic
areas defined as Economic Areas by the Bureau of Economic Analysis,
Department of Commerce ("EA licenses") and five blocks (composed of 15
channels in each block) in geographic areas defined by six "Regional
Economic Area Groupings" ("Regional licenses"). The Commission made
these channels available to all eligible applicants, and decided to
resolve mutually exclusive applications for these channels through
competitive bidding. The Commission provided a 10-year license term for
Phase II licensees, and required Phase II licensees to meet five- and
ten-year construction benchmarks.

The Commission permitted EA and Regional licensees to operate stations
anywhere within their geographic borders, provided that their
transmissions did not exceed a predicted field strength of 38 dBuV/m at
their border, and provided that they protect the base stations of Phase
I licensees in accordance with the existing co-channel separation
criteria for 220 MHz stations.

The Commission also decided to allow all Phase I and Phase II,
nationwide and non-nationwide 220 MHz licensees to operate fixed and
paging systems without the requirement that such use be on an ancillary
basis to land mobile operations. The Commission further determined that
it would be appropriate to permit Phase I and Phase II, nationwide and
non-nationwide 220 MHz licensees, to aggregate any of their contiguous 5
kHz channels and operate on channels wider than 5 kHz, so long as they
comply with a prescribed spectrum efficiency standard.

Finally, the Commission established rules and procedures governing the
auction of the Phase II 220 MHz Service licenses. Among other things,
the Commission established installment payment plans and bidding credits
for small and very small businesses designed to assist such entities in
overcoming economic barriers to their participation in the auction.

**III. DISCUSSION**

**A.220 MHz Third Report and Order Issues**

Because one of the issues raised in connection with our reconsideration
of the *220 MHz Second Report and Order* will be affected by our
resolution of an issue raised on reconsideration of the *220 MHz Third
Report and Order*, we will first consider the issues raised on
reconsideration of the *220 MHz Third Report and Order*.

**1.Protection of Phase I Licensee Operations**

**a.Background**

In the *220 MHz Third Report and Order*, the Commission decided that
Phase II EA and Regional licensees would be required to locate their
base stations at least 120 km from the base stations of co-channel Phase
I licensees, except that Phase II licensees would be permitted to locate
their base stations less than 120 km from the base stations of
co-channel Phase I licensees if they provide 10 dB protection to the
predicted 38 dBuV/m (dBu) service contour of the base stations of the
Phase I licensees.[^21] This rule was derived from the rule adopted in
the *220 MHz Report and Order*, which established a 120 km separation
between co-channel, Phase I base stations, with shorter separations
considered where licensees provide 10 dB protection to the predicted 38
dBu service contour[^22] of co-channel base stations.[^23]

Six parties (AMTA, SMR, INTEK, PERS, PCIA, and SEA) seek reconsideration
of this decision.[^24] AMTA, SMR, INTEK, and PERS argue that Phase II
licensees should be required, in locating their base stations, to afford
greater protection to co-channel Phase I licensees by providing 10 dB
protection to the predicted *28* dBu service contour of all co-channel
Phase I base stations,[^25] and SMR contends that the distance
separation provided by Phase II licensees to co-channel Phase I
licensees should be 170 km, rather than 120 km, except in instances
where "unique terrain or other features justify a lesser distance
separation."[^26] PCIA and SEA do not oppose continued protection of the
38 dBu service contour, but assert that we should afford greater than 10
dB protection to that contour.

**b.Adequacy of Current Protection Criteria**

AMTA, in expressing views that are generally representative of those of
other petitioners, argues that the decision made by the Commission in
the *220 MHz Third Report and Order* to provide 10 dB protection to the
38 dBu contour of Phase I stations does "not provide adequate protection
between Phase I and Phase II licensees."[^27] AMTA contends that in
their original comments on this issue,[^28] all interested parties
indicated that the 28 dBu contour was the appropriate protected service
contour[^29] for the 220 MHz service, claiming that "220 MHz systems
were essentially outperforming the Commission\'s original coverage
estimation by a significant degree in the real world."[^30] AMTA
indicates in its petition that 220 MHz customers "are currently
operating throughout the 28 dBu reliable service areas,"[^31] and that
failure to adopt co-channel protection criteria based on a 28 dBu
contour "denies Phase I 220 MHz licensees a quality of service
comparable to that of competitive wireless systems."[^32]

As a general matter, we would be concerned about taking any action that
would have a negative impact on existing customers who are receiving
service from a Commission licensee. We conclude, however, based upon our
detailed analysis in the following sections, that retention of the
existing 38 dBu protected contour will not adversely affect operations
in the 220 MHz service. We base this conclusion on the lack of
meaningful, valid evidence or justification in support of petitioners\'
claim that the 28 dBu contour is the field strength contour that should
be protected in the 220 MHz service.

The matter of whether we should modify the Commission\'s protection
criteria essentially turns on two issues. The first is whether we should
protect the 28 dBu contour instead of the 38 dBu contour because the
signal at the 28 dBu contour produces a quality of service deserving of
protection. There are various references by petitioners, and by
commenters in the previous proceeding, to the effect that "reliable
service" is being provided at the 28 dBu contour.[^33] Yet, beyond this
limited, and basically anecdotal information, petitioners provide no
other evidence to justify this contention. The second issue is whether,
as some petitioners appear to suggest, 220 MHz signals invariably
propagate farther than predicted by the Commission\'s Section 73.699
curves. However, petitioners provide no data to adequately support such
a claim.

Petitioners also argue that because the Grade B contour for high VHF
television stations is 8 dB lower than the Grade B contour for UHF
television stations, the protected service contour for the 220 MHz
service should be 12 dB lower than the 40 dBu protected service contour
used for the 800 MHz and 900 MHz land mobile bands. However, as we
discuss in greater detail in the following sections, operating frequency
is not the sole criteria used to determine service contours, and the
discussion by commenters themselves of the use of a 32 dBu contour in
the cellular service is evidence of this fact. Additionally, the
mathematical relationship between the Grade B contours of the UHF and
high VHF television bands and the corresponding mathematical
relationship between the protected service contour for the 220 MHz band
and the 800 MHz and 900 MHz land mobile bands were known to potential
220 MHz licensees and manufacturers alike when the 220 MHz service rules
were adopted in 1991. Yet, none of these parties sought reconsideration
of the Commission\'s decision to employ a 38 dBu service criteria at
that time.[^34]

While we endeavor to provide appropriate protection for all licensees in
all services licensed by the Commission, it is a fact that no protection
criteria can guarantee that interference will not occur. In fact, in
developing protection criteria between Phase II licensees the Commission
recognized that interference is a possibility when it permitted
co-channel Phase II licensees to place a 38 dBu signal at their common
border. To address situations where interference subsequently occurs,
the Commission indicated that Phase II licensees would have to resolve
such occurrences between themselves.[^35] In the event that instances of
interference do occur between Phase I and Phase II licensees, we are
confident that these licensees, too, will be able to resolve their
differences.

AMTA states that if interference occurs between Phase I licensees, they
will be able to "resolve whatever interference problems arise without
FCC involvement." If this is the case and if, as AMTA suggests,
interference will affect the operations of both Phase I and Phase II
licensees, we see no reason why Phase I and Phase II licensees will not
be similarly able to amicably resolve any interference matters that may
arise. As AMTA points out, many of the Phase I licensees of today will
be the Phase II licensees of tomorrow. And we believe that the unity
that 220 MHz licensees have demonstrated in attempting to make the 220
MHz service successful over the years[^36] will carry over into any
negotiations that they may undertake on interference issues and will
lead to a successful resolution of such matters.

Additionally, AMTA makes the argument that we should modify the
Commission\'s protection criteria because failure to do so "denies Phase
I 220 MHz licensees a quality of service comparable to that of
competitive wireless systems." The matter of whether a 28 dBu or 38 dBu
service contour provides the same quality of service as the 40 dBu
service contour for 800 MHz and 900 MHz service aside,[^37] we have
provided virtually the same service area for 220 MHz systems as the
Commission did for 800 MHz and 900 MHz systems by our selection of
operating parameters. Specifically, the maximum allowable power and
antenna height for 800 MHz and 900 MHz stations is 1000 watts ERP and
305 meters HAAT, which produces a 40 dBu service contour at
approximately 29 miles from the transmitter. The maximum allowable power
and antenna height for 220 MHz stations is 500 watts ERP and 150 meters
HAAT, which produces a 38 dBu service contour at approximately 28 miles
from the transmitter. Thus, in defining the maximum allowable parameters
in this manner for the 220 MHz service, the Commission provided 220 MHz
licensees with about the same service area as 800 MHz and 900 MHz
licensees.[^38]

When the 220 MHz service was established in 1991, the Phase I applicant,
and subsequently the Phase I licensee, expected, when it obtained its
license and constructed its system, to have a system that provided
service to its 38 dBu contour. If a particular 220 MHz licensee\'s
system performs better than anticipated by providing quality signals
beyond its 38 dBu contour,[^39] then this would be a benefit for that
licensee not anticipated in 1991. We do not believe, however, that the
possibility of enhanced system performance in certain unique areas of
the country is a basis for providing Phase I 220 MHz licensees with
protection to a service area that is larger than the service area they
had originally expected to obtain. The Commission\'s current rules
provide 220 MHz licensees with exactly the protection they had expected
to receive when they applied for their licenses --- *i.e.*, protection
to a service area that is equivalent to the service area provided for
the 800 MHz and 900 MHz land mobile radio services.[^40]

In the 220 MHz service, we believe that we have provided appropriate
protection for Phase I licensees and that it is not necessary to require
Phase II licensees to provide the additional protection sought by
petitioners. We conclude that to do so would force Phase II licensees to
provide unnecessary protection to Phase I licensees, thereby diminishing
Phase II licensees\' coverage capabilities[^41] and their ability to
provide service to the public. We are confident that our existing
protection criteria will permit us to license future, Phase II 220 MHz
licensees and will enable these and Phase I licensees to operate in
harmony.

Having presented this overview of the arguments regarding the adequacy
of the current protection criteria, as well as our conclusions and
rationale, we now turn to a more detailed discussion of technical
information and arguments submitted by the petitioners.

**c.Analysis of Technical Arguments**

**(1)Estimation of Propagation Characteristics**

**(a)Performance of 220 MHz Signal**

AMTA claims that the Commission "may have underestimated the propagation
characteristics of the band\[,\]" stating that "220 MHz signals simply
talk considerably farther than those in the 800 MHz and 900 MHz bands
from which the 220 MHz protection criteria seemingly were extrapolated,"
and that this difference is "not reflected adequately in the 2 dB
difference between the benchmark 40 dBu contour at 800 MHz and 900 MHz
and the 38 dBu contour adopted at 220 MHz."[^42] AMTA notes that
commenters have observed that in the "real world," 220 MHz systems
perform better than originally estimated by the Commission,[^43] that
220 MHz systems operating at 500 watts ERP and 500 feet HAAT will
provide "a high quality signal to about 50 percent of the locations, 50
percent of the time throughout a 28 dBu contour,"[^44] and that members
of the 220 MHz service industry will provide data that will "confirm
that the actual reliable service area of a 220 MHz system is represented
by a 28 dBu, not a 38 dBu, contour."[^45]

In the following sections, we discuss the showings provided by various
commenters. With regard to its statement that the Commission may have
underestimated the propagation characteristics of the 220 MHz band, AMTA
appears to be suggesting that 220 MHz signals propagate farther than the
Commission\'s R-6602 curves predict.[^46] However, as we discuss in
later sections, neither AMTA nor any other commenters provide evidence
to adequately support such a claim.

Furthermore, AMTA\'s observation that in the "real world," 220 MHz
signals *perform* better than originally expected, and its claim that
"high quality" 220 MHz signals are present at about 50 percent of the
locations, 50 percent of the time throughout a 28 dBu contour,[^47] are
similarly unsupported by any study, analysis, measurements, or data that
associate the sound produced by 220 MHz receivers operating at the 28
dBu contour, or any other contour for that matter, to any particular
service quality --- *e.g.*, "high quality," "reliable," or otherwise.
AMTA merely states that "customers are operating throughout the 28 dBu
reliable service areas."[^48]

The fact that customers may be "operating" throughout the area
encompassed by a 28 dBu contour, however, is not particularly meaningful
for two reasons. First, the fact that customers are capable of
"operating" in particular areas could simply mean that they are
receiving transmissions in those areas that are minimally acceptable for
communication. In establishing protection criteria for the land mobile
radio services, our goal in the past has been to protect quality signals
from interference.[^49] To protect minimally acceptable or minimally
intelligible signals from interference would result in extremely, and
unnecessarily large distances between co-channel stations, and we have
not nor would not provide this type of interference protection. Second,
in the "real world," terrain can vary from flat, to hilly, to
mountainous. As a result, it is quite possible to receive signals of
varying field strengths at a given distance from a transmitter (*e.g.*,
a mobile station situated at the top of a hill would receive a much
stronger signal than a nearby mobile station at the bottom of a hill);
and we have no way of knowing what type of terrain may have produced the
"reliable service" claimed by AMTA.[^50]

Moreover, AMTA does not provide any details as to how many customers
made these observations, how frequently the observations were made, what
percentage of the estimated number of 20,000 existing 220 MHz
customers[^51] made these observations, whether the customers making
these observations might be operating in an area of unusual and
favorable terrain that might cause received signal strengths to differ
markedly from predicted signal strengths, or what method was used to
gather the data cited by AMTA. Finally, AMTA claims that 220 MHz signals
"simply talk considerably farther than those in the 800 MHz and 900 MHz
bands . . . ." However, AMTA does not explain or elaborate upon this
statement; and it is therefore difficult, if not impossible, for us to
address the merits of its assertion.

INTEK contends that in the *Third Notice* proceeding, the 38 dBu
protection standard was "universally opposed by the land mobile
industry." It supports AMTA\'s position, indicating that, based on
"real-world operational data for Phase I 220 MHz systems that is now
available," the Commission should adopt the 28 dBu service contour.[^52]
INTEK also claims that the use of the 38 dBu service contour will
"result in harmful interference between Phase I and Phase II licensees,
a loss of existing service area for Phase I systems, and resulting
\`dead spots\' between Phase I and Phase II operations."[^53] It
therefore concludes that, if left unchanged, the Commission\'s
protection standards "will lead to harmful interference between Phase I
and Phase II licensees, diminishing the potential use of the band and
devaluating its worth in the marketplace."[^54]

In support of its position, INTEK provides an engineering analysis,
based on the operation of an existing 220 MHz system located in the Los
Angeles, California area, in an attempt to show that "reliable service .
. . is available up to the system\'s 24 dBuV/m contour."[^55]
Specifically, INTEK provides computer-generated maps indicating the
expected locations of 38 dBu, 28 dBu, and 24 dBu signals transmitted
from a base station situated at the top of Mount Lukens (overlooking Los
Angeles).[^56] INTEK claims that "the actual coverage areas wherein no
less than 50% of the mobile units can access the control channel at
least 50% of the time is known to us and our customers as that depicted
by the 24 dBuV/m map."[^57] We do not believe that this statement by
INTEK represents sufficient engineering analysis to justify
re-evaluation of the existing 38 dBu protected service contour. At a
minimum, the circumstance of accessing a control channel is not a
condition that we would use to help us determine an appropriate signal
contour to be protected because it does not correlate to any particular
service quality. Moreover, we are uncertain as to the relationship
between accessing a control channel and INTEK\'s concept of "reliable
service." Thus, we do not believe that INTEK\'s pictorial
representations of the Los Angeles areas where various signal levels are
predicted to be received constitute a sufficient showing to justify its
claim that we should modify the existing 38 dBu service contour for the
220 MHz service.

SMR claims that the Commission\'s "initial selection of the 38 dBu
contour as the best indicator of actual signal strength in the 220 MHz
service appears to have been only a best guess estimate with no
substantiating technical analysis or actual operating data," and that we
should "change this factor now after having the benefit of actual data
accumulated by operating systems and adopt a 28 dBu protected
contour."[^58] In response to this argument, we note that although the
Commission has licensed 3,800 Phase I, non-nationwide base
stations,[^59] we have little data in the record attempting to justify
the adoption of a 28 dBu service contour for the 220 MHz service. And,
as discussed herein, we do not believe this limited amount of data has
successfully justified the adoption of a 28 dBu service contour.

**(b)SMR Comments and Vega Report**

As part of its reply comments, SMR submits what it describes as an
"independent technical analysis" by The Richard L. Vega Group, Inc.[^60]
"in order to provide the Commission with even more technical data to
ensure that its decision is as informed as possible."[^61] The Vega
Report agrees with others who claim that we should use a 28 dBu, rather
than a 38 dBu, protected service contour for the 220 MHz band,[^62] and
contends that a mere 2 dB reduction between the 40 dBu service contour
used for the 800 MHz and 900 MHz bands and the 38 dBu service contour
for the 220 MHz band is insufficient because of the "distinct frequency
trends and the propagation differences between the two services."[^63]
The Report argues that the Commission\'s use of a "64 dBu protected
contour" for the UHF television band (Channels 14-69), and a "56 dBu
protected signal" for the high VHF television band (Channels 7-13)
"establishes a benchmark *8 dB reduction* to the contour protection for
stations operating in frequencies up to 600 MHz lower than in the UHF
band to account for the superior propagation characteristics in the
lower bands."[^64]

We do not agree with this argument for the following reasons. First,
when the Commission determined the Grade B contour for UHF and VHF
stations --- the 64 dBu and 56 dBu figures referenced by the Vega Report
--- in the 1951 rulemaking in Docket Nos. 8736, 8975, 8976, and 9175
(Television Broadcast Service), these calculations were based on a
variety of factors.[^65] Specifically, the Grade A and Grade B contours
for television are the locations at which an acceptable television
picture quality would be expected to be received at a given percentage
of locations and time. When the contours were developed in 1951, the
Grade A contour was meant to define the location in an urban environment
where a picture of acceptable quality would be expected to be received
at 70 percent of locations and 90 percent of the time, and the Grade B
contour was meant to define the location in a rural environment where a
picture of acceptable quality would be expected to be received at 50
percent of locations and 90 percent of the time.

In determining the Grade A and Grade B contour, several factors had to
be taken into consideration. For example, it was determined that a
signal-to-noise ratio of 30 dB was needed to produce a picture of
acceptable quality, and this applied to televisions operating in all
three frequency bands --- Channels 14-83[^66] (UHF), Channels 7-13 (high
VHF), and Channels 2-6 (low VHF). In addition, there were other factors
that contributed to the level of the signal received, such as the
antenna dipole factor, the gain of the television receive antenna, and
the transmission line loss between the antenna (presumed to be 30 feet
above ground) and the television. It was also necessary to take into
consideration factors contributing to noise experienced at the receiver,
including receiver noise --- *i.e.*, thermal noise plus the receiver
noise figure --- and man-made noise. In addition, it was necessary to
take into account the fact that the Grade A and Grade B contours were
meant to indicate the existence of the signal level 90 percent of the
time and either 50 percent of the locations (for Grade B) or 70 percent
of the locations (for Grade A), with adjustments having to be made for
these factors.

Thus, certain factors contributing to the determination of the Grade A
and Grade B contours were based on known electromagnetic principles
(*e.g.*, the antenna dipole factor), others were based on the quality of
television receivers at the time (*e.g.*, the determination of the
signal level needed to produce a picture of acceptable quality, the
noise figure of the television receiver), others were based on
mathematical models (*e.g.*, "time fading" and "location variability"),
and still others were based on assumptions about the configuration of
the television receiver and antenna (*e.g.*, antenna gain and line loss)
and the electromagnetic environment surrounding the television receiver
and antenna (*e.g.*, the man-made noise factor). By deciding on what it
considered to be the appropriate values for each of these factors, the
Commission was able to determine the strength of a television signal
that would produce picture of acceptable quality, for all three
frequency bands.

The Vega Report points to the 8 dB difference in field strength of the
Grade B contour for Channels 7-13 and Channels 14-69, and suggests that
this is evidence that because Channel 14-69 and Channel 7-13 frequencies
parallel the 800 MHz and 900 MHz and 220 MHz frequencies, the protected
service contour for 220 MHz should similarly be much more than 2 dB
below the protected service contour for the 800 MHz and 900 MHz
band.[^67] As indicated above, however, the determination of the
television contours for Channels 14-69 and Channels 7-13 is a function
of a variety of factors, some of which were unique to the television
systems of the early 1950s. Thus, we would not consider the existence of
different Grade B television field strength contours for different
television bands to be the sole grounds for the adoption of similar
field strength differences for land mobile system service contours.

Further, even if we were to assume *arguendo* that the fairly
substantial difference between the Grade B contour for Channels 14-69
versus Channels 7-13 is evidence that we should employ a similar field
strength difference for 220 MHz versus 800 MHz and 900 MHz, it is not
entirely clear why we would choose to employ the Grade B, rather than
the Grade A contour, for this purpose.[^68] And significantly, the
difference between the Grade A contour for television Channels 14-69
versus Channels 7-13 is only 3 dB, which is very close to the 2 dB
difference between the 40 dBu service contour for the 800 and 900 MHz
bands, and the 38 dBu service contour of the 220 MHz band.

Thus, given the fact that:

(1)the simple, mathematical difference in frequency between the
different TV bands was not the only factor used to determine the Grade A
and Grade B contours for the different TV bands;

(2)the factors that went into determining these contours were, for the
most part, unique to television receivers and the television receiver
system and environment; and

(3)even if we were to consider the television contours as a basis for
determining appropriate service contours for land mobile systems, it is
not clear that the Grade B contours should be used for this purpose,

we conclude that it would not be appropriate to adopt a 28 dBu protected
service contour for the 220 MHz service solely because the Grade B
contour for Channels 7-13 is 8 dB below the Grade B contour for Channels
14-69.

The Vega Report also argues that the Commission\'s development of a
protected service contour in the cellular service "provides additional
support for a modification to the 220 MHz protected contour."[^69] The
Report observes that "the \`outer bounds\' of \[cellular\] service was
being provided at the 32 dBu contour, which was significantly lower than
the 40 dBu protected contour employed in the 800/900 MHz services, even
though systems in the 800/900 MHz service operate in virtually the same
frequency band as cellular."[^70] The Vega Report claims that "a more
appropriate and consistent accounting for the differences between the
\[800/900 MHz and 220 MHz\] frequency bands support \[*sic*\] a
reduction from the 32 dBu protected cellular contour of at least 4 dB,
resulting in a 28 dBu protected contour for the 220 MHz service with a
corresponding minimum 10 dB C/I ratio to account for the frequency
difference."[^71]

The references in the Vega Report and by SMR[^72] to recent actions in
the cellular service and their argument that the determination of
protected service contours is frequency-dependent are difficult to
reconcile. For example, the Vega Report states that, because we are
employing a 32 dBu contour for cellular, we should provide a "reduction
from the 32 dBu protected cellular contour of at least 4 dB, resulting
in a 28 dBu protected contour for the 220 MHz service . . . ." But the
Vega Report provides no calculations that produce such a 4 dB figure.
The Report also acknowledges that the 32 dBu contour used for cellular
is significantly lower than the 40 dBu protected contour employed for
the 800 MHz and 900 MHz land mobile services --- services that are in
the same part of the spectrum as cellular. SMR\'s argument, based upon
the Vega Report, that we should expand the protected service contour for
the 220 MHz band from 38 dBu to 28 dBu because the determination of this
contour is frequency-dependent and its argument that the Commission
employs a 32 dBu contour for cellular while employing a 40 dBu contour
for the land mobile services operating essentially in the same frequency
band would appear to be inconsistent.

In support of the contention that we should provide for what the Vega
Report claims is a "more realistic protected service area," the Report
provides signal strength measurements produced by "an existing 220 MHz
facility."[^73] The station transmitter operates at 5 watts ERP, at a
height of 981 meters above mean sea level (AMSL). Data was collected in
four different azimuths (0^0^, 225^0^, 270^0^, and 315^0^) and at three
distances from the transmitter (16, 32, and 48 miles).[^74] The
following data was collected:

  ----------- -------------------------------------- -----------------------
  **Miles**   **Measurements**                       **Directions**

  16          -83 dBm, -80 dBm, -80 dBm, -85 dBm     0^0^, 225^0^, 270^0^,
                                                     315^0^

  32          -90 dBm, -85 dBm, -85 dBm, -95 dBm     0^0^, 225^0^, 270^0^,
                                                     315^0^

  48          -100 dBm, -93 dBm, -88 dBm             0^0^, 225^0^, 270^0^
  ----------- -------------------------------------- -----------------------

In referring to the data provided in the Vega Report, SMR states that
"as can be seen by the tabulated results . . . the readings at the 28
dBu contour point consistently showed reliable service."[^75]

We have the following observations with regard to this data. First, we
note that the particular transmitter site chosen for the Vega Report\'s
study is situated at Tiger Mountain, which is located about 20 miles
southeast of Seattle, Washington. In Section 90.621(b)(1) and (b)(3) of
the Commission\'s Rules, the Commission identifies 19 mountains in the
Seattle area, including Tiger Mountain, and four mountains in the Los
Angeles area,[^76] and indicates that co-channel base stations located
in the vicinity of base stations transmitting from these mountaintops
are deserving of special protection. This special protection is
necessary because signals from base stations at these locations will
propagate farther than predicted by the Section 73.699 curves.[^77]
Based on our knowledge of the particular terrain surrounding Tiger
Mountain, we can state with confidence that any signal measurements
taken in the low-lying areas to the north and west of the mountain would
be greater than predicted by the Section 73.699 curves.[^78] As
indicated in the table above, the only data shown in the Vega Report are
measurements taken in the northerly and westerly directions from Tiger
Mountain (*i.e.*, at the 0^o^, 315^o^, 270^o^, and 225^o^ azimuths).

Another concern in evaluating this data is that the Vega Report does not
indicate whether each data element represents a single measurement taken
at a single location (*e.g.*, one measurement taken at one location to
represent the 0^o^ azimuth data element at 16 miles, one measurement
taken at one location to represent the 225^o^ azimuth data element at 32
miles, *etc.*) or whether each data element represents an average of
several measurements taken in the same general area. If it is the
former, the measurements may not provide an accurate representation of
the median field strengths received at those locations.[^79]

The presumed purpose of the data provided by the Vega Report is to
demonstrate that signals transmitted from this base station site
propagate farther that predicted by our Section 73.699 curves.[^80]
However, the Vega Report does not provide an analysis of the data to
support such a claim. Nor does SMR explain its statement, in referring
to the data provided in the Vega Report, that "as can be seen by the
tabulated results . . . the readings at the 28 dBu contour point
consistently showed reliable service." In the absence of such analysis
or explanation, and because of our concerns about the data that was
collected (*see* paras. -, *supra*) we could not consider use of this
data to support any recalculation or reevaluation of the 220 MHz service
contour.

SMR also asserts that Commission\'s decision in the *220 MHz Third
Report and Order* to protect the 38 dBu contour of incumbent licensees
is "inconsistent with actions taken with respect to incumbent licensees
in substantially similar radio services."[^81] In support of this
contention, SMR discusses previous Commission actions --- such as the
decision to employ a 32 dBu contour in determining a cellular
licensee\'s Cellular Geographic Service Area,[^82] and the decision to
modify the protection criteria for Multipoint Distribution Service
stations[^83] --- and claims that because of the Commission\'s actions
in these decisions, we must take similar actions in the 220 MHz service.

We do not disagree with SMR\'s observation that the Commission has in
the past made adjustments to the contours that it has employed in other
services. The Commission has done so in instances where it believed such
adjustments were appropriate and justified. As we indicate throughout
this discussion, however, we do not believe that the petitioners and
commenters in this proceeding have provided adequate support for their
various requests to modify the service contour for the 220 MHz service.

**(c)TCG Report and PERS Comments**

INTEK, in its reply comments, furnishes a report by the Trott
Communications Group (TCG Report)[^84] designed to "analyze the effects
of both the FCC\'s existing co-channel protection rules and those
proposed by INTEK and other parties."[^85] The TCG Report, in attempting
to justify the use of the 28 dBu protected service contour for the 220
MHz service, observes that the receiver input power for a 28 dBu field
strength at 220 MHz is roughly equivalent to the receiver input power
for a 40 dBu field strength at 855 MHz,[^86] and therefore concludes
that "at the service area boundary of 40 dBu at 855 MHz, the same level
of performance can be expected as at a service area boundary of 28 dBu
at 220 MHz."[^87] The TCG Report also provides a pictorial view of the
predicted 28 dBu signal of a Roamer One, Inc.[^88] base station in the
St. Louis, Missouri, area, calculated using the station\'s operating
parameters and the Section 73.699 curves (Figure 10), and overlays a
"propagation plot" using the same operating parameters and the
Okumura/Hata Extended propagation model. The TCG Report observes that
"the 28 dBu service contour closely approximates the actual coverage
area expected from this site at these operational parameters."[^89]
Based on these showings, the TCG Report concludes that the protected
service area for 220 MHz stations should be defined at the 28 dBu
contour.

The mathematical calculations in the TCG Report indicate a similarity
between the received power of a 28 dBu signal at 220 MHz and a 40 dBu
signal at 855 MHz. However, as we have discussed in connection with the
Grade A and Grade B contours,[^90] there are a number of factors, in
addition to operating frequency, that must be taken into account in
determining a system\'s appropriate service contour. It is also
interesting to note that when the 120 km separation distance, along with
the 38 dBu protection criteria, were developed by the Commission in 1991
in the *220 MHz Report and Order*, petitioners could have sought
reconsideration of those decisions based on this plausible
"mathematical" argument (as presented in the TCG Report). In the absence
of "real world" data from 220 MHz systems (because such systems were not
yet in use at that time) petitioners could have used this argument as
being an appropriate criterion for distinguishing the 220 MHz band from
the 800 MHz and 900 MHz bands. Yet, they did not.[^91]

As to the claim in the TCG Report that the "28 dBu service contour
closely approximates the actual coverage area expected" at the St. Louis
base station site, we observe that the predicted 28 dBu contour based on
the Section 73.699 curves is approximately 27 miles in radius. The
predicted plot shown of the 28 dBu signal using the Okumura/Hata model,
which takes into account the terrain surrounding the base station,
indicates a non-circular coverage area that, on average, extends about
27 miles from the base station site. We do not see the connection
between this showing, which indicates that the predicted coverage of the
station based on the actual terrain surrounding the station is similar
to the predicted coverage of the station based on the Section 73.699
curves, and the TCG Report\'s call for the adoption of a 28 dBu
protected service contour. In our view, the showing only confirms the
validity of the field strength curves in Section 73.699 and does not
provide justification for modifying the Commission\'s existing 38 dBu
service contour for the 220 MHz service.

PERS asks that we "adopt co-channel separation that properly protects
the performance of all \[Phase I and Phase II\] systems based on the
real-world operation of these systems,"[^92] and provides a showing to
support its argument that we revisit our Phase I/Phase II separation
criteria. Specifically, PERS provides three figures that show predicted
field strength values in the areas surrounding three different base
station sites in the New England area using an unspecified terrain
model.[^93] Additional figures show the predicted 38 dBu and 28 dBu
service contours in the vicinity of these stations, calculated using the
Section 73.699 curves.

PERS states that the "28 dBu contour comes the closest to the actual
real-world coverage in the actual propagation study . . . ."[^94]
However, PERS\'s showings only demonstrate that in areas surrounding a
base station where the terrain lends itself to greater signal
propagation, the 28 dBu signal level as shown by PERS extends beyond the
predicted 28 dBu contour as determined by the Section 73.699 curves;
while in areas where the terrain lends itself to weaker signal
propagation, the 28 dBu signal level as shown by PERS extends less than
the distance of the predicted 28 dBu contour as determined by the
Section 73.699 curves. As we previously concluded with regard to the TCG
Report, we do not see how this type of showing justifies modification of
the existing 38 dBu service contour for the 220 MHz service.

**(2)Use of Single Sideband Technology**

AMTA contends that the 220 MHz protection criteria should be changed
because of the use by Phase I licensees of single sideband (SSB), rather
than FM technology.[^95] In particular, AMTA asserts that mobile
stations are more likely to suffer from interference due to their use of
SSB instead of FM, because FM, with its "capture" effect, enables mobile
stations to hear only the desired signal "as long as the undesired
signal is at least 10 dB down," while mobile stations using SSB "hear
both signals in areas of overlap, irrespective of the relative signal
strength of the signals."[^96] Petitioners, however, beyond making these
observations, do not explain why the use of SSB technology by licensees
in the 220 MHz band is reason for changing the 220 MHz service contour
from 38 dBu to 28 dBu. In the absence of such explanations, we conclude
that petitioners\' observations do not provide a sufficient basis for
modification of the Commission\'s protection criteria.

**(3)Minimum Co-Channel Distance**

In its reply comments, SMR asserts that "in order to provide 10 dBu
\[*sic*\] interference protection to the Phase I licensee\'s 28 dBu
contour" we should provide a minimum co-channel distance of 170 km
unless "unique terrain or other features justify a lesser distance
separation," in which case the Phase II licensee "should be permitted to
demonstrate that it could provide 10 dB protection to the 28 dBu contour
of the Phase I licensee at the lesser distance."[^97]

The Commission\'s rules call for a "standard" 120 km distance separation
between co-channel 220 MHz stations, but allow Phase II licensees to
afford less than 120 km protection to Phase I stations if they provide
10 dB protection to the 38 dBu contour of the Phase I stations. The 120
km distance results when both the Phase I and Phase II stations are
operating at maximum facilities (*i.e.*, 500 watts ERP and 150 meters
HAAT).[^98] The provision that allows Phase II licensees to provide 10
dB protection to the 38 dBu contour of the Phase I station[^99] enables
Phase II licensees to take into consideration the fact that their
station or the Phase I station (or both) may be operating at less than
maximum facilities, and therefore enables these licensees to locate
their stations at a distance less than 120 km from the Phase I
station.[^100]

AMTA, INTEK, SMR, and PERS, in their petitions, call for a change to
this rule to require Phase II licensees to provide 10 dB protection to
the 28 dBu contour of the Phase I licensee. If such a rule were adopted,
the 120 km distance separation, which was based on the provision of 10
dB protection to a 38 dBu contour using the maximum allowable power and
antenna height for the 220 MHz service, would have to be recalculated to
reflect a separation based on 10 dB protection to a 28 dBu contour.
Assuming use of the same maximum allowable power and antenna height,
this separation would be the 170 km distance that SMR proposes. It is
not clear, however, from SMR\'s reply comments whether it is simply
proposing that, in conjunction with a change of the protected contour
from 38 dBu to 28 dBu, we should: (1) concurrently change the "standard"
separation distance from 120 km to 170 km; or (2) provide for a
*uniform* 170 km separation (regardless of either licensee\'s power
level or antenna height) --- with distances of less than 170 km allowed
only in areas that contain "unique terrain or other features."

The former interpretation of SMR\'s petition, *i.e.*, changing the
standard separation distance, would be a logical consequence if we
decided to change the protected contour for Phase I stations from 38 dBu
to 28 dBu.[^101] The latter interpretation would require a Phase II
licensee operating at somewhat less than maximum allowable power and
antenna height to protect a Phase I licensee as if both licensees were
operating *at* the maximum allowable parameters.[^102] If SMR is
proposing that Phase II licensees uniformly provide 170 km protection to
Phase I licensees, except in areas of "unique terrain or other
features," it does not provide an explanation for requesting this degree
of protection.

**(4)Provision of Greater Than 10 dB Protection**

PCIA and SEA contend that in order to adequately protect Phase I
stations, we should provide greater than 10 dB protection to the
existing service contour. PCIA states that, for the 800 MHz and 900 MHz
services, the Commission agreed that "there needed to be a minimum of 18
dB signal difference between the desired and undesired signals for
\`routine\' short-spacing in order to prevent co-channel interference,"
but that in this proceeding the Commission "has decided to go back to
the 10 dB signal difference, thereby going back to a rule which the
previously found did not adequately protect co-channel licensees."[^103]
PCIA asserts that "there is no valid rationale to treat incumbent 220
MHz licensees differently from incumbent 800 MHz licensees."[^104] PCIA
also argues that our decision was adopted "even though licensees and
manufacturers have demonstrated that 220 MHz systems \`in the real
world\' cover areas in excess of the Commission\'s initial prediction."

At the outset, we emphasize that since the initiation of this proceeding
with the *Third Notice*, neither the Commission nor any commenters had,
until now, suggested that the current 10 dB protection criteria be
increased. Regarding the merits of PCIA\'s arguments, we first question
PCIA\'s claim that the Commission made its decision to employ a 10 dB
protection for 220 MHz licensees in the face of demonstrations that 220
MHz systems cover areas beyond the Commission\'s initial prediction. At
the time the Commission made that decision in the 220 MHz Third Report
and Order, there were, in fact, claims of coverage beyond what was
predicted, but no evidence or demonstrations of such coverage were
provided; and as discussed elsewhere in this Order, we do not believe
that petitioners have provided adequate justification in this proceeding
for claims of greater coverage. Additionally, we note that PCIA provides
no discussion or technical analysis in support of its contention that we
provide greater than 10 dB protection for Phase I licensees. In the
absence of such discussion, we cannot reasonably consider the adoption
of PCIA\'s proposal, and we reject its recommendation to increase the
protection criteria for 220 MHz stations.

SEA, in its comments, notes that employing an 18 dB protection ratio to
a 38 dBu service contour would increase the "nominal Phase I-to-Phase II
co-channel separation distance to about 140 km."[^105] It therefore
recommends that 140 km "be the minimum geographic separation between
co-channel stations."[^106] SEA, however, does not provide any
discussion or rationale in support of its position,[^107] and we thus
reject its recommendation, as well.

**(5)Protection of Phase I Systems**

With regard to the general issue of co-channel interference, AMTA
believes that such interference affects the operation of both Phase I
and Phase II stations, and therefore believes that "there is a
commonality of interest between Phase I and Phase II operators in seeing
that the FCC adopts co-channel separation criteria that properly protect
the performance of all systems."[^108]

With regard to co-channel interference between Phase I systems, AMTA
notes that, while it believes that technical considerations support "an
improved co-channel separation standard" between such systems, because
Phase I stations are operating pursuant to the existing protection
criteria, it does not recommend any change to the "Phase I to Phase I
protection requirements." Rather, it states that the industry "hopes to
resolve whatever \[Phase I to Phase I\] interference problems \[that\]
arise without FCC involvement."[^109]

AMTA also observes that "the likelihood of \[resolving Phase I to Phase
I interference problems\] is significantly increased because both
parties will be subject to identical regulatory obligations and entitled
to identical regulatory protection," remarking that "unlike the Phase
I/II separation criteria adopted in the Order, neither party will have
superior regulatory rights."[^110]

AMTA, however, does not provide an explanation as to why it believes
that Phase II licensees have "superior regulatory rights," nor does it
explain how the rules we have adopted for Phase I and Phase II
operations might affect the resolution of interference disputes between
Phase I and Phase II licensees. We therefore do not believe that AMTA\'s
observations lend support to its claim that Phase I/Phase II separation
criteria should be modified.

**2.Calculation of Service Contour**

In the *220 MHz Third Report and Order*, the Commission determined that
Phase II EA and Regional licensees should be required to locate their
base stations at least 120 km from the base stations of co-channel Phase
I licensees, except that such licensees should be permitted to locate
their base stations less than 120 km from the base stations of
co-channel Phase I licensees if they provide 10 dB protection to the
predicted 38 dBu service contour of the base stations of co-channel
Phase I licensees.[^111] The Commission also decided that the predicted
38 dBu contour of the Phase I licensees would be calculated based on the
licensee\'s authorized ERP and HAAT --- not on the maximum allowable ERP
and HAAT provided in the Commission\'s rules for the 220-222 MHz
band.[^112] The Commission required licensees to operate at their
initially authorized ERP and HAAT, and did not permit licensees to seek
modification of their authorization to operate at a higher ERP or
HAAT.[^113] The Commission further determined that licensees operating
at power levels lower than their initially authorized ERP would be
required to seek modification of their authorization to reflect the
lower ERP.[^114]

SEA, PCIA, INTEK, and SMR disagree with the Commission\'s decision to
require Phase I licensees to modify their authorizations to reflect the
system\'s actual ERP, and to define the service area based upon actual
ERP.[^115] PCIA contends that this is a departure from previous
Commission policy for Part 90.[^116] PCIA and SEA argue that these
requirements will result in a significant reduction in the protection
afforded to Phase I licensees.[^117] Several parties contend that a
Phase I licensee\'s service area should be defined based on maximum
authorized power and height levels.[^118] INTEK claims that using
maximum facility values will strike the appropriate balance between the
interests of Phase I and Phase II licensees.[^119]

We disagree with petitioners. As indicated in the *220 MHz Third Report
and Order*, the Commission\'s goal was to provide service to the
public.[^120] In authorizing Phase II licensees to serve a particular
geographic area, the Commission sought to allow them to serve "any
portion" of that area, "except for portions of the area already being
served by co-channel Phase I licensees."[^121] The area "already being
served" by co-channel Phase I licensees plainly cannot be calculated
based on an assumption of the use by such licensees of maximum allowable
operating parameters. Nor should this area be calculated based on the
licensee\'s authorized ERP, if the licensee is not operating at its
authorized ERP. Rather, it is the area the licensee was serving at the
time the decisions adopted in the *220 MHz Third Report and Order*
became effective,[^122] and must therefore be calculated based on the
licensee\'s ERP and HAAT at that time.[^123]

In asserting that the *220 MHz Third Report and Order* is inconsistent
with previous Part 90 policy, PCIA points to the Commission\'s actions
in protecting Part 90, Subpart S[^124] systems from co-channel
interference based on maximum allowable ERP. Specifically, PCIA cites
the use of the Table in Section 90.621(b)(4) of the Commission\'s Rules
that identifies appropriate co-channel separation distances between
existing stations and proposed "short-spaced"[^125] stations based on
the operating parameters of such stations. While it is true that the
Table assumes that existing stations are considered to be operating at
maximum allowable ERP, it is important to note that the Table was
designed to provide licensees seeking to "short-space" with a simple,
uncomplicated method for doing so that did not require the submission of
a technical showing.[^126]

In developing the Table, the Commission decided that the distance
separations would be based on the more conservative approach of
providing 18 dB of protection to the 40 dBu contour of an existing
station,[^127] and of assuming that existing stations were operating at
maximum allowable ERP.[^128] However, the Commission indicated that an
entity providing a technical showing as part of a request to short-space
to an existing station by waiver could base that showing on the existing
station\'s *actual* power and antenna height.[^129] We therefore
disagree with PCIA\'s assertion that our use of the Table in Section
90.621(b)(4) for the 800 MHz and 900 MHz services demands that we
protect Phase I 220 MHz licensees based on the maximum allowable ERP for
the 220 MHz band.[^130] Rather, we believe that the Commission\'s
decision in the *220 MHz Third Report and Order* to protect Phase I
licensees in accordance with their actual facilities is not inconsistent
with Commission practices in those services.

We continue to believe that our goal should be to facilitate the
provision of 220 MHz service to the public. In accomplishing this, we
must attempt to ensure that such service is not denied to any geographic
areas in the Nation. If we were to assume that all 220 MHz Phase I
licensees are operating at the maximum power and antenna height for the
220 MHz service --- 500 watts ERP and 150 meters HAAT, respectively ---
when many are not operating at such parameters and may never operate at
such parameters,[^131] we could force Phase II licensees to provide
considerably greater protection to co-channel Phase I licensees than
necessary, and thereby potentially deny service to the public in areas
beyond the Phase I licensee\'s actual 38 dBu service contour.[^132]

A 220 MHz Phase I license was granted by the Commission based on a
specific location and operating parameters. There was no guarantee that
the licensee would be allowed to alter its operating parameters without
the possibility of competing applications from others wishing to serve
this territory.[^133] Similarly, we cannot assume that Phase I licensees
that were operating at a particular ERP at the time of the decisions
adopted in the *220 MHz Third Report and Order* became effective will
some day increase that ERP to their authorized power level. And again,
to protect a Phase I licensee\'s base station in accordance with a power
level that the licensee *might* employ at some time in the future could
deny service to the public.

We thus conclude that the decision made by the Commission in the *220
MHz Third Report and Order* regarding the method to be used to calculate
the 38 dBu service contour of Phase I base stations[^134] is
appropriate, and requests for the adoption of alternative methods made
by petitioners are therefore denied. The Wireless Telecommunications
Bureau will issue a Public Notice following the adoption of this Order
announcing when applications must be filed by Phase I, non-nationwide
licensees in order to enable such licensees to comply with the
requirement that they modify their authorization to reflect the ERP at
which they were operating at the time the decisions adopted in the *220
MHz Third Report and Order* became effective.

**3.Emission Masks**

In the *220* *MHz Third Report and Order,* the Commission decided to
eliminate the emission mask at the edge of "inside" channels for Phase I
and Phase II licensees authorized on contiguous channel
assignments.[^135] The Commission concluded that, because licensees
constructing base stations must adhere to the required co-channel
separation criteria with respect to all co-channel licensees in their
areas, the increased strength of out-of-band signals would not result in
any increased likelihood of harmful interference to co-channel
licensees.[^136] This decision met with a generally favorable
response.[^137] Both Glenayre and PCIA remark that the Commission\'s
action will permit licensees to use the most efficient technology for
the service they offer.[^138] Comtech, however, raises a concern that
"the revised rule section 90.733(d) and (e) only address instances in
which licensees use channels that are wider than 5 kHz \[and that the\]
regulations do not clearly address circumstances in which licensees
combine multiple authorizations to use channels wider than 5 kHz," and
petitions us to clarify this matter.[^139]

Under the revised rule Section 90.733, the emission limits in Section
90.212(f) must be met only at the outermost edges of contiguous
channels. The rule does not address contiguous channels under only one
authorization --- Section 90.733 simply uses the term "authorized
contiguous channels." Therefore, we clarify that emission limits must be
met *only* at the outermost edges of contiguous channels, including
those cases in which licensees combine multiple authorizations that
result in contiguous channels. As the Commission indicated in the *220
MHz Third Report and Order*, because licensees operating on contiguous
channels will be providing required protection to all co-channel
licensees in their area, interference will not occur to those licensees
as a result of the elimination of the emission mask on all "inside"
channels. Thus, so long as licensees combining multiple authorizations
to create a contiguous channel block maintain the required co-channel
protection on all of the channels that comprise the channel block, we
clarify that such licensees will be permitted to eliminate the emission
mask on all "inside" channels.

**4.Antenna Height Above Average Terrain vs. Antenna**

**Height Above Ground**

In the 220 MHz service, the Commission\'s rules specify maximum
allowable power, both for stations operating on base station frequencies
(*i.e.*, channels in the 220-221 MHz band) and for stations operating on
mobile station frequencies (*i.e.*, channels in the 221-222 MHz band).
In both instances, the maximum allowable power is related to the height
of the transmitting antenna. The maximum allowable ERP of a base
station, or of a fixed station operating on base station frequencies, is
provided in a Table in Section 90.729(a) of the Commission\'s Rules, and
is a function of HAAT.[^140] The maximum allowable ERP of stations
operating on mobile frequencies is provided in a formula in Section
90.729(b) of the Commission\'s Rules as a function of the height of the
antenna above ground.[^141] SEA petitions the Commission to calculate
the maximum allowable ERP of stations operating on mobile frequencies
based on HAAT, and INTEK also comments in favor of using the HAAT
standard.[^142]

SEA advocates restricting antenna height to 7 meters above average
terrain rather than 7 meters above ground, and characterizes the
above-ground standard as a weakening of the rule.[^143] SEA believes
that measuring antenna height above ground could lead to violations of
the intent of the rule, and could cause disruptive interference.[^144]
According to SEA, allowing construction of fixed and paging antennas in
the 221-222 MHz band at 7 meters above ground could permit greater ERP
from a paging station operating at a high site than would be allowed by
a standard 220-221 MHz repeater transmitter, because the ERP of the
standard 220-221 MHz repeater transmitter is a function of HAAT.[^145]
SEA therefore requests that Sections 90.729(b) and 90.729(c) be modified
to reference HAAT instead of height above ground.[^146]

We agree with SEA and grant its request to modify Sections 90.729(b) and
90.729(c). We believe that it is appropriate to require the height
limitation for stations operating on the 221-222 MHz frequencies to be
associated with the HAAT of the station\'s transmitting antenna, rather
than the antenna\'s height above ground. This rule was adopted to
minimize interference to adjacent channel operations on the 221-222 MHz
channels. By requiring licensees operating stations in this band to
limit the height of their transmitting antenna to 7 meters HAAT, we will
eliminate instances of licensees inadvertently causing interference to
adjacent channel operations by transmitting at an antenna height of 7
meters above ground at a particularly high elevation.[^147] We also
agree with SEA that Section 90.729(c), too, should be modified to
indicate that the height restriction of base stations operating on
channels 196-200 must be associated with such station\'s transmitting
antenna HAAT, rather than the antenna\'s height above ground.
Modification of this rule in this manner will similarly eliminate
instances of inadvertent interference to adjacent channel operations in
the 221-222 MHz band from transmissions on these channels.

**5.Allowable Power Limit for Mobile Channels**

For the 220 MHz service, the maximum allowable power for transmissions
on mobile channels (channels in the 221-222 MHz band) is 50 watts
ERP.[^148] As the Commission explained in the *220 MHz Third Report and
Order*, this restriction is necessary to ensure that such transmissions,
including transmissions on mobile channels by licensees operating
two-way paging systems, do not cause adjacent channel
interference.[^149]

Comtech and Glenayre petition the Commission to revise the 50 watt ERP
limit.[^150] Comtech first notes that, with respect to nationwide
licensees, there is no danger of interference to co-channel licensees,
because no other licensee will be authorized to use their mobile side
channels, anywhere in the Nation.[^151] Comtech acknowledges, however,
that it is adjacent channel users, and not co-channel licensees, that
the height and power limitations are intended primarily to
protect.[^152] Comtech claims that the Commission\'s approach for the
220 MHz service differs from the Commission\'s regulations governing
similar services.[^153] Comtech contends that the potential for
interference is no greater in the VHF band than it is for 220-222 MHz
systems, and that comparable transmissions in the VHF band are permitted
up to 500 watts ERP.[^154] Therefore, Comtech argues, the Commission
should revise its rule to reflect the same height-power limits and
adjacent-channel interference restrictions it provides for the VHF band
in Section 22.535 of the Commission\'s Rules.[^155] Glenayre states that
limiting the mobile frequency ERP for fixed operations will preclude
efficient one-way paging operations, especially for nationwide
licensees.[^156]

We do not believe it would be appropriate to grant petitioners\'
request. In the *220 MHz Third Report and Order*, the Commission decided
that fixed stations operating on mobile channels would be limited to 50
watts ERP, with an antenna height of 7 meters above ground, but provided
that this height could be exceeded if the power level is decreased below
50 watts ERP in accordance with a formula provided in Section 90.729(b)
of the Commission\'s Rules. The Commission imposed this antenna height
limit for fixed stations operating on the 221-222 MHz frequencies
because of its concern about the possibility of interference to
traditional, two-way land mobile operations if adjacent channel
licensees transmitting on these frequencies operated fixed paging
stations at high elevations. That is, if a licensee operates a fixed
paging station at a high elevation, its signal could interfere with the
signal of an adjacent channel mobile station attempting to transmit to
its base station receive site.

If 220 MHz licensees were to be permitted, as petitioners propose, to
operate fixed stations in the 221-222 MHz band at a power level of 500
watts ERP --- ten times higher than the current limit --- we would have
a similar concern about the possibility of interference to adjacent
channel 220 MHz land mobile operations. In its comments in this
proceeding, SEA --- which "petitioned the Commission to strengthen the
current rule" with regard to mobile channel operations --- argues
against petitioners\' request to allow an increase in the power limit on
the mobile channels, stating that it "vigorously oppose\[s\] any
weakening of \[the\] rule" relating to operations on such
channels.[^157] We conclude that permitting 500 watt ERP fixed station
transmissions on the mobile channels in the 220 MHz band could cause
interference to adjacent channel operations, and therefore reject the
adoption of a rule that would allow for such transmissions.

Petitioners further argue that, because the Commission permits a 500
watt ERP power level for paging base stations operating on Part 22 VHF
channels that are adjacent to channels used for mobile transmissions, we
should similarly provide for such power limits in the 220 MHz band. In
support of this argument, they contend that the existence of 500 watt
ERP stations presents no more potential for interference in the 220-222
MHz band than currently exists in the Part 22 VHF band. We reject
petitioners\' argument because it assumes a commonality between the
technical characteristics of VHF land mobile equipment operating under
Part 22 of the Commission\'s Rules and equipment used in the 220-222 MHz
band. The technical characteristics of VHF equipment operating under
Part 22 and equipment operating in the 220 MHz band are, of course, not
identical. Thus, we cannot accept petitioners\' contention that the same
rules that apply to Part 22 paging operations on channels adjacent to
channels used for mobile transmissions should be applied to the 220 MHz
band.

To illustrate how the Commission\'s rules currently address similar
operations in the 220 MHz band, we turn to Section 90.723(d)-(f) of the
Commission\'s Rules. These rules provide the procedures that 220 MHz
licensees must follow to ensure that interference is not caused by base
station transmitters operating on channels adjacent to channels used for
mobile transmissions. In the 220-222 MHz band, where the base station
transmit frequencies are situated immediately below the mobile station
transmit frequencies,[^158] the possibility exists for interference to
the reception of signals at base stations receiving on the lower
channels in 221-222 MHz band from transmissions from nearby base
stations transmitting on the upper channels in the 220-221 MHz band.

The Commission, in developing the original 220 MHz service rules,
recognized this possibility for interference, and adopted rules that
require geographic separation between Phase I base stations transmitting
on the upper 40 channels in the 220-221 MHz band (*i.e.*, channels
161-200, referred to in the Commission\'s rules as "Sub-band B")[^159]
and Phase I base stations receiving on the lower 40 channels in the
221-222 MHz band (*i.e.*, channels 1-40, referred to in the
Commission\'s rules as "Sub-band A"). Specifically, the rules require a
separation of at least 6 km between Phase I base stations transmitting
at 500 watts ERP on Sub-band B channels and base stations receiving on
Sub-band A channels if the transmitting channel is within 200 kHz of the
receive channel.[^160] In the *220 MHz Third Report and Order*, the
Commission continued to demonstrate its concern about this type of
interference by requiring Phase II licensees transmitting on Sub-band B
channels to provide protection to existing Phase I licensees operating
on Sub-band A channels in accordance with the provisions of Section
90.723(d);[^161] and by requiring Phase II licensees operating on
Sub-band B and Sub-band A channels to coordinate the location of their
base stations with one another to avoid interference.[^162]

Because the Commission adopted these requirements to ensure that base
stations in the 220-221 MHz band do not cause interference to the
reception of signals by base station receivers in the adjoining 221-222
MHz band, if we were to allow 500 watt ERP operation by fixed stations
transmitting on any and all of the channels in the 221-222 MHz band, we
would similarly have to ensure that interference would not be caused to
base station receivers attempting to receive signals in that band. To
accomplish this in a manner similar to the way we currently protect base
station receivers operating on the Sub-band A channels, we would have to
require 500 watt ERP fixed stations transmitting on channels in the
221-222 MHz band to afford protection to any base station receive sites
up to 200 kHz removed in accordance with provisions similar to those
prescribed in Section 90.723.[^163] Thus, for example, if a Phase II,
nationwide licensee authorized on channels 81-90 sought to operate a 500
watt ERP fixed station on its mobile channels, then it would have to
ensure that all licensees operating up to 200 kHz below channel 81
(*i.e.*, channels 41-80) and all licensees operating up to 200 kHz above
channel 90 (*i.e.*, channels 91-130) would be protected.

For the licensee seeking to operate a fixed station at a power level of
500 watts ERP, protecting a multitude of Phase I, non-nationwide base
stations in its geographic area would be a difficult, but not impossible
task. This is because all Phase I licensees were initially authorized to
construct only one base station, and have now generally completed the
construction of their stations. However, protecting all affected Phase
II licensees and all affected Phase I nationwide licensees[^164] would,
realistically, be impossible. This is because, unlike Phase I
non-nationwide licensees, who have constructed a single base station
that must be protected, Phase II licensees and Phase I nationwide
licensees will be continually adding, relocating, and modifying stations
as they develop and implement their systems over the course of their
initial ten-year license period and possibly beyond that period. In
order not to restrict the development of such licensees\' systems, a
licensee seeking to operate a fixed station in the 221-222 MHz band at a
power level of 500 watts ERP would have to protect all possible sites in
an EA or Region where a given EA or Regional licensee might seek to
locate a base station, and all possible sites in the Nation where a
nationwide licensee might seek to locate a base station. Moreover, we
could not simply allow a licensee seeking to operate a 500 watt ERP
fixed station to only protect the already-constructed base stations of
affected licensees.[^165] To do so would deny affected licensees the
ability to locate future base stations at any and all available sites.

We conclude that the only manner in which a licensee could operate a
fixed station in the 221-222 MHz band at a power level of 500 watts ERP
without disrupting the operations of other 220 MHz licensees would be
for that licensee to gain the consent of all affected 220 MHz licensees
to operate such a station. We will therefore permit a licensee seeking
to operate fixed stations in the 221-222 MHz band at a power level of
500 watts ERP to seek a waiver of Section 90.729(b) of the Commission\'s
rules if the licensee obtains the consent for such operation from the
following licensees authorized on channels up to 200 kHz removed from
the channels of the licensee: (1) all nationwide licensees; (2) all
Phase II non-nationwide licensees that are authorized in an EA or Region
that is located within 6 km of the licensee\'s proposed fixed
station;[^166] (3) all Government nationwide users; and (4) all Phase I
non-nationwide licensees with a base station that is located within 6 km
of the licensee\'s proposed fixed station.[^167]

Finally, in addressing petitioners\' request to permit operations on the
220 MHz mobile channels at a power level of 500 watt ERP, we note
Glenayre\'s contention that limiting the mobile frequency power will
"preclude efficient one-way paging, especially for nationwide
licensees." SEA, in response, suggests that the "obvious application for
the mobile transmit frequency is as a response or \`talk-back\' channel
for two-way paging." In the *220 MHz Third Report and Order* the
Commission did not specify how the mobile channels in the 220 MHz band
would be used. They could be used as a response channel (as part of a
two-way paging system),[^168] or they could be utilized to provide 220
MHz licensees with a second one-way paging channel. We believe the
Commission\'s rules for operation on the mobile channels (*i.e.*,
limiting power to 50 watts ERP and antenna height to 7 meters HAAT),
will enable 220 MHz licensees who intend to operate paging systems to
use these channels to best meet their needs and the needs of their
customers --- whether this is to implement one-way or two-way paging
systems --- and will ensure that they do so without causing interference
to other licensees in the 220 MHz band.

**6.Allowable Power Limit for Nationwide Licensees**

Comtech and Glenayre petition the Commission to raise the allowable
power limit for the base stations of nationwide licensees.[^169]
Glenayre requests that the Commission permit nationwide licensees to
operate their base stations up to a limit of 1400 watts ERP, provided
that the transmitter is at least 5 km from a fixed adjacent channel
system, with systems within 5 km to be restricted to 500 watts ERP or
less, depending on distance, as provided in the Commission\'s existing
rules.[^170] Glenayre suggests the Commission could create a sliding
scale, similar to the sliding scale established in Section 90.729(a) of
the Commission\'s Rules, for reducing ERP to account for antenna
height.[^171] Comtech also requests that the maximum ERP be raised to
the 1400 watts permitted paging stations in the VHF band.[^172]

Comtech asks that power limitations imposed by Section 90.729 be
modified to reflect that nationwide licensees operate without co-channel
interference concerns.[^173] Both Glenayre and Comtech stress that
raising the permitted ERP is necessary for the competitive operation of
220 MHz service paging systems.[^174] Arch and PCIA support Glenayre\'s
and Comtech\'s proposal to increase the maximum ERP for 220 MHz service
nationwide paging base stations to VHF paging levels.[^175] Metricom
agrees, calling the ERP limit "artificial," and stating that the limit
requires the construction of more base stations, thus placing additional
and unnecessary costs on nationwide licensees.[^176]

In the *220 MHz Report and Order*, which established the 220 MHz
service, the Commission adopted technical rules for the 220 MHz service,
including a rule providing height-power restrictions for stations
operating in the 220 MHz band.[^177] In the *220 MHz Third Notice*, the
Commission did not seek comment with regard to the appropriateness of
this rule. Commenters in that proceeding, however, sought modification
of the rule with regard to height-power limitations for stations
operating in the 221-222 MHz band. Therefore, in the *220 MHz Third
Report and Order*, the Commission modified the rule based upon these
comments. Commenters, however, did not seek modification of the rule
with regard to height-power limitations for stations operating in the
220-221 MHz band, and the Commission did not address or modify these
height-power limitations. We therefore view this matter, as raised by
petitioners herein, as being beyond the scope of this reconsideration
proceeding. We do, however, believe that an increase in the allowable
power for nationwide licensees would be acceptable provided that
appropriate technical criteria are established to ensure that
interference does not occur to adjacent channel systems. We therefore
invite those parties seeking modification of the Commission\'s rules
regarding this matter to submit a petition for rulemaking in order to
change the allowable power limit and to develop such criteria.

**7.Modification of Phase I Non-Nationwide Licenses**

Phase I non-nationwide licensees were granted site-specific
authorizations. These licensees are authorized to transmit on specific
frequencies at a specific set of coordinates. Petitioners point out that
neither the *220 MHz Third Report and Order* nor the *220 MHz Second
Report and Order* provides a mechanism by which Phase I licensees may
modify their authorizations.[^178] Petitioners note that in the *220 MHz
Third Report and Order*, the Commission stated that Phase I
non-nationwide licensees will not be permitted to seek modification of
their authorizations to operate at a higher ERP or HAAT.[^179] SBT
contends that the Commission\'s position on modifications expresses far
more concern for future licensees than for incumbent licensees who are
currently providing service to the public.[^180] Petitioners also assert
that licensees must be permitted to make operational changes that are
necessary to maintain the viability of a station and are required in
order to compete successfully in the marketplace.[^181] Petitioners
therefore urge the Commission to adopt procedures for ongoing
modifications for Phase I licensees.[^182]

Several petitioners also urge us to permit Phase I licensees to modify
their systems as long as such modifications do not expand their service
contour.[^183] They note that this flexibility has been granted to
incumbents in other Part 90 services.[^184] SMR also asks that licensees
be permitted to modify their system configurations without prior
Commission approval, arguing that a similar rule has been approved in
the 800 MHz and 900 MHz services.[^185] In addition, AMTA requests that
we permit Phase I licensees to convert overlapping incumbent systems
into a geographic license, as is currently allowed for incumbent 800 MHz
and 900 MHz authorizations.[^186]

We recognize that licensed sites may become unusable for a variety of
reasons.[^187] We are also persuaded by petitioners\' arguments that, in
order to maintain the economic and technical viability of a licensee\'s
220 MHz service, Phase I incumbent licensees should be permitted to
modify their authorizations (*e.g.*, to relocate their base station, to
change the ERP or HAAT of their base station) as long as doing so does
not expand their service contour, as we have defined that contour in
this proceeding. Such licensees will therefore be permitted to make
those modifications to their authorizations that do not expand their 38
dBu service contour.[^188] Phase I licensees will also be able to add
additional transmitters within their 38 dBu service contour without
prior authorization from the Commission, *e.g*.*,* to fill in "dead
spots" in coverage or to reconfigure their systems to increase capacity
within their service area, so long as signals from such transmitters do
not expand their 38 dBu service contour.

We note that a Phase I licensee who relocates under the criteria set
forth in the *220 MHz Second Report and Order* (and as further
considered below in this Order)[^189] must first establish its 38 dBu
service contour at its new base station site in accordance with the
Commission\'s rules for relocation before it can take advantage of the
flexibility provided in this section. Phase I licensees, however, will
be required to notify the Commission of any changes in technical
parameters or additional stations constructed through a minor
modification of their license. These modification applications will not
be subject to public notice and petition to deny provisions in the
Commission\'s rules, or mutually exclusive applications.

As discussed in paras. -, *supra*, the Commission\'s Rules require
geographic separation between Phase I base stations transmitting on the
upper 40 channels in the 220-221 MHz band (*i.e.*, channels 161-200,
referred to in the Commission\'s rules as "Sub-band B") and Phase I base
stations receiving on the lower 40 channels in the 221-222 MHz band
(*i.e.*, channels 1-40, referred to in the Commission\'s rules as
"Sub-band A"). Also, as indicated *supra*, in the *220 MHz Third Report
and Order*, the Commission\'s Rules require Phase II licensees
transmitting on Sub-band B channels to provide geographic protection to
Phase I licensees operating on Sub-band A channels;[^190] and require
Phase II licensees operating on Sub-band B and Sub-band A channels to
coordinate the location of their base stations with one another to avoid
interference.[^191] Our decision herein to permit Phase I,
non-nationwide licensees to modify their authorizations to add
additional transmitter sites or change the operating parameters or
location of their base station, however, raises interference concerns if
such stations are authorized to licensees operating in Sub-bands A and
B.

First, with respect to potential interference among Phase I licensees,
we believe that Phase I licensees authorized on Sub-bands A or B
channels that may seek to add additional transmitter sites or change the
operating parameters or location of their base station should be
required to coordinate such actions in a manner similar to the way that
Phase II licensees authorized on Sub-bands A and B channels must
coordinate the location of their base stations under Section 90.723(f)
of the Commission\'s Rules. Thus, to ensure that appropriate geographic
separations are maintained if licensees authorized on Sub-bands A or B
channels seek modifications to add additional transmitter sites or
change the operating parameters or location of their base station, we
will require licensees authorized on Sub-bands A or B channels to
coordinate such actions with one another to avoid interference. These
licensees must include with their application for a minor modification
of their authorization,[^192] a certification that the station has been
appropriately coordinated.

Second, under Section 90.723(e) we currently require Phase II licensees
authorized on Sub-band B channels, in locating their base stations, to
provide geographic protection to the base stations of Phase I licensees
authorized on Sub-band A channels. However, we do not believe that it
would be appropriate to require a Phase II licensee authorized on
Sub-band B, as it constructs its EA or Regional systems, to have to
protect receivers associated with additional transmitter sites that a
Phase I licensee authorized on Sub-band A might add within its service
contour at any time in the future. We conclude, therefore, that a Phase
II licensee authorized on Sub-band B channels should continue to provide
geographic protection to Phase I licensees authorized on Sub-band A, but
only to the base station of such licensees, as authorized at the time
the Phase II, Sub-band B licensee seeks to construct its station.

Third, under our existing rules, there are no protection or coordination
requirements among Phase I licensees authorized on Sub-band B and Phase
II licensees authorized on Sub-band A. This is because Phase II
licensees authorized on Sub-band A, in constructing their systems, would
be aware of the location of the base stations of Phase I licensees on
Sub-band B and would, in all likelihood, avoid placing their base
stations in locations where such Phase I, Sub-band B stations might
cause interference. However, if Phase I, Sub-band B licensees are
permitted to add additional transmitter sites or modify the operating
parameters or location of their base station at any time in the future,
such actions could cause unforeseen interference to the base stations of
Phase II, Sub-band A licensees. We will therefore require Phase I,
Sub-band B licensees, in adding additional transmitter sites or
modifying the operating parameters or location of their base station, to
coordinate such actions with Phase II licensees authorized on Sub-band
A. Phase I, Sub-band B licensees must include with their application for
a minor modification of their authorization,[^193] a certification that
the station has been appropriately coordinated.

In addition, we will allow Phase I 220 MHz licensees to convert their
site-by-site licenses to a single license authorizing operations
throughout the incumbents\' contiguous and overlapping 38 dBu service
contours of their constructed multiple sites. Phase I licensees seeking
such reissued licenses must make a one-time filing of specific
information for each of their external base station sites to assist the
Commission staff in updating the Commission\'s database. We also will
require evidence that such facilities are constructed and placed in
operation and that, by operation of the Commission\'s rules, no other
licensee would be able to use these channels within this geographic
area. We note that facilities added or modified that do not extend the
38 dBu service contour will not require prior approval under this
procedure.

We believe this decision strikes a fair balance between the interests of
incumbents and Phase II licensees. Under our ruling, a Phase I licensee
will be free to maintain full operational flexibility in providing
service within its own service contour, while ensuring that the
licensee\'s use of the spectrum does not negatively impact other 220 MHz
operations.

Finally, we note that SMR contends that Section 309(j)(6)(D) of the
Communications Act[^194] prohibits the Commission from permitting Phase
II licensees to modify their systems unless Phase I licensees are given
the same right.[^195] SMR asserts that we are therefore compelled to
permit Phase I licensees full flexibility to modify their licenses so
long as they remain within their contour.[^196]

Because we have decided to permit Phase I licensees to modify their
authorizations it is unnecessary for us to reach a decision on the
merits of this issue in the present proceeding.

**8.Substantial Service**

To promote operational flexibility for 220 MHz licensees, and because
the Commission recognizes that certain 220 MHz service offerings, such
as fixed, point-to-point operations, might not lend themselves to
compliance with a construction requirement based on the traditional
design of private land mobile radio systems (*i.e.*, the construction
and operation of single, high-powered base stations providing signal
coverage over an extended area), the *220 MHz Third Report and Order*
provides Phase II nationwide 220 MHz licensees with the alternative of
meeting their construction requirements by demonstrating the provision
of appropriate levels of substantial service to the public at the
prescribed 5-year and 10-year construction benchmarks.[^197] The option
of meeting the substantial service requirement is also available to EA
and Regional licensees.[^198] The Commission decided not to adopt a
particular measure of substantial service for such licensees, but rather
to consider such showings on a case-by-case basis.[^199] In the
Commission\'s rules, substantial service is defined as service that is
sound, favorable, and substantially above a level of mediocre service
that just might minimally warrant renewal.[^200]

Metricom requests that the Commission specify the criteria that will be
used to determine whether licensees have provided substantial service,
and reminds the Commission that licensees would risk the loss of their
licenses if their understanding of the definition of substantial service
differs from that of the Commission.[^201] Metricom argues that the
imprecision of the substantial service requirement makes it difficult
for licensees to determine whether they meet the substantial service
requirement, and that elementary fairness requires clarity in such an
important a matter.[^202] Comtech calls the substantial service
requirement "vague," and joins Metricom in seeking clarification.[^203]

We disagree with the view of the substantial service requirement
advanced by Comtech and Metricom that more precision is necessary in the
definition. The Commission has found the substantial service standard
useful in several contexts, including paging,[^204] Personal
Communications Services,[^205] General Wireless Communications
Service,[^206] Wireless Communications Service,[^207] and Local
Multipoint Distribution Service.[^208] In the case of Private Land
Mobile Radio Service, the Commission has used the substantial service
standard in regulations governing the 800 MHz and 900 MHz SMR
bands[^209] as well as the 220 MHz band.[^210]

We refer parties who seek clarification of the standard beyond the
definition in the Commission\'s rules to the Commission\'s stated
purpose in applying the standard to 220 MHz service (recognizing the
needs of licensees with service offerings such as fixed, point-to-point
operations),[^211] and to previous examples the Commission has given of
substantial service.[^212] Any further elaboration of the standard at
this time would, we believe, only limit its flexibility and usefulness
to licensees and their customers.

**9.Spectrum Efficiency Standard**

In the *220 MHz Third Report and Order*, the Commission concluded that
Phase I and Phase II licensees who combine contiguous 5 kHz channels in
order to operate on channels wider than 5 kHz would be required to meet
the following spectrum efficiency standard: for voice communications, a
licensee is required to employ equipment that provides at least one
voice channel per 5 kHz of channel bandwidth; for data communications, a
licensee is required to employ equipment that operates at a data rate of
at least 4,800 bits per second per 5 kHz of channel bandwidth.[^213] The
standard is implemented through the Commission\'s equipment type
acceptance process.[^214]

To avoid inadvertently discouraging new, innovative, and efficient
technologies, the Commission provided manufacturers with an extra
measure of flexibility: type acceptance for equipment not meeting the
voice or data efficiency standard could be obtained if (1) the
manufacturer submitted a technical analysis with its application for
type acceptance demonstrating that the equipment would provide more
spectral efficiency than is required by the spectrum efficiency rule;
and (2) this technical analysis was deemed satisfactory by the
Commission\'s Equipment Authorization Division.[^215] Licensees would be
permitted to employ equipment that failed to meet the spectrum
efficiency standard only if such equipment had been thus type
accepted.[^216]

The Commission explained that the efficiency standard furthered one of
the Commission\'s principal goals in establishing the 220-222 MHz
service, which was to encourage the development of spectrally efficient
technologies.[^217] While the Commission did not disagree with the
suggestion that the market would supply licensees with the incentive to
use their spectrum efficiently, the Commission nevertheless believed
that adoption of a mandatory efficiency standard was an appropriate and
effective means of ensuring that licensees aggregating contiguous
channels would operate efficiently.[^218] In response to the claim that
the standard could prevent the provision of certain services in the
220-222 MHz band, the Commission emphasized that its purpose was not to
prevent the offering of services, but rather to spur, through the
adoption of the standard, the development of spectrally-efficient
technologies in any number of other wireless communications services
that might eventually be provided in the band.[^219]

The Commission further decided to retain the standard only through
December 31, 2001.[^220] By allowing the standard to then expire, the
Commission intended to balance its goal of stimulating the development
of spectrally efficient technology against its desire to grant licensees
flexibility and to rely on market forces.[^221] The Commission also
expressed its confidence that by the time the standard expired, the
technology of wireless equipment would have surpassed the requirements
of the standard, and that there would no longer be a need to mandate
such a standard for the 220-222 MHz band.[^222]

Comtech petitions the Commission to exempt paging from the 220 MHz
efficiency standard.[^223] Comtech states that it is unaware of any
manufacturer investigating one-way paging transmitters capable of
meeting the efficiency standard, and that the necessary research and
development to meet the standard would prevent the commercial
availability of such equipment before the standard sunsets in
2002.[^224] Arch and PCIA concur with Comtech that the efficiency
standard is so stringent that it effectively negates the Commission\'s
decision to allow paging in the 220 MHz band.[^225] Comtech, in arguing
for removal of the spectrum efficiency standard, contends that Comtech
itself, rather than the Commission, can best ensure the most intensive
use of Comtech\'s 25 kHz of nationwide spectrum.[^226] Arch states that
6,400 bits per second in a 25 kHz channel "pushes the limits of
practical radio frequency network design for paging using presently
available technology."[^227]

Glenayre agrees that no equipment now exists that meets the
Commission\'s 220 MHz efficiency standard for data.[^228] Predicting
that "equipment meeting the standard will only become available at about
the time the standard is eliminated," Glenayre cautions that the current
lack of acceptable data equipment leaves 220 MHz licensees with three
choices: to forego data, and implement voice equipment only; to
construct voice equipment to meet construction deadlines, and construct
data equipment separately when data equipment that meets the standard
becomes available; or to delay all construction until acceptable data
equipment is on the market.[^229] Rather than exempting paging
operations, as Comtech requests, Glenayre proposes that the Commission
resolve the contradiction by introducing an achievable standard now that
would become progressively more strict.[^230] Specifically, Glenayre
advocates the adoption, through the Commission\'s type acceptance
process, of a standard of 0.256 bps/Hz immediately; 1 bps/Hz by December
31, 2001, and 2 bps/Hz by December 31, 2006.[^231] Glenayre suggests the
standard could be eliminated by December 31, 2011.[^232]

PERS agrees with Glenayre that strengthening the standard over time, and
thus requiring more efficient technologies as they became available,
would better serve the public interest.[^233] Metricom, however, views
Glenayre\'s proposal as unnecessary and burdensome to licensees, and
argues that licensees would have to replace their equipment to keep up
with the standard\'s increasing stringency.[^234] In opposing the
imposition of any efficiency standard, Metricom argues that the market
should dictate the type of equipment to be employed.[^235] Arch agrees
with Metricom that Glenayre\'s proposal would artificially require
paging operators to upgrade their equipment.[^236]

Glenayre also petitions the Commission to conform the 220 MHz band
spectrum efficiency standard to the 4,800 bits per second per 6.25 kHz
channel standard the Commission adopted in the Refarming
proceeding.[^237] Glenayre argues that this step would offer the benefit
of allowing the same equipment to be used in both bands.[^238] In a
slight variation of this proposal, Rush compares the 220 MHz efficiency
standard (4,800 bps per 5 kHz channel) to the Refarming efficiency
standard (4,800 bps in a 6.25 kHz channel), and requests that the 220
MHz standard be reduced to 3,840 bits per second, which would produce a
consistent .768 b/s/Hz rate between the bands.[^239] Such an adjustment,
according to Rush, could enhance the potential for equipment development
in both bands.[^240]

INTEK, arguing in favor of the spectrum efficiency standard, reminds the
Commission that, from its inception, the 220 MHz band has been
especially dedicated to fostering spectrally-efficient narrowband
technologies, and that prior to the *220 MHz Third Report and Order,*
only narrowband equipment operating on 5 kHz channels was permitted in
the 220 MHz band.[^241] INTEK considers that in the *220 MHz Third
Report and Order*, the Commission struck a "careful balancing of
equities" which permits the aggregation of contiguous 5 kHz channels,
and allows licensees to conduct paging and fixed operations on a primary
basis, but also imposes a temporary efficiency standard on licensees
using non-narrowband systems on their aggregated channels.[^242]

This balance, according to INTEK, accommodates the licensees\' desire
for flexibility, and yet remains true to the narrowband character of the
band, and to the equipment manufacturers who responded to the
Commission\'s creation of a unique test-bed for narrowband
technologies.[^243] INTEK also maintains that Phase I licensees,
including Rush and Comtech, applied for licenses in the expectation that
they would be restricted to the use of 5 kHz narrowband equipment.[^244]

INTEK and SEA dispute the argument that paging operations should be made
exempt from the efficiency standard because no suitable equipment is
available.[^245] INTEK points out that, until the *220 MHz Third Report
and Order*, paging was restricted in the 220 MHz band.[^246] Therefore,
INTEK maintains, any claim that manufacturers will be unable to satisfy
220 MHz band licensees\' equipment needs cannot be other than premature
and speculative, the more so in light of the prodigious increases in
data-rate efficiency over the past five years.[^247] SEA views Inflexion
technology as indicative of this trend, and argues that application of
the standard will encourage further development.[^248] SEA suggests that
parties opposed to applying the standard to paging do not sufficiently
appreciate the flexibility provided by Section 90.203(k)(2) of the
Commission\'s Rules, by which the Commission retains the flexibility to
type-accept equipment that does not meet the letter of the
standard.[^249]

Comtech maintains that any reliance on Motorola\'s Inflexion system is
misplaced because Inflexion is a two-way technology, and the
Commission\'s rules specifically permit only one-way paging on 220 MHz
channels.[^250] Moreover, Comtech maintains, Inflexion requires a
minimum of 50 kHz of spectrum, which very few 220 MHz licensees will
possess.[^251] Comtech further states that INTEK\'s own 220 MHz band
data equipment is too large and heavy to be commercially acceptable for
paging, and that, in contrast to one-way paging receivers, INTEK\'s
two-way equipment can request re-transmission of information received
with errors.[^252]

We agree with petitioners who argue that our goal of making the 220 MHz
service rules more flexible by permitting paging on a primary basis, and
by permitting the aggregation of contiguous channels, is threatened by
evidence presented in the record of this reconsideration proceeding that
paging equipment is not presently capable of meeting the efficiency
standard for the band. This concern, coupled with our view that, since
adoption of the *220 MHz Third Report and Order*, circumstances have
developed in a manner that suggests that 220 MHz spectrum will be used
efficiently by service providers regardless of whether we impose any
spectrum efficiency standard,[^253] has led us to revise the
Commission\'s rules to eliminate the spectrum efficiency standard for
the 220 MHz service.

While we are convinced by the showings in the record that carriers
seeking to offer one-way paging services would be impaired in their
ability to take advantage of the licensing flexibility introduced in the
*220 MHz Third Report and Order* because of the requirements of the
spectrum efficiency standard, there are two reasons why we are not
persuaded by the claim of some petitioners that the best solution to
this problem is to exempt paging carriers from the standard.

First, these petitioners offer what is, at best, a partial cure for the
problem illuminated in the record, which is tailored to address their
particular interests but which ignores our overall policy objectives.
The Commission indicated in the *220 MHz Third Report and Order* that a
spectrum efficiency standard would not prevent the offering of services,
but would spur the development of spectrum-efficient technologies.[^254]
The difficulty with the approach proposed by the petitioners is that, in
singling out paging services for special treatment while leaving the
standard in place, their solution would have the potential effect of
impeding the introduction and deployment of other services demanded by
consumers that use available equipment that does not comply with the
strictures of the efficiency standard.

The Metricom case illustrates the anomalous consequences of pursuing the
solution posed by the petitioners. Metricom, a relatively new entrant in
the wireless service marketplace,[^255] indicates that it is interested
in employing 220 MHz frequencies to provide innovative non-voice
services to the public.[^256] Although Metricom does not petition for
removal of the efficiency standard, it *does* observe --- in arguing
against the Glenayre proposal for a "sliding scale" efficiency standard
that would be made more lenient now but more stringent in future
years[^257] --- that it "disagrees with the imposition of *any*
efficiency standard because Metricom believes that the marketplace
should dictate the type of equipment to be employed, and the Commission
should not foreclose new technological advances that may, in fact, yield
greater efficiencies."[^258]

We agree with Metricom. We do not believe it is prudent to leave the
spectrum efficiency standard in place in the face of evidence that it
could impair technological advances while also making it more difficult
for carriers to take advantage of licensing flexibility to meet consumer
demand. We also conclude that there is not a rational basis for avoiding
this problem for carriers choosing to offer one type of service while
permitting the problem to stand as a barrier to carriers offering other
services.

Second, our elimination of the efficiency standard, while avoiding the
policy deficiencies that are inherent in an exemption limited to one
class of carriers, grants the relief sought by the petitioners. The fact
that we have not chosen petitioners\' specific solution --- for the
reasons we have presented --- in no way diminishes the fact that the
petitioners are aided by our decision.

As we discussed above, the Commission neither foresaw nor intended that
the efficiency standard would effectively bar the offering of paging or
other services on the 220 MHz band.[^259] The record before us, however,
has convinced us that the spectrum efficiency standard impedes those
licensees desiring to take advantage of the flexibility that we intended
to establish with the *220 MHz Third Report and Order*. Retaining the
efficiency standard could also block near-term entry into the 220 MHz
market by equipment manufacturers not currently in this market, as well
as the entry of different types of service providers, including small
businesses.[^260] We also continue to believe that market pressures will
encourage efficient use of spectrum, and that technological innovation
in the coming years will surpass the efficiency level of the adopted
standard. These twin engines of progress seem to us a more reliable and
reasonable method of promoting spectrum efficiency in the 220 MHz band
than an efficiency standard that will soon expire in any case.

In this regard, we believe it is instructive to view the efficiency
standard in the historical context of the Commission\'s development of
licensing rules for the 220 MHz service and, in doing so, to illustrate
why the standard is not necessary to ensure realization of the goals
originally established by the Commission in its design of the licensing
parameters for the service. "One of \[the Commission\'s\] principal
goals in establishing the 220-222 MHz band was to encourage the
development of spectrally efficient technologies."[^261] In 1991, the
Commission chose to pursue this goal, in the *220 MHz Report and Order,*
by adopting service rules for the assignment of 200 five kHz channel
pairs in the 220-222 MHz band, with mutually exclusive applications
assigned through random selection procedures.[^262]

The Commission\'s objective was to foster the development of efficient
technology through a channelization plan that required equipment capable
of utilizing extremely small slices of spectrum. The Commission\'s
decision to promote spectrum efficiency through its channelization plan
was, in part, the product of the Commission\'s awareness that the method
of awarding licenses --- the random selection process --- could not
serve as an effective tool for advancing this goal. The Commission, of
course, did not at this time have statutory authority to employ
competitive bidding as a means of awarding 220 MHz licenses.

In the *220 MHz Third Report and Order,* the Commission sought to
combine the objectives of spectrum efficiency and flexible licensing by
allowing paging to be offered in the 220 MHz band on a primary basis, by
permitting the aggregation of contiguous 5 kHz channels in the band, and
also by imposing spectrum efficiency standards intended to replicate the
efficiencies demanded by 5 kHz operations.[^263] However, as the
discussion above suggests, we are now convinced that assigning licenses
based on competitive bidding creates incentives for the promotion of
spectrum efficiency. In view of the incentives for spectrum efficiency
produced by competitive bidding, evidence presented in the record and
discussed above that paging cannot be provided consistent with the
efficiency standard, and developments that have occurred since the
release of the *220 MHz Third Report and Order*, we now believe it is
appropriate to rely on the competitive bidding process and marketplace
forces to ensure that 220 MHz spectrum will be employed efficiently,
even where contiguous 5 kHz channels are aggregated.

Unlike the comparative hearing and random selection processes that were
the only means by which the Commission could award licenses at the time
it established its licensing framework for the 220 MHz service, the
Commission has found the competitive bidding process to be an effective
tool for promoting efficient spectrum use. The Commission has determined
that the auction process tends:[^264]

to reinforce the desire of licensees to make efficient and intensive use
of . . . spectrum. Auctions make explicit what others are willing to pay
to use the spectrum, and the licensees\' need to recoup the
out‑of‑pocket expenditure for a license should provide additional
motivation to get the most value out of the spectrum.

In fact, the Commission has found that "the system of competitive
bidding . . . will lead to the issuance of licenses to those parties who
value the licenses most highly and who thus can be expected to make
efficient and intensive use of the spectrum, as contemplated by Section
309(j)(3)(D) \[of the Communications Act\]."[^265]

Moreover, in services where the Commission has used competitive bidding
to award licenses, there is evidence that licensees are using spectrally
efficient technologies, despite the decision of the Commission not to
impose spectrum efficiency standards. Since 1994, for example, the
Commission has granted more than 2,000 licenses for new PCS services,
which has contributed to the nationwide deployment of new technologies.
Although no efficiency standards were imposed by the Commission in
connection with the licensing and operation of PCS services, two widely
used digital broadband PCS technologies are achieving spectrum
efficiencies that surpass analog cellular technology. Both Code Division
Multiple Access (CDMA) and Time Division Multiple Access (TDMA) are
significantly more efficient than analog cellular.

In addition, in services (such as cellular services) that were not
subject to auctions but that compete with broadband PCS, many licensees
are replacing older, less efficient analog technologies with these
digital technologies. For example, AT&T has started to switch its
cellular analog services to TDMA digital technology.

A further reason for our decision to eliminate the spectrum efficiency
standard is the fact that, since our adoption of the *220 MHz Third
Report and Order*, circumstances relating to the development and
utilization of the band have continued to change in a manner that
suggests that 220 MHz spectrum will be used efficiently by service
providers, regardless of whether we impose a spectrum efficiency
standard. These circumstances have manifested themselves in two
respects. First, subscribership growth, which is driving construction of
facilities and deployment of equipment in the band, has continued at a
pace that leads us to conclude that the efficient utilization of 5 kHz
channels in the band is now well-established.[^266] To take one example,
an INTEK subsidiary operating 220 MHz business radio systems "recorded a
major increase in subscribers during the second fiscal quarter ended
March 31, 1998."[^267] The widespread use of spectrally efficient
equipment, which has gained momentum since the adoption of the *220 MHz
Third Report and Order*, suggests that the Commission\'s original
objectives in promoting efficient utilization of spectrum in the band
have been largely successful.

Second, the Commission has acted in a related rulemaking proceeding to
spur flexible use of the band in a manner that promotes further growth
in the utilization of spectrally efficient 5 kHz channels. In the
*Forty-Mile Rule Order,*[^268] the Commission eliminated the requirement
that a licensee could not hold more than one channel or channel group
within a 64-kilometer (40-mile) area unless that licensee could
demonstrate that its communications needs warranted additional channels
or channel groups. In taking this action, the Commission concluded that
"our service rules will foster efficient spectrum use and discourage
uneconomic warehousing by providing licensees with the opportunity to
provide a variety of fixed, mobile, and paging services in response to
changing market conditions."[^269] The Commission also determined
that:[^270]

Under the existing 40‑mile rule, a Phase I licensee would have to forego
the pursuit of additional customer markets until its initial system was
fully loaded, even if the additional channels themselves were partially
or fully loaded. Removing the 40‑mile rule will allow Phase I licensees
to acquire additional licenses with which to implement future service
plans. Keeping the 40‑mile rule with respect to Phase I licensees could
unnecessarily interfere with the ability of licensees possessing both
Phase I and Phase II licenses to utilize their licenses in a unified
fashion.

Thus, we conclude that, subsequent to our adoption of the *220 MHz Third
Report and Order*, we have acted to ensure efficient use of 220 MHz
spectrum. In particular, we believe our decision in the *Forty-Mile Rule
Order* has stimulated deployment of spectrally efficient 5 kHz
equipment, a process which was already well under way at the time we
made that decision.[^271]

We therefore conclude that the best public policy (from both a spectrum
management and competitive point of view) is to allow 220 MHz service
providers to make their own decisions about whether they will build the
narrowband systems that are marketed by certain equipment manufacturers,
or whether their business plans would be better served through the
purchase of alternative equipment with other functionalities.
Elimination of the standard preserves the Commission policy of
maximizing flexible use of spectrum --- carriers planning to offer
one-way paging or other services on aggregated channels would not be
stymied by the current lack of equipment that meets the standard.

This policy is particularly important for 220 MHz spectrum because small
businesses may be prominent players in developing this spectrum, and
these businesses would directly benefit from a flexible spectrum use
policy that enables them to respond efficiently to marketplace demand.
Given the relatively small amount of spectrum assigned in a 220 MHz
license, we think it is reasonable to expect that acquisition of the 220
MHz Phase II licenses may be relatively affordable, and therefore this
service may be particularly attractive to small businesses.[^272] Since
the Commission has chosen to extend service flexibility to licensees
acquiring licenses in other spectrum auctions,[^273] we see no sound
policy basis for retaining a spectrum efficiency standard that will
restrict such flexibility in the 220 MHz band.

Although we note that no party has petitioned directly for this result,
we do not believe that any 220 MHz licensee or applicant will be harmed
by this grant of additional flexibility.[^274] If we were to grant
petitioners\' requests to exempt paging from the spectrum efficiency
standard, the resulting change in the Commission\'s existing rules
would, we believe, hardly be less extensive than elimination of the
standard. Either change would have implications for the business
decisions of parties interested in obtaining 220 MHz licenses,
particularly licenses with contiguous channel assignments. While we have
found it advisable to eliminate the standard in order to preserve and
promote our goal of fostering flexible use of the band, we are confident
that market forces and consumer demand will be adequate in driving
efficient use of the spectrum.

Our decision should not be construed as a lessening of our commitment to
using this band to stimulate innovative narrowband technology. Moreover,
eliminating the spectrum efficiency standard for combined contiguous
channels marks no major shift in Commission policies regarding
utilization of the 220 MHz band. Because the efficiency standard applies
only to those licensees who may combine contiguous 5 kHz channels to
form larger channels, it has only limited effect on the majority of 220
MHz service licensees whose channels are *not* contiguous. The market
for efficient narrowband 5 kHz equipment will remain strong, in our
view, because most 220 MHz service licenses do not consist of contiguous
channels and, thus, service providers will look for reasonably priced,
well-designed equipment capable of utilizing 5 kHz channels. We
therefore believe that the actions we are taking here will not adversely
affect the development and deployment of narrowband equipment.

Turning to other arguments made in the record, we do not concur with
SEA\'s suggestion that licensees unable to find paging equipment that
meets the standard should turn to Section 90.203(k)(2) of the
Commission\'s Rules for relief.[^275] Section 90.203(k)(2) provides for
type acceptance of transmitters that do not meet the efficiency
standard, but only if such transmitters are accompanied by a technical
analysis demonstrating that they will provide more spectral efficiency
than would be provided by use of the spectrum efficiency standard.[^276]
Developments since the time of our adoption of the alternative
efficiency showing, however, have made us less confident that equipment
manufacturers or service providers are in a position to make the
requisite technical showing. First, no party in this reconsideration
proceeding has suggested any particular technical analysis as an
alternative to the bits-per-second, per 5 kHz channel, measurement used
in the efficiency standard. Second, ComTech, in a petition currently
pending before the Commission seeking waiver of the efficiency
standard,[^277] does not advance any technical analysis in support of
the waiver request, arguing instead that "a 25 kHz paging system that
fails the data efficiency standard could still service several hundred
thousand customers . . . ."[^278]

Furthermore, no party has suggested that equipment that would be capable
of achieving superior spectrum efficiency, if it were evaluated by some
alternative technical analysis, is either currently or imminently
available. Therefore, we believe that there is no reasonable basis upon
which to conclude that manufacturers or licensees could rely on Section
90.203(k)(2) standard to provide an adequate opportunity for paging
equipment to be type accepted for the 220-222 MHz band.

We also believe that the alternative mechanism contained in Section
90.203(k)(2) could be problematic because it can serve to competitively
disadvantage carriers who are required to wait until an alternative
showing is accepted by the Commission. The uncertainties associated with
whether the Commission will act to grant the alternative showing,
together with the time and expense that accompany pursuit of an
alternative showing, contribute to this disadvantage. This latter
concern could be ameliorated by the opportunity we have provided to
equipment manufacturers to seek prospective advice regarding whether
equipment they plan to develop would meet the efficiency standard.[^279]
It remains the case, however, that our principal concerns[^280] would
not be mitigated by any invocation of this mechanism for prospective
advice.

We also conclude that allowing the spectrum efficiency standard to
sunset would not provide a sufficient solution to the problems with the
efficiency standard that have been raised in the record. We believe that
this is especially true in the case of small businesses that may be
interested in competing for spectrum in the 220 MHz band and taking
advantage of the flexible spectrum use that the Commission\'s rules
permit for the band. We think it would be highly unlikely that
businesses would be able to change equipment choices when little
depreciation of the equipment\'s value would have occurred by the end of
2001. Thus, companies intending to aggregate channels would either be
forced to acquire the spectrum now through the competitive bidding
process an then "warehouse" the spectrum until termination of the
standard, at which time they could invest in equipment designed to
provide services such as paging on the aggregated channels, or they
could operate on the spectrum now through the deployment of 5 kHz
equipment, and then change out that equipment after the termination of
the standard, notwithstanding the depreciation problems this would pose,
in order to utilize aggregated channels. Neither choice seems very
attractive, especially for small businesses.

With regard to INTEK\'s assertion that the Commission\'s goal in this
proceeding has been to achieve a "careful balancing of equities" among
competing carriers and manufacturers, we would insist that our primary
goal in this or any proceeding is to formulate sensible policies that
promote the public interest. To the extent that maintaining the 220 MHz
spectrum efficiency standard has the effect of denying licensees the
operational flexibility we provided them in the *220 MHz Third Report
and Order*, we find that the standard satisfies this test, and we have
determined to remove the standard on that basis.[^281]

Although most of the debate in the record has focused on the standard
for data, we are also eliminating the standard for voice. We can discern
no reasonable legal or policy basis to make a distinction with respect
to the application of a spectrum efficiency standard. Companies desiring
to make innovative use of this spectrum for purposes other than paging
will likewise be restricted in their ability to do so by a spectrum
efficiency standard. Elimination of the standard will grant licensees
seeking to provide voice services comparable flexibility to employ the
type of technology that best meets their needs. As with 220 MHz
licensees that provide data services, we are confident that licensees
providing voice services will seek to ensure the success of their
business plans by using the most spectrally efficient technologies to
serve the maximum number of customers.

With regard to other related arguments raised in the record, we disagree
with Glenayre\'s suggestion that we adopt a lenient standard that would
become stricter over time.[^282] If a stricter standard were phased in,
and operators were permitted to continue using equipment they had
acquired under the early, more lenient standard, the later standard
would probably have little effect. In addition, the further a spectrum
efficiency standard for this band stretches into the future, the more
difficult judging its usefulness and appropriateness becomes. As we have
stated, we believe business considerations are sufficient to induce 220
MHz band licensees to choose spectrally efficient equipment, and it is
not our intention to regulate licensees more closely than necessary.

In addition, we decline to adopt Rush\'s and Glenayre\'s proposal to
borrow the efficiency standard from the Refarming proceeding and apply
it to the 220 MHz band.[^283] Commenters are correct that the Refarming
policy was designed in the context of a long-established, congested band
with much embedded equipment.[^284] The 220 MHz band --- a small sector
of the radio spectrum, clear of incumbents using older, inefficient
technology, in which the Commission has attempted to foster
technological innovation --- presents quite different circumstances and
concerns. We conclude that the argument that application of an identical
standard would boost equipment development in both bands, while
superficially appealing, offers little benefit. Applying only to
aggregated, contiguous channels, and expiring in 2001, the 220 MHz
standard touches too few licensees for too short a time to significantly
increase equipment development for the refarmed bands. Thus, we are not
persuaded that conformance of the two standards would significantly
promote the goals of either docket. We also note that nothing in the
Refarming proceeding would preclude the use of 5 kHz equipment in
refarmed bands.

**10.Construction Requirements in Section 90.769 of**

**Commission\'s Rules**

In the *220 MHz Third Report and Order* the Commission established
specific geographic or population-based service requirements that a
nationwide Phase II licensee must satisfy by the end of 5- and 10-year
benchmarks.[^285] Comtech and Global seek clarification that Section
90.769 of the Commission\'s Rules, which establishes these construction
benchmarks for Phase II nationwide licensees, does not apply to Phase I
nationwide licensees.[^286]

The discussion of the construction requirements in the *220 MHz Third
Report and Order* for nationwide 220 MHz services clearly deals with the
construction requirements that will be imposed on Phase II nationwide
licensees.[^287] In addition, the Commission added a heading to the
Commission\'s Rules following Section 90.757 which reads: "[policies
governing the licensing and use of phase ii ea, regional and
nationwide]{.smallcaps}

[systems]{.smallcaps}."[^288] In order to avoid any confusion on the
part of Phase I licensees, however, we clarify that Section 90.769 of
the Commission\'s Rules applies only to Phase II nationwide licensees
and not to Phase I nationwide licensees and will amend the title of
Section 90.769 accordingly.

**11.Return of Pending Nationwide 220 MHz Service Applications**

The Commission indicated in the *Third Notice* that it had not yet
requested the amending information necessary to process the 33 pending
Phase I applications for nationwide, non-commercial channels.[^289] In
the *Third Notice* the Commission therefore sought comment on three
different means by which the Commission could address the pending
applications.[^290]

After considering the advantages and disadvantages of each of the
proposals for handling the 33 pending Phase I nationwide, non-commercial
applications, the Commission concluded, in the *220 MHz Third Report and
Order*, that it was in the public interest to return the pending
applications and the appropriate filing fees.[^291] National points out,
however, that the pertinent ordering clause in the *220 MHz Third Report
and Order* states "that all pending nationwide . . . 220 MHz
applications, together with the appropriate filing fees, will be
returned to applicants, without prejudice."[^292] National seeks partial
reconsideration or clarification that the language in the ordering
clause of the *220 MHz Third Report and Order* applies only to pending
non-commercial, Phase I nationwide licenses and does not apply to any
Phase I commercial, nationwide license application that may still be
pending.[^293]

The Commission\'s discussion and decision dealing with the return of 220
MHz pending nationwide applications in the *220 MHz Third Report and
Order* dealt only with applications for non-commercial, nationwide
licenses and did not include a consideration of pending commercial,
nationwide 220 MHz applications.[^294] We therefore take this
opportunity to clarify that the language in the ordering clause
(paragraph 345 of the *220 MHz Third Report and Order*) did not apply to
the then pending commercial, nationwide 220 MHz applications. We note,
however, that the applications for nationwide, commercial 220 MHz
licenses have since been dismissed.[^295]

**12.Acquisition of Multiple Nationwide Licenses**

In the *220 MHz Third Report and Order*, the Commission decided not to
impose any limit on the number of Phase II nationwide channel blocks
that a licensee may acquire.[^296] Comtech asks that the Commission
amend its rules to permit entities to obtain more than one Phase I
nationwide authorization.[^297]

In the *Forty-Mile Rule Order*, which was adopted after Comtech filed
its petition, the Commission repealed Section 90.739(a) of the
Commission\'s Rules for all nationwide and non-nationwide Phase I 220
MHz licensees. This rule provided that a Phase I licensee could not
obtain an additional license unless the licensee could demonstrate that
an additional system would be justified on the basis of its
communications requirements. Section 90.739 of the Commission\'s
Rules[^298] was revised to provide that there would be no limit on the
number of licenses that may be authorized to a single 220 MHz service
licensee. Therefore, no additional action is required by the Commission
at this time.

**13.Installment Payments**

To encourage the participation of small businesses in the 220 MHz
Service auction, in compliance with Section 309(j) of the Communications
Act, the Commission made bidding credits and an installment payment plan
available to them. Very small businesses, defined as entities that,
together with affiliates and controlling principals, have average gross
revenues that are not more than \$3 million for the three preceding
years, would receive a 25 percent bidding credit. Small businesses that,
together with affiliates and controlling principals, have average gross
revenues that are not more than \$15 million for the three preceding
years, would receive a 10 percent bidding credit.[^299] In addition,
licensees that qualify as small businesses or very small businesses
would be entitled to pay their winning bid amount in quarterly
installments over the term of the license.[^300]

In the *Part 1 Third Report and Order*, the Commission considered its
use of installment payment plans for future auctions. On the basis of
the record in that proceeding and the record developed on installment
payment financing for the broadband PCS C block service and on recent
decisions eliminating installment payment financing for LMDS and 800 MHz
SMR, we concluded that, until further notice, the Commission should no
longer offer such plans as a means of financing small businesses and
other designated entities seeking spectrum licenses.[^301] We note that
this conclusion was subject to our request for comment in the Second
Further Notice of Proposed Rulemaking portion of the *Part 1 Third
Report and Order* on installment payment issues and means other than
bidding credits and installment payments by which the Commission might
facilitate the participation of small businesses in our spectrum auction
program.[^302] Consistent with this conclusion, we announced that the
Commission would shortly suspend the use of installment payment
financing for the 220 MHz Service auction.[^303]

In light of our experience with installment payment plans in previous
auctions as outlined in the *Part 1 Third Report and Order*, we conclude
that it is in the public interest to eliminate installment payments in
the 220 MHz Service auction. In order to facilitate the participation of
small businesses by overcoming the barriers they face in mobilizing the
necessary financial resources, however, we conclude that it is
appropriate to increase the amount of the bidding credits available to
small businesses and very small businesses.

We, therefore, will amend the Commission\'s rules to increase bidding
credits for the 220 MHz Service, consistent with those established in
the *Part 1 Third Report and Order.* Thus, small businesses with gross
revenues not to exceed \$15 million will receive a 25 percent bidding
credit and very small businesses with gross revenues not to exceed \$3
million will receive a 35 percent bidding credit. Based on our past
auction experience, we believe that the level of these bidding credits
will provide adequate opportunities for small businesses of varying
sizes to participate in the 220 MHz Service auction.

Next, we will amend Section 90.1015 of the Commission\'s Rules[^304] to
permit auction winners to make their final payments within ten (10)
business days after the applicable deadline, provided that they also pay
a late fee of 5 percent of the amount due, without being considered in
default. This change will conform our 220 MHz rules with the
generally-applicable Part 1 rules.[^305]

The 220 MHz rules provide that winning bidders have ten (10) business
days to make timely payment following notification that their licenses
are ready to be granted. As we stated in the *Part 1 Third Report and
Order*, we believe that in establishing an additional ten (10) business
day period during which winning bidders will not be considered in
default, we provide an adequate amount of time to permit winning bidders
to adjust for any last-minute problems in arranging financing and making
final payment. We decline to have a lengthier late payment period
because we believe that extensive relief from initial payment
obligations could threaten the integrity, fairness and efficiency of the
auction process. A late fee of 5 percent is consistent with general
commercial practice and provides some recompense to the Federal
Government for the delay and administrative or other costs incurred. In
addition, we believe that a 5 percent fee is large enough to deter
winning bidders from making late payments and yet small enough so as not
to be punitive. Therefore, applicants that do not submit the required
final payment and 5 percent late fee within the 10-day late payment
period will be declared in default and will be subject to the default
payment specified in Section 1.2104(g).

We emphasize that our decision to permit late payments is limited to
payments owed by winning bidders that have submitted timely initial down
payments. We continue to believe that the strict enforcement of payment
deadlines enhances the integrity of the auction and licensing process by
ensuring that applicants have the necessary financial qualifications. In
this connection, we believe that the *bona fide* ability to pay
demonstrated by a timely initial down payment is essential to a fair and
efficient auction process. Thus, we have not proposed to modify our
approach of requiring timely submission of initial down payments that
immediately follow the close of an auction. We believe that it is
reasonable to expect that winning bidders timely remit their down
payments given that it is their first opportunity to demonstrate to the
Commission their ability to make payments toward their licenses.
Similarly, we do not allow for any late submission of upfront payments,
as to do so would slow down the licensing process by delaying the start
of an auction.

Finally, we reiterate that the procedures set forth in Part 1, Subpart Q
of the Commission\'s Rules apply to the Phase II 220 MHz service unless
otherwise indicated in Part 90 of the Commission\'s Rules.[^306] We
therefore clarify that applicants at the short- and long-form
application stages are subject to the reporting requirements contained
in the newly adopted Part 1 ownership disclosure rule.[^307]

**14.Other Issues**

Petitions for reconsideration of the *220 MHz Third Report and Order*
raise three additional issues concerning Phase I nationwide licensees.
Two issues concern the construction benchmarks the Commission had
previously set for Phase I licensees. Rush and Metricom contend that the
Phase I construction requirements are onerous and unnecessary, and
Comtech and Global particularly object to the requirement that Phase I
licensees construct all 5 channels at a minimum number of base stations
in specified urban areas.[^308] The Phase I construction requirements,
however, were not developed or addressed in the *220 MHz Third Report
and Order*, and we therefore do not believe our reconsideration of that
Order to be the appropriate place for us to examine these issues.
Concerned parties might consider the option of filing a petition for
rulemaking as provided in Section 1.401 of the Commission\'s
Rules.[^309]

In addition, Comtech, Global, and Rush request that the Commission cease
requiring Phase I licensees to obtain specific site licenses for each of
their base stations.[^310] Again, these Phase I licensing rules were not
the subject of the *220 MHz Third Report and Order*. We note that an
independent record regarding this issue has already been created in
response to a petition for declaratory ruling, and we believe it would
be more appropriate to consider the question in the context of that
proceeding.[^311]

**B.220 MHz Second Report and Order Issues**

**1.Maximum Distance Relocation Limitations**

In the *220 MHz Second Report and Order* the Commission adopted a
one-time modification procedure that allows licensees to modify their
licenses to relocate their authorized base stations to previously
unauthorized locations. Under this procedure, licensees with base
stations authorized inside any DFA were permitted to relocate their base
stations up to one-half the distance over 120 km toward any authorized
co-channel base station, to a maximum distance of 8 km.[^312] Licensees
with base stations authorized outside the boundaries of any DFA were
permitted to relocate their base stations up to one-half the distance
over 120 km toward any authorized co-channel base station, to a maximum
distance of 25 km, so long as they did not locate their base station
more than 8 km inside the boundaries of any DFA.[^313]

In their petitions, AMTA, SMR, and Incom contend that the *220 MHz
Second Report and Order* is silent regarding the maximum allowable
distance of a move from within a DFA to outside a DFA.[^314] AMTA and
SMR urge the Commission to clarify or reconsider its decision to allow
moves up to a maximum distance of 25 km if the licensee is moving from a
location within a DFA to a location outside that DFA and will not move
into another DFA.[^315] Incom asks that the Commission clarify its
position to indicate that a licensee whose initially authorized site is
located inside a DFA within 8 km of the perimeter and who seeks to
modify to a location outside the DFA be permitted to move its site a
maximum of 25 km.[^316]

SMR asserts that licensees close to a DFA boundary moving outside the
DFA into a more rural area are likely to face the same difficulties as a
licensee already located outside a DFA in terms of finding alternative
sites within a short distance.[^317] AMTA and Incom argue that since
licensees moving outside a DFA are moving away from the center of
population they are unlikely to gain any increased population in their
service area.[^318] SMR further claims that, to the extent that a
licensee is moving away from a more populated and presumably more
valuable area, the effect would not be adverse to the interests of
entities participating in any subsequent auction for 220 MHz service
licenses.[^319] Incom also argues that the *220 MHz Second Report and
Order* contemplates that the defining element of a proposed modifica­tion
which crosses a DFA boundary would be the ultimate location of the
station.[^320]

The *220 MHz Second Report and Order* sets out a clear and unambiguous
framework governing the maximum distance licensees will be permitted to
move under the modification procedure. Under this framework, contrary to
the assertions in the record, the defining element of a proposed
modification is *not* the ultimate location of the base station --- the
defining element is based on the *initially authorized location*. Under
the modification procedure the Commission adopted, licensees with base
stations authorized *inside* any DFA are permitted to relocate their
base stations up to one-half the distance over 120 km toward any
authorized co-channel base station, to a maximum distance of 8 km.[^321]
Licensees with base stations authorized *outside* the boundaries of any
DFA are permitted to relocate their base stations up to one-half the
distance over 120 km toward any authorized co-channel base station, to a
maximum distance of 25 km.[^322]

The *220 MHz Second Report and Order* provided for only one
qualification to these two rules --- if a licensee moves from a site
outside a DFA to a site within a DFA, the licensee may relocate only 8
km inside a DFA boundary line.[^323] The reason for this qualification
is that the Commission concluded that a licensee seeking to relocate
from outside a DFA to within a DFA would not require a 25 km radius to
locate an available site. Moreover, the 8 km restriction was designed to
prevent a licensee who chose to relocate from outside a DFA to within a
DFA from having a greater geographic area within which to locate a new
site than a licensee that is authorized within the DFA.

The Commission found that this modification procedure would enable 220
MHz licensees to provide service in the geographic area they are
authorized to serve pursuant to their initial applica­tions, while
accommodating their need to relocate their base stations for technical
or other legitimate factors.[^324] The Commission reasoned that a
licensee situated in a DFA should be able to find an alternative base
station site within an 8 km radius due to the multiplicity of base
station sites in urban areas.[^325] On the other hand, the Commission
concluded in the *220 MHz Second Report and Order* that the availability
of sites in areas outside a DFA might be less numerous and, therefore, a
licensee should be given a 25 km radius within which to find an
alternative site.[^326]

The petitioners are asking that we reconsider the Commission\'s decision
allowing moves up to a maximum distance of 8 km if the licensee is
moving from a location within a DFA, and instead permit such a licensee
to move to a location outside that DFA up to a maximum distance of 25
km. We conclude, however, that the purpose of the modification procedure
established by the Commission was to enable 220 MHz licensees to carry
out their initial business plans by finding a useable site within their
planned area of service. It was not the intent of the Commission for the
modification procedure to serve as an opportunity for the licensee to
abandon its original plan to serve a particular area in favor of a more
attractive or different service area. In our view, a licensee, who is
presently authorized within a DFA, would have available to it the same
multiplicity of base station sites within an 8 km radius as a licensee
who is moving from a location within a DFA to another location within a
DFA. There is no basis in the record for a different conclusion.

The fact that a licensee initially authorized in a DFA *chooses* to seek
a new base station site outside its DFA should not entitle that licensee
to be treated in the same manner as a licensee that was initially
*authorized* outside a DFA, and therefore, presumably *requires* a
larger area, *i.e.,* 25 km, within which to find a new base station
site. Petitioners

have not presented us with any compelling evidence as to why we should
make an exception for this class of licensees. Therefore, we affirm the
Commission\'s determination that a licensee with an authorized base
station located in a DFA will be permitted to relocate its base station
up to one-half the distance over 120 km toward any co-channel
licensee\'s initially authorized base station, to a maximum distance of
8 km, regardless of whether the relocated base station site is inside or
outside the boundaries of the DFA.

**2.Non-Relocation Modifications**

AMTA, SMR, and USMC generally comment favorably upon the Commission\'s
decision in the *220 MHz Second Report and Order* to adopt relocation
procedures which provide 220 MHz licensees with flexibility to relocate
from sites that are no longer available.[^327] Petitioners, however, ask
that the Commission reconsider or clarify its decision to exclude
modifications, other than site relocation modifications, from the
procedures adopted in the *220 MHz Second Report and Order* and permit
licensees to file modifications of operating parameters for their
original or relocated facilities, including increases in their antenna
height and power specifications up to maximum permitted values.[^328]

AMTA, SMR, and USMC have various interpretations regarding what the *220
MHz Second Report and Order* actually provides regarding this issue.
USMC interprets the *Order* as permitting a licensee who files a
relocation modification to also apply for any other changes to its
operating parameters at the new location, provided that it does not
exceed the height and power limits set out in the Commission\'s
rules.[^329] USMC contends that the *220 MHz Second Report and Order*
does not grant similar flexibility to a licensee that does not
relocate.[^330] Thus, USMC argues that the Commission\'s rules lead to
an unintended and "absurd" result, forcing licensees to relocate if they
were at otherwise sufficient locations but wanted to make changes to
their height and power operating parameters in order to be able to
provide better service.[^331] SMR argues similarly that the *220 MHz
Second Report and Order* unfairly discriminates against those licensees
prepared to remain at their original locations but who need to modify
certain specifications at their original site.[^332] AMTA, on the other
hand, seems to assume that the *220 MHz Second Report and Order* does
not allow such changes even if the licensee is seeking to
relocate.[^333]

USMC argues that because co-channel separation distances are based on
the maximum permissible height and power limits, any change within the
limits will not cause harmful interference to other co-channel licensees
and thus should be allowed.[^334] AMTA and SMR assume that existing
stations are likely to be protected under new rules based on the service
contour that would result from a licensee operating at the maximum
antenna height and power.[^335] They argue that allowing such "minor"
modifications will therefore have no effect on the amount of service
area available to future auction participants.[^336] SMR further argues
that licensees cannot be expected to have foreseen that they would be
restricted to the specifications on their original licenses and,
therefore, to prevent licensees from modifying their licenses would be
unfair and contrary to the public interest.[^337]

SMR also claims that many of the licensees seeking such modifications
already are providing service to the public pursuant to STA grants which
have authorized these changes.[^338] SMR contends that the Commission\'s
rationale that it was not appropriate to force licensees who have
constructed their systems at relocated sites pursuant to STAs to
discontinue such service applies equally to licensees who have
constructed at their original sites and obtained STAs to operate with
different technical parameters.[^339] SMR further contends that forcing
existing licensees to either change existing operations or settle for
inferior technical specifications at original sites would be contrary to
the goal to enhance the competitive potential of 220 MHz services in the
CMRS marketplace because 220 MHz licensees would be less able to compete
with the providers of other commercial mobile services.[^340]

In the *220 MHz Second Report and Order*, the Commission sought to
accommodate Phase I licensees that "for various unfore­seen reasons, . .
. are unable to construct at their authorized locations" and therefore
provided such licensees with the opportunity to seek modification of
their licenses to relocate their base stations.[^341] The *220 MHz
Second Report and Order* did not provide for licensees to modify their
authori­zations for any other reason, such as to change their power or
antenna height, since, as explained more fully below,[^342] such a
ruling would have gone beyond the specific purpose for which the *220
MHz Second Report and Order* was adopted. Furthermore, we disagree with
USMC\'s interpretation that the *220 MHz Second Report and Order* allows
licensees who seek to relocate also to make changes in these parameters.

We continue to believe that the modification procedure set out in the
*220 MHz Second Report and Order* appropri­ately accommodates the needs
of licensees who were unable to construct at their authorized locations.
The intention of the Commission in the *220 MHz Second Report and Order*
was to craft carefully and narrowly drawn relocation parameters to
provide relief to existing licensees but not to allow them to enhance
their position in the marketplace. The interest of the Commission in
establishing precise and narrow criteria was heightened by the fact that
the Commission also had decided to take the unusual step of allowing
these licensees to file modification applications without providing an
opportunity for other potential applicants to file competing initial
applications.[^343] In light of these considerations, we find no basis
for any general extension of the modification parame­ters to include
changes to antenna height and power at a licensee\'s originally
authorized location. We note, however, that, as discussed above,[^344]
licensees who decided not to relocate under the procedures announced in
the *220 MHz Second Report and Order* will be permitted to make changes
to their technical parameters as long as such modifications do not
expand their 38 dBu service contour.

In addition, as a practical matter, because it is highly unlikely that a
licensee who relocates its base station will be able to install its
antenna at the identical height above average terrain specified in its
existing authorization, we clarify that licensees seeking to relocate
are also permitted to modify their antenna height above average terrain.
On the other hand, it would not be necessary for a licensee who
relocates to operate at the new site at a different power level, and
thus the *220 MHz Second Report and Order* does not allow a licensee who
relocates to change its power level.[^345]

If, however, as a result of raising the antenna height, the height and
power combination exceeds the provisions of the ERP vs. Antenna Height
Table in Section 90.729 of the Commission\'s Rules,[^346] the rules
require that the licensee\'s authorized power shall be reduced
accordingly so that the operations of the licensee remain in compliance
with the provisions of that section. Any applicant seeking to relocate
and to alter operating power levels is permitted to relocate (if the
application is in conformance with applicable rules), but the *220 MHz
Second Report and Order* does not establish any authorization pursuant
to which the applicant may alter operating power levels. We note that
after a licensee relocates in accordance with the Commission\'s
modification procedures and establishes its 38 dBu service contour, the
licensee, as outlined in paras. -, *supra*, will be able to make changes
to its authorization, including its power level, provided that doing so
does not expand its 38 dBu service contour.

As for licensees who were granted STAs at their original locations but
at increased height or power, those STAs were granted only on a
temporary basis, and they conferred no guarantee that the licensee would
be able to obtain a permanent authorization in accordance with those
changes. In addition, a licensee with an STA to operate at different
height or power parameters would not be precluded from offering service
if the licensee is not granted permanent authorization at those
parameters. Only the coverage area would be altered.

Finally, we note that petitioners base their arguments in part on the
assumption that existing stations are likely to be protected under new
Phase II rules based on a service contour.[^347] AMTA cites the 800 MHz
and 900 MHz SMR bands as cases in which the Commission has chosen to
protect incumbent licensees to their 22 dBu or 40 dBu contours.[^348]
Petitioners further assert that such protection is likely to be based on
maximum allowable height and power.[^349] In fact, the protection
afforded Phase I licensees by future Phase II licensees has been
addressed by the Commission in the *220 Mhz Third Report and
Order*,[^350] where the Commission determined that Phase I licensees
would be protected to their 38 dBu service contour based on *actual*, as
opposed to maximum, height and power. We have affirmed that decision in
this Order.[^351]

**3.Special Temporary Authority**

In the *220 MHz Second Report and Order* the Commission recognized that
a number of licensees had obtained STAs to operate base stations at
alternative locations and that some of these locations would not meet
the permissible modification requirements established in the *220 MHz
Second Report and Order*.[^352] The Commission believed that it would
not be appropriate to require licensees to discontinue operations if
they had obtained STAs to operate at alternate locations and were
currently operating or planning to operate at such locations.[^353]

The *220 MHz Second Report and Order* therefore provided that a licensee
who had been granted an STA to operate at an alternative site would be
permitted to seek permanent authorization at the STA site if the
licensee certified that it had (1) constructed its base station and
placed the base station in operation, or commenced service at that site;
or (2) taken delivery of its base station transceiver on or before the
adoption date of the *220 MHz Second Report and Order*.[^354] The
Commission provided that such licensees were permitted to seek permanent
authorization at the STA site regardless of whether locating at the STA
site would be in strict conformance with the relocation distance
limitations prescribed in the modifica­tion procedure.[^355]

The petitioners ask the Commission to reconsider or clarify that
licensees who filed STA requests not later than the adoption date of the
*220 MHz Second Report and Order* and were granted STAs after January
26, 1996 (the adoption date of the *220 MHz Second Report and Order*),
and who otherwise meet the relocation requirements of Section
90.753(c)(2) of the Commission\'s Rules, will be allowed to seek
permanent authorization at their STA sites.[^356] Incom concludes that a
licensee who had constructed its base station and had placed it in
operation or commenced service as of January 26, 1996, must have been
granted an STA by January 26, 1996 --- otherwise operation at that site
would be in contravention of the Commission\'s Rules.[^357] Petitioners
claim, however, that it is not clear whether licensees who had only
taken delivery of base station transceivers by January 26, 1996, must
also have been granted STAs by that date.[^358]

Petitioners argue that the Commission\'s speed in processing one STA
compared to another is out of the licensee\'s control and provides no
basis for distin­guishing among licensees.[^359] PERS contends that it is
long-standing Commission policy that similarly situated applicants must
be treated similarly under the rules.[^360] Petitioners also claim that
by imposing a cut-off based solely on the grant of an STA request, two
similarly situated applicants for modification based on STA requests
filed on the same day could be treated dissimilarly, determined only by
the timing of the Commission\'s review of the STA request.[^361]
Petitioners contend that such disparate treatment could be construed as
arbitrary and capricious, and argue that the Commission has typically
triggered a moratorium on acceptance of applications, or instituted
cut-offs, based upon a deadline for filing applications.[^362]

Incom also contends that since STAs are generally processed
expeditiously, under industry practice it is common for preparatory
construction work to be done prior to submit­ting an STA request.[^363]
Thus, according to Incom, licensees who took delivery of equipment prior
to January 26 and whose STAs were pending at the Commission but not
granted by that date have frequently devoted the same time and effort to
the construction process as licensees whose STAs were granted by January
26, 1996.[^364] Furthermore, PERS states that all of the licensees whose
systems are managed by PERS have already constructed or are in the
process of constructing their base station facilities and are able to
begin providing service to the public.[^365] PERS claims that if these
licensees are not allowed to file for permanent authorizations at their
STA sites and begin providing service to the public, it would undermine
the Commission\'s goal of providing valuable service to the public in
the most efficient manner.[^366]

We conclude, notwithstanding the claims made in the record, that it was
the Commission\'s intent in the *220 MHz Second Report and Order* that
the relief provided for licensees operating under STAs be restricted to
those licensees who had been granted STAs on or before January 26, 1996.
The Commission made this clear, for example, in the provisions of the
*220 MHz Second Report and Order* dealing with STAs, by referring to
licensees who "have obtained" STAs.[^367] In addition, the *220 MHz
Second Report and Order* provides that "any licensee that *has been
granted* an STA to operate at an alternative site" will be permitted to
seek permanent authorization at that site in accordance with the
proce­dures for filing modification applications established in the
*Order* if the licensee has construct­ed its base station and has placed
it in operation, or commenced service at that site,[^368] or has taken
delivery of its base station transceiver on or before the adoption date
of the *220 MHz Second Report and Order*.[^369]

We find no basis to conclude that the January 26, 1996, deadline is
arbitrary or capricious. The Commission grants STAs to licensees upon a
showing of need. Prior to January 26, 1996, the Commission granted STAs
because 220 MHz licensees would have been unable to operate at base
station sites other than their initially authorized locations, because
the Commission had not yet an­nounced final modifi­ca­tion rules for the
220 MHz service. As of January 26, 1996, the final modifica­tion and
relocation proce­dures had been announced and thus there no longer was
any need for an STA.[^370] After that date it would have only been
necessary to issue an STA in order to meet a licensee\'s needs in an
emergency situation.

Petitioners speculate that two similarly situated applicants who filed
for STAs on the same date could be treated dissimilarly if one was
granted an STA on or before January 26, 1996, and the other was granted
an STA after January 26.[^371] None of the petitioners, however,
presents evidence of a situation in which this actually occurred.
Furthermore, as the Commission has previously pointed out, when this
issue was first raised in the United States Court of Appeals for the
District of Columbia, in an Opposition to an Emergency Motion for Stay,
"\[t\]he Land Mobile Branch quickly approved petitioners\' \[STA\]
applications (and every other application received by it on January 26
or filed on January 25) on the next business day, January 29."[^372]
None of these applications was granted on or before January 26.

Petitioners cite several cases in which the Commission established a
cut-off date based on the filing of an application rather than on the
grant of the application.[^373] Incom cites the 900 MHz service, in
which the Commission granted primary site status to all pending 900 MHz
applications filed as of August 9, 1994, rather than restricting such
relief to those applications granted as of that date.[^374] Incom also
references the Commission\'s moratorium on the acceptance for filing of
929 MHz and 930 MHz applications, based on the filing date.[^375] All of
the cases cited by petitioners, however, are distinguishable from the
situation presented here. None of the cases cited involved STAs. STAs
are issued in circumstances in which there is a need for special action
and are always limited to a temporary authorization. All of the cited
cases involved either license applications or applications for secondary
authorizations. Furthermore, none of these cases involved the special
circumstances present in this case, namely, that once the final
modification and relocation procedures had been announced on January 26,
1996, licensees no longer had a need to obtain an STA.

As to those licensees who took delivery of their equipment and expended
time and resources preparing their STA site for construction, but who
waited to apply for an STA until late January, we note that an STA does
not guarantee any right to obtain permanent authoriza­tion at the STA
site. Further, there was no guarantee in the *Fourth Notice* that
licensees who had been granted STAs would be able to relocate at their
STA sites. While pre-grant construction may not be an uncommon practice,
the Commission\'s rules provide that licensees who construct prior to
receiving an authorization do so at their own risk.[^376] Licensees were
able to apply for STAs at any time during the planning or construction
of their base stations. They had no reason to delay filing their STA
applications. At the time the *220 MHz Second Report and Order* was
released the construction deadline was February 2, 1996. The
Commission\'s regulations caution applicants to file STA applications at
least 10 days prior to the date of proposed operation.[^377] Therefore,
a licensee who filed an STA application after January 23, 1996, could
not reasonably have expected to receive an STA prior to the construc­tion
deadline.

For these reasons, we conclude that a licensee who had taken delivery of
its base station transceiver on or before January 26, 1996, must have
been granted an STA on or before January 26, 1996, in order to be
allowed to seek permanent authorization at its STA site. We note that
licensees who were not granted STAs on or before January 26, 1996, were
permitted to modify their base station locations in accordance with the
relocation rules set forth in Sections 90.753(a) and 90.753(b) of the
Commission\'s Rules.[^378]

**4.Alternative Site Proposals**

While the *220 MHz Second Report and Order* acknowledged that the
modification procedure outlined in the *220 MHz Second Report and Order*
would accommodate most 220 MHz licensees needing to relocate their base
stations, the *220 MHz Second Report and Order* also recognized that in
certain areas of the Nation it is possible that the technical
characteristics of base station sites available under the relocation
procedure may be considerably inferior to the technical characteristics
of currently licensed sites and sites that may exist at nearby, more
elevated locations.[^379] In these cases, the Commis­sion contemplated
that licensees would seek a waiver of the modification procedures the
Commission adopted in the *220 MHz Second Report and Order*.[^380] AMTA
and Incom express concern that the *220 MHz Second Report and Order* did
not provide for a protection mechanism or for a tolling of the
construction period for licensees filing such waiver requests.[^381]
They argue that if a waiver request is ultimately denied, a licensee
would lose its authoriza­tion for failure to construct by March 11,
1996.[^382]

Incom claims that such a result would deter licensees from seeking a
waiver.[^383] Petitioners therefore request that the Commission permit
waiver applications to include an alternative site proposal which
complies with the Commission\'s rules, and that the Commission give
licensees additional time to construct at the alternative site if the
waiver request is denied.[^384] Petitioners argue that allowing such an
alternative showing would be consistent with the recognition in the *220
MHz Second Report and Order* that alternative, albeit inferior sites may
exist.[^385] Petitioners also assert that such an alternative showing
procedure is utilized for all public mobile services governed by Part
22,[^386] and Incom argues that the Budget Act of 1993[^387] would
appear to require the Commission to extend the Part 22 waiver standard
to the 220 MHz service since they are substantially similar
services.[^388]

Section 1.958 of the Commission\'s Rules provides that "\[r\]equests for
waiver must . . . set forth reasons in support thereof including a
showing that unique circumstances are involved and that there is no
reasonable alternative solution within existing rules."[^389] The *220
MHz Second Report and Order* provided that if a licensee believed that,
due to unique terrain features, it wanted to apply for a waiver of the
modification procedures established in the *220 MHz Second Report and
Order*, it could choose to do so.[^390] In the *220 MHz Second Report
and Order* the Commission posed a clear and reasonable choice for 220
MHz licensees. The Commission did not provide licensees with the option
of applying for a waiver while at the same time allowing them to attempt
to retain their option to construct at an alternate, although inferior,
site which complies with the rules.

Petitioners note that licensees may utilize an alternative showing
procedure when applying for a waiver of the rules contained in Part
22.[^391] Such a procedure is specifically provided for in Section
22.119 of the Commission\'s Rules, which also specifies the showing
required for a waiver of Part 22 Rules.[^392] We note, however, that
there is *no* parallel provision for alternative showing procedures for
services licensed under Part 90 of the Commission\'s Rules. Under the
Commission\'s general waiver rule for services licensed under Part 90, a
waiver applicant must show that no reasonable alternative exists within
existing rules.[^393] Furthermore, the standard for granting waiver
requests, as set forth in *Wait Radio,* is that "the very essence of
waiver is the assumed validity of the general rule, and also the
applicant\'s violation unless waiver is granted."[^394] Thus, a licensee
seeking a waiver of the Commission\'s rules to locate its base station
at a site not permitted under the modification procedure must, in order
to apply for a waiver, have no alternative available under the rules. If
a licensee is able to offer an alternative relocation site, then, it
could be argued that there is no reasonable basis for a waiver.

Therefore, a 220 MHz licensee seeking a waiver would need to show that
site alternatives within the parameters of the Commission\'s relocation
rules would be so inferior that they would preclude a viable system. To
decide otherwise and permit licensees to make alternative site showings
would not be consistent with this rule and also would impair one of the
policy objectives set forth in the *220 MHz Second Report and Order*,
*i.e.,* to provide existing licensees flexibility to complete
construction of their systems and provide service while not unreasonably
impairing the opportunity of potential competitors to obtain licenses in
the 220 MHz service.[^395] We believe that we provided sufficient
flexibility to incumbent licensees by permitting them to relocate their
base stations while at the same time insulating them from any competing
filings by new applicants. To go further, as petitioners urge us to do,
would risk an adverse impact on the competitive development of the 220
MHz service.

The Commission provided licensees with a reasonable frame­work for
modify­ing their base station locations, and petitioners, in our view,
have not presented persua­sive argu­ments that the Commission should now
change that framework to allow for alterna­tive site proposals to
accompa­ny waiver requests. Furthermore, since we are affirming that
licensees may not file alternative location proposals with a waiver
request, we do not need to reach the question of whether we will allow
licensees whose waiver requests are denied a reasonable period of time
to construct their facilities at an alternative site. We note, however,
that in the *220 MHz Second Report and Order* The Commission stated that
the Commission will extend the deadline for a licensee to construct its
station and place it in operation, or commence service, beyond August
15, 1996, by the number of days after June 1, 1996, that pass before a
licensee\'s timely filed modification application is actually
granted.[^396] Therefore, a licensee who is granted a waiver after June
1, 1996, will have an adequate period of time to construct its station.

**5.Other Waiver Issues**

As we have discussed,[^397] in the *220 MHz Second Report and Order* the
Commission acknowledged that the modification procedure adopted therein
would accommodate most 220 MHz licensees who need to relocate their base
stations.[^398] The *220 MHz Second Report and Order*, however, also
recognized that in certain areas it may be possible that the technical
characteristics of base station sites available under the modification
procedure may be considerably inferior to the technical characteristics
of currently licensed sites and sites that may exist at nearby, more
elevated locations.[^399] The Commission pointed out that such a
scenario could exist, for example, in the Los Angeles or Seattle
areas.[^400] Therefore, the Commission stated that it would be
appropriate to entertain waiver requests by licensees authorized in the
Los Angeles and Seattle areas, as well as any other urban areas with
comparable terrain features.[^401]

In Touch expresses concern that the *220 MHz Second Report and* Order
mentions only those waiver requests based on elevation differentials
unique to certain DFAs, such as Los Angeles and Seattle.[^402] In Touch
asks that the Commission clarify that waiver requests of the 8 km
limitation based on unique DFA terrain issues other than simple
elevation differentials of the site location will be accepted.[^403] In
support of its request In Touch asserts that in Atlanta, Stone Mountain
is situated in the middle of one side of the original service area for a
number of Atlanta licensees, and therefore relocation outside the 8 km
limitation is required.[^404]

In Touch also contends that inside the Atlanta DFA there are substantial
rural areas where the licensee\'s original site is not available and no
other available sites exist within 8 km.[^405] In Touch therefore
requests that the Commission reconsider or clarify that waiver requests
of the 8 km relocation limitation will also be permitted to include
situations where the licensee can demonstrate that there are no existing
antenna sites available to it within the 8 km limitation.[^406]

In Touch correctly points out that the *220 MHz Second Report and* Order
does specifically mention one particular type of waiver request that the
Commis­sion will consider. There is nothing in the *220 MHz Second Report
and* *Order*, however, that would prevent a licensee from seeking an
appropriate and timely waiver of the Commission\'s rules if the licensee
believes it has met the Commission\'s standard for waiver.[^407] By
mentioning one type of situation in the *220 MHz Second Report and*
Order that the Commission believes may be appropri­ate for a waiver, the
Commission did nothing to preclude other types of waiver situa­tions.
Therefore, we believe that no additional clarifica­tion is required on
this point.

**IV. PROCEDURAL MATTERS**

**A.Regulatory Flexibility Act**

As required by the Regulatory Flexibility Act, the Commission has
prepared a Supplemental Final Regulatory Flexibility Analysis
(Supplemental FRFA) of the possible impact on small entities of the
rules adopted in this Memorandum Opinion and Order on
Reconsideration.[^408] The Supplemental FRFA is set forth as Appendix C.
The Office of Public Affairs, Reference Operations Division, will send a
copy of the Memorandum Opinion and Order on Reconsideration, including
the Supplemental FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration, in accordance with the Regulatory Flexibility
Act.

**B.Paperwork Reduction Act**

This Order contains new information collection requirements that the
Commission is submitting to the Office of Management and Budget
requesting emergency clearance under the Paperwork Reduction Act.

**C.Further Information**

For further information concerning this rulemaking proceeding contact
Marty

Liebman, Mary Woytek, or Jon Reel, Policy Division at (202) 418-1310, or
Frank Stilwell, Auctions and Industry Analysis Division, at (202)
418-0660, Wireless Telecommunications Bureau, Federal Communications
Commission, Washington, D.C. 20554.

**V. ORDERING CLAUSES**

Accordingly, IT IS ORDERED, that the petitions for reconsideration or
clarification filed by American Mobile Telecommunications Association;
Incom Communications Corporation, SEA, Inc., In Touch Services, Inc.,
Philip Adler dba Communications Management Company, and Aircom
Communications, Inc.; In Touch Services, Inc.; Police Emergency
Services, Inc. and Bostom and Associates Company; and SMR Advisory
Group, L.C. with respect to the *220 MHz Second Report and Order* in PR
Docket No. 89-552 and GN Docket No. 93-252, ARE GRANTED to the extent
provided herein and otherwise ARE DENIED. This action is taken pursuant
to Sections 4(i), 4(j), 303(d), 303(r), 309(j), 332, and 405 of the
Communications Act of 1934, 47 U.S.C. §§ 154(i), 154(j), 303(d), 303(r),
309(j), 332, 405.

IT IS FURTHER ORDERED, that the petitions for reconsideration or
clarification filed by American Mobile Telecommunications Association,
Inc.; Comtech Communications, Inc.; Glenayre Technologies, Inc.; Global
Cellular Communications, Inc.; INTEK Diversified Corp.; Metricom, Inc.;
National Communications Group, Capital Communications Group, Columbia
Communications Group, Lonesome Dove Communications, All-American
Communications Partners, and Shiner Bock Group; Personal Communications
Industry Association; SEA Inc.; Rush Network Corp.; and SMR Advisory
Group L.C. with respect to the *220 MHz Third Report and Order* in PR
Docket No. 89-552 and GN Docket No. 93-252, ARE GRANTED to the extent
provided herein and otherwise ARE DENIED. This action is taken pursuant
to Sections 4(i), 4(j), 303(d), 303(r), 309(j), 332, and 405 of the
Communications Act of 1934, 47 U.S.C. §§ 154(i), 154(j), 303(d), 303(r),
309(j), 332, 405.

IT IS FURTHER ORDERED that the Commission\'s Rules ARE AMENDED as set
forth in Appendix D. IT IS FURTHER ORDERED that the provisions of this
Order and the Commission\'s Rules, as amended in Appendix D, SHALL
BECOME EFFECTIVE 60 days after publication of this Order in the Federal
Register.

IT IS FURTHER ORDERED that a Public Notice will be issued by the
Wireless Telecommunications Bureau following the adoption of this Order
announcing when applications must be filed by Phase I, non-nationwide
licensees in order to enable such licensees to comply with the
requirement that they modify their authorization to reflect the ERP at
which they were operating at the time the decisions adopted in the *220
MHz Third Report and Order* became effective.

IT IS FURTHER ORDERED that the Commission\'s Office of Public Affairs,
Reference Operations Division, SHALL SEND a copy of this Order,
including the Supplemental Final Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

**List of Parties Filing Petitions for Reconsideration or
Clarification**

**and Comments Concerning Second Report and Order**

[Petitions]{.underline}

American Mobile Telecommunications Association (AMTA)

Incom Communications Corporation, SEA, Inc., In Touch Services, Inc.,
Philip Adler dba Communications Management Company, and Aircom
Communications, Inc. (Incom)

In Touch Services, Inc. (In Touch)

Police Emergency Services, Inc. and Bostom and Associates Company (PERS)

SMR Advisory Group, L.C. (SMR)

[Comments]{.underline}

US MobilComm, Inc. (USMC)

**APPENDIX B**

**List of Parties Filing Petitions, Comments, and Reply Comments**

**Concerning Third Report and Order**

[Petitions]{.underline}

American Mobile Telecommunications Association, Inc. (AMTA)

Comtech Communications, Inc. (Comtech)

Glenayre Technologies, Inc. (Glenayre)

Global Cellular Communications, Inc. (Global)

INTEK Diversified Corp. (INTEK)

Metricom, Inc. (Metricom)

National Communications Group, Capital Communications Group, Columbia
Communications

Group, Lonesome Dove Communications, All-American Communications
Partners, and

Shiner Bock Group (National)

Personal Communications Industry Association (PCIA)

SEA Inc. (SEA)

Rush Network Corp. (Rush)

SMR Advisory Group L.C. (SMR)

[Comments]{.underline}

Arch Communications Group, Inc. (Arch)

INTEK

Metricom

Police Emergency Radio Services, Inc. (PERS)

SEA

SMR

USMC

[Reply Comments]{.underline}

AMTA

Arch

Comtech

INTEK

PCIA

Small Businesses in Telecommunications (SBT)

SMR

**APPENDIX C**

**Supplemental Final Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),[^409] a Final
Regu­latory Flexibility Analysis (FRFA) was incorporated in Appendix B of
the *220 MHz Second Report and Order*[^410] in and Appendix A of the
*220 MHz Third Report and Order*[^411] in this proceeding. The
Commission\'s Supplemental Final Regulatory Flexibility Analysis
(Supplemental FRFA) in this Memorandum Opinion and Order on
Reconsideration reflects revised or additional information to that
contained in those FRFAs. This Supplemental FRFA is thus limited to
matters raised in response to the *220 MHz Second Report and Order* or
the *220 MHz Third Report and Order* that are granted on reconsideration
in the Memorandum Opinion and Order on Reconsideration. This
Supplemental FRFA conforms to the RFA, as amended by the Contract with
America Advancement Act of 1996 (CWAAA).[^412]

**I. Need For and Objectives of the Action**

The actions taken in this Memorandum Opinion and Order on
Reconsideration are in response to petitions for reconsideration or
clarification of the service rules adopted in the *220 MHz Third Report
and Order* to implement service in the 220-222 MHz frequency band (220
MHz service), and in response to petitions for reconsideration or
clarification of license modification rules adopted in the *220 MHz
Second Report and Order*. The petitions are denied, with the following
exceptions. The rule changes adopted in the Memorandum Opinion and Order
on Reconsideration grant in part the petitions that Phase I licensees be
permitted to modify their authorizations to the extent that Phase I
licensees will be permitted to make modifications to their
authorizations which do not expand their 38 dBu service contours. Phase
I licensees will also be permitted to convert their site-by-site
licenses to a single license. Our objective in permitting such
modifications is to provide Phase I licensees with maximum flexibility
while striking a fair balance between the interests of incumbent
licensees and Phase II licensees.

We also grant the petition that the antenna height limitation for
stations operating in the 220 MHz band be associated with the HAAT of
the station\'s transmitting antenna, rather than the antenna\'s height
above ground. Our objective is to eliminate instances of licensees
inadvertently causing interference to adjacent channel operations.

We remove the 220 MHz service spectrum efficiency standard, and thus
grant the petition that we eliminate the efficiency standard as applied
to paging operations. In light of the observations of petitioners
regarding the unavailability of equipment that would meet the standard,
we now believe that imposition of the standard could inadvertently deny
the provision of certain services in the 220-222 MHz band, contrary to
our intent in the *220 MHz Third Report and Order*. Our objective in
removing the standard is to facilitate the provision of a wide range of
services in the 220 MHz band.

In addition, the Commission addresses certain issues that the *Part 1
Third Report and Order* directs be resolved in this proceeding.[^413]
Consistent with the conclusions reached in the *Part 1 Third Report and
Order*, we eliminate installment payment plans for small and very small
businesses participating in the 220 MHz service auction, and increase
the level of bidding credits for such entities. We will also amend the
Commission\'s rules to permit auction winners to make their final
payments within 10 business days after the applicable deadline, provided
that they also pay a late fee of 5 percent of the amount due.

**II. Summary of Significant Issues Raised by the Public in**

**Response to the Final Regulatory Flexibility Analyses**

No comments were received in direct response to the FRFAs. Small
Business in Telecommunications (SBT) commented that the Commission\'s
position regarding license modifications appeared to express more
concern for future licensees than for incumbent licensees who are
currently providing service to the public.[^414] The actions taken in
this Memorandum Opinion and Order on Reconsideration reflect the
Commission\'s recognition that licensed sites may become unusable for a
variety of reasons. The Commission is persuaded by arguments that, in
order to maintain the economic and technical viability of a licensee\'s
220 MHz service, Phase I incumbent licensees should be permitted to
modify their authorizations as long as doing so does not expand their
service contour. Modifications to Phase I licensees\' authorizations
which do not expand their 38 dBu service contour will therefore be
permitted.

Phase I licensees will also be able to add new transmitters within their
38 dBu service contour without prior authorization from the Commission
so long as signals from such transmitters do not expand the 38 dBu
service contour. These modification applications will not be subject to
public notice and petition to deny provisions in the Commission\'s
rules, and will not be subject to mutually exclusive applications. In
addition, we will allow Phase I 220 MHz licensees to convert their
site-by-site licenses to a single license authorizing operations
throughout the incumbents\' contiguous and overlapping 38 dBu service
contours of their constructed multiple sites. We believe this decision
strikes a fair balance between the interests of incumbents and Phase II
licensees.

The Memorandum Opinion and Order on Reconsideration, as provided in the
*Part 1 Third Report and Order*, eliminates installment payment
financing for small and very small businesses participating in the Phase
II 220 MHz service auction. At the same time, in order to offer small
and very small businesses a meaningful opportunity to participate in the
auction, the Commission has offered higher bidding credits, consistent
with those available through a loan.

**III. Description and Estimate of the Number of Small**

**Entities to Which Rules Will Ap­ply**

**A.Phase II Licensees**

As in the FRFAs, the service regulations we adopt to implement the Phase
II 220 MHz service would apply to all entities seeking a Phase II 220
MHz license. As discussed in the FRFAs, using the Small Business
Administration (SBA) definitions applicable to radiotelephone companies
and to cable and pay television services, a majority of 220 MHz service
entities may be small businesses.

The Commission had not developed a more refined definition of small
entities applicable to the 220 MHz service, prior to the *220 MHz Third
Report and Order*, because the Phase II 220 MHz service is a new
service. The RFA amendments were not in effect until after release of
the *220 MHz Third Notice of Proposed Rulemaking*, and therefore no data
was received establishing the number of small businesses associated with
the Phase II 220 MHz service. In the *220 MHz Third Report and Order* we
adopted criteria for defining small businesses and very small businesses
for purposes of determining their eligibility for special provisions
such as bidding credits and installment payments.[^415] The SBA has
approved these definitions for Phase II licensees.[^416] We will use the
definitions in estimating the potential number of small entities
applying for auctionable spectrum.

We defined a small business as an entity that, together with its
affiliates and controlling principals, has average gross revenues not
exceeding \$15 million for the preceding three years. Additionally,
bidding credits and an installment payment plan were made available to
each applicant that is a very small business, 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.[^417]

No parties submitting or commenting on the petitions for reconsideration
giving rise to this Memorandum Opinion and Order on Reconsideration
commented on the potential number of entities that would be small
businesses or very small businesses, and we are unable to predict
accurately the number of applicants for the Phase II 220 MHz service
that would fit the definition of a small business or a very small
business for competitive bidding purposes.

In the FRFAs, the Commission estimated that it would receive
approximately 2,220 total applications for the Phase II 220 MHz service,
*i.e.*, 2,000 Public Safety applications (including 1,000 EMRS
applications), 90 applications for Economic Area channels, 20
applications for Regional channels, 100 applications for secondary
service, and 10 applications for Nationwide channels. These applicants
(many of whom may be small entities), as well as Phase I 220 MHz
licensees (discussed below), and at least six equipment manufacturers
(three of which may be small entities), were subject to the rules
adopted in the *220 MHz Third Report and Order*.[^418]

The Commission justified the auctions-related estimate of participation,
including an estimate of 120 small entities, by referring to its
experience in the auction of the 900 MHz SMR service, a service similar
to the 220 MHz service. In the 900 MHz SMR service, which utilized an
identical definition for small business, 1,050 licenses were made
available and a total of 128 applications were received in the auction.
Of these applications, 71 qualified as very small businesses and 30
qualified as small businesses. A total of 908 licenses will be made
available for authorization in the 220 MHz service auction. Given that
128 qualified applications were received in the 900 MHz SMR auction, we
anticipated receiving slightly fewer or 120 applications in the 220 MHz
service auction. Given that 71 applicants qualified as very small
businesses and 30 applicants qualified as small businesses in the 900
MHz SMR auction, we estimated that proportionately fewer, or 65
applicants, would qualify as very small businesses and 27 applicants
would qualify as small businesses in the 220 MHz service auction.[^419]

Because, as we describe *infra*, the elimination of installment payments
is counterbalanced by our decision to elevate the size of bidding
credits, we anticipate that the figures we have presented regarding the
estimated number of small entities participating in the 220 MHz service
auction will remain unchanged. We therefore anticipate that
approximately 55 percent of the 120 applicants will qualify as very
small businesses and 23 percent will qualify as small businesses.

**B.Phase I Licensees**

The Commission has not developed a definition of small entities
applicable to 220 MHz Phase I licensees, or equipment manufacturers for
purposes of this Supplemental FRFA, and, since the RFA amendments were
not in effect until after the release of the *220 MHz Third Notice of
Proposed Rulemaking* and the *220 MHz Fourth Notice of Proposed
Rulemaking* was closed, the Com­mission did not request information
regarding the number of small businesses that are asso­ciated with the
220 MHz service.[^420] To estimate the number of Phase I licensees and
the num­ber of 220 MHz equipment manufacturers that are small businesses
we shall use the rele­vant definitions provided by SBA.

There are approximately 1,515 non-nationwide Phase I licensees and four
nationwide li­censees currently authorized to operate in the 220 MHz
band. To estimate the number of such entities that are small businesses,
we apply the definition of a small entity under SBA rules applicable to
radiotelephone companies. This definition provides that a small entity
is a radio­telephone company employing no more than 1,500 persons.[^421]
According to the Bureau of the Census, only 12 radiotelephone firms out
of a total of 1,178 such firms which operated during 1992 had 1,000 or
more employees.[^422] Therefore, even if all 12 of these firms were 220
MHz service companies, nearly all 220 MHz service companies were small
businesses under the SBA\'s definition.

**C.Radio Equipment Manufacturers**

We anticipate that at least six radio equipment manufacturers will be
affected by our decisions in this proceeding. According to SBA
regulations, a radio and television broad­casting and communications
equipment manufacturer must have 750 or fewer employees in order to
qualify as a small business concern.[^423] Census Bureau data indicate
that there are 858 U.S. firms that manufacture radio and television
broadcasting and communications equipment, and that 778 of these firms
have no more than 750 employees and would therefore be classified as
small entities.[^424] We do not have information that indicates how many
of the six radio equip­ment manufacturers associated with this proceeding
are among these 778 firms. However, because three of these manufacturers
(Motorola, Ericsson, and E.F. Johnson) are major, nation­wide radio
equipment manufacturers, we conclude that these manufacturers would not
qualify as small business.

**IV. Description of Projected Reporting, Recordkeeping, and**

**Other Compliance Re­quire­ments**

Phase I non-nationwide licensees who modify their authorizations as
outlined in this Memorandum Opinion and Order on Reconsideration or add
new transmitters within their 38 dBu service contour will be required to
file an FCC Form 600 with the Commission. Phase I non-nationwide
licensees who decide to convert their site-by-site licenses to a single
license authorizing operations throughout the incumbents\' contiguous
and overlapping 38 dBu service contours of their constructed multiple
sites will also be required to file an FCC Form 600. Phase I,
non-nationwide licensees will be required to file an FCC Form 600 to
comply with the requirement that they modify their authorization to
reflect the ERP at which they were operating at the time the decisions
adopted in the *220 MHz Third Report and Order* became effective. The
FCC Form 600 is currently in use and has already received OMB clearance.

Phase I licensees authorized on Channels 161-200 and Channels 1-40 will
be required to coordinate the addition, removal, or modification of
station sites among themselves to avoid interference. Such licensees
will also be required to include, in their application for minor
modification of their authorization to add, remove, or modify a station
site, a certification that the station has been appropriately
coordinated. Phase I licensees authorized on Channels 161-200 will be
required to coordinate the addition, removal, or modification of station
sites with Phase II licensees authorized on Channels 1-40. Such Phase I
licensees will also be required to include, in their application for
minor modification of their authorization to add, remove, or modify a
station site, a certification that the station has been appropriately
coordinated. Licensees seeking a waiver of Section 90.729(b) of the
Commission\'s Rules to operate fixed stations in the 221-222 MHz band at
a power level of 500 watts ERP will be required to gain the consent for
such operation from all affected 220 MHz licensees.

**V. Steps Taken to Minimize Significant Economic Im­pact on**

**Small Entities, and Significant Alternatives Considered**

The actions taken in this Memorandum Opinion and Order on
Reconsideration are in response to petitions for reconsideration
including, we believe, several filed by small businesses. The changes
minimize any possible significant economic impact on small entities,
while remaining consistent with the objectives of this proceeding.

We grant the petitions of Phase I licensees to the extent of permitting,
upon application, modifications to Phase I licensees\' authorizations
which do not expand their 38 dBu service contour. Phase I licensees also
will be permitted to convert their site-by-site licenses to a single
license. The deregulatory nature of these steps helps minimize the
economic im­pact of telecommunications regulation on small entities.

By removing the 220 MHz service spectrum efficiency standard, we grant
the petition that we eliminate the efficiency standard as applied to
paging operations.[^425] The deregulatory nature of this step helps to
minimize the economic im­pact of telecommunications regulation on small
entities. We considered retaining the standard and exempting paging
only, but rejected this course as potentially discouraging the provision
of innovative services. We also considered replacing the standard with a
more lenient standard that would be made stricter over time, but
rejected this course because we believe operators would continue using
equipment acquired under the more lenient standard, in which case the
later standard would have little effect. We also considered conforming
the 220 MHz band spectrum efficiency standard to the standard used in
the Refarming proceeding. We concluded, however, that because it applies
only to aggregated, contiguous channels, and expires in 2001, the 220
MHz standard touches too few licensees for too short a time to
significantly increase equipment development for the refarmed bands.

We also believe that small businesses may be prominent players in
developing this spectrum, and these businesses would directly benefit
from a flexible spectrum use policy that enables them to respond
efficiently to marketplace demand. Given the relatively small amount of
spectrum assigned in a 220 MHz license, we think it is reasonable to
expect that acquisition of the 220 MHz Phase II licenses may be
relatively affordable and therefore this service may be particularly
attractive to small businesses.

Consistent with the conclusions reached in the *Part 1 Third Report and
Order*, we eliminate installment payment plans for small and very small
businesses participating in the 220 MHz service auction, and increase
the level of bidding credits for such entities. We will also amend the
Commission\'s rules to permit auction winners to make their final
payments within 10 business days after the applicable deadline, provided
that they also pay a late fee of 5 percent of the amount due.

While installment payment plans for small entities in the 220 MHz
service are eliminated in the Memorandum Opinion and Order on
Reconsideration, the Commission found that better alternatives to assist
small businesses as well as ensure provision of new services to the
public are to raise bidding credits for existing categories of small
entities.[^426] The Commission believes that bidding credits of
sufficient size will enable small businesses to secure private
financing. This suggestion is consistent with the Commission\'s
experience in other auctions in which installment payments were not
offered and small entities nevertheless have been successful (*e.g*.,
the auction of Wireless Communications Service licenses, for which
bidding credits were heightened to accommodate the lack of installment
payments). Prior to the Memorandum Opinion and Order on Reconsideration,
bidding credits of 10 percent were offered to small businesses and 25
percent to very small businesses. The Commission now offers bidding
credits of 25 percent to small businesses and 35 percent to very small
businesses. The levels of bidding credits adopted offer a reasonable
accommodation for the elimination of installment payments.

**VI. Report to Congress**

We will send a copy of this Supplemental Final Regulatory Flexibility
Analysis, along with the Memorandum Opinion and Order on
Reconsideration, in a report to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996.[^427] In addition, the
Commission will send a copy of the Memorandum Opinion and Order on
Reconsideration, including this Supplemental FRFA, to the Chief Counsel
for Advocacy for SBA. A copy of the Memorandum Opinion and Order on
Reconsideration and this Supplemental FRFA (or summary thereof) also
will be published in the Federal Register.[^428]

**APPENDIX D**

**Revisions to Commission\'s Rules**

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

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

AUTHORITY: 47 U.S.C. 154, 303, 309, and 332, unless otherwise noted.

2\. Section 90.203 is amended by revising paragraph (k) to read as
follows:

**Section 90.203 Type acceptance required.**

\* \* \* \* \*

\(k\) For transmitters operating on frequencies in the 220-222 MHz band,
type acceptance will only be granted for equipment with channel
bandwidths up to 5 kHz, except that type acceptance will be granted for
equipment operating on 220-222 MHz band Channels 1 through 160 (220.0025
through 220.7975/221.0025 through 221.7975), 171 through 180 (220.8525
through 220.8975/221.8525 through 221.8975), and 186 through 200
(220.9275 through 220.9975/221.9275 through 221.9975) with channel
bandwidths greater than 5 kHz.

3\. Section 90.711 is amended by revising paragraph (a) to read as
follows:

**Section 90.711 Processing of Phase II applications.**

\(a\) Phase II applications for authorizations on Channels 166 through
170 and Channels 181 through 185 will be processed on a first‑come,
first‑served basis. When multiple applications are filed on the same day
for these frequencies in the same geographic area, and insufficient
frequencies are available to grant all applications (*i.e.*, if all
applications were granted, violation of the station separation
provisions of Section 90.723(k) would result), these applications will
be considered mutually exclusive and will be subject to random selection
procedures pursuant to Section 1.972 of this chapter.

\* \* \* \* \*

4\. Section 90.723 is amended by revising paragraphs (e) and (f), by
redesignating paragraphs (g), (h), and (i) as paragraphs (i), (j), and
(k), respectively, and by adding paragraphs (g) and (h) to read as
follows:

**Section 90.723 Selection and assignment of frequencies.**

\* \* \* \* \*

\(e\) Phase II licensees authorized on 220-221 MHz frequencies assigned
from Sub-band B will be required to geographically separate their base
station or fixed station transmitters from the base station or fixed
station receivers of Phase I licensees authorized on 221-222 MHz
frequencies 200 kHz removed or less in Sub-band A in accordance with the
Table in paragraph (d) of this section. Such Phase II licensees will not
be required to geographically separate their base station or fixed
station transmitters from receivers associated with additional
transmitter sites that are added by such Phase I licensees in accordance
with the provisions of Section 90.745(a).

\(f\) Phase II licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B and Phase II licensees
with base or fixed stations receiving on Sub-band A 221-222 MHz
frequencies, if such transmitting and receiving frequencies are 200 kHz
or less removed from one another, will be required to coordinate the
location of their base stations or fixed stations to avoid interference
and to cooperate to resolve any instances of interference in accordance
with the provisions of Section 90.173(b).

\(g\) Phase I licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B and Phase I licensees
with base or fixed stations receiving on Sub-band A 221-222 MHz
frequencies (if such transmitting and receiving frequencies are 200 kHz
or less removed from one another) that add, remove, or modify station
sites in accordance with the provisions of Section 90.745(a) will be
required to coordinate such actions with one another to avoid
interference and to cooperate to resolve any instances of interference
in accordance with the provisions of Section 90.173(b).

\(h\) Phase I licensees with base or fixed stations transmitting on
220-221 MHz frequencies assigned from Sub-band B that add, remove, or
modify station sites in accordance with the provisions of Section
90.745(a) will be required to coordinate such actions with Phase II
licensees with base or fixed stations receiving on Sub-band A 221-222
MHz frequencies 200 kHz or less removed.

\(i\) A mobile station is authorized to transmit on any frequency
assigned to its associated base station. Mobile units not associated
with base stations (*see* Section 90.720(a)) must operate on "mobile"
channels.

\(j\) A licensee\'s fixed station is authorized to transmit on any of
the licensee\'s assigned base station frequencies or mobile station
frequencies.

\(k\) Except for nationwide assignments, the separation of co‑channel
Phase I base stations, or fixed stations transmitting on base station
frequencies, shall be 120 kilometers. Except for Phase I licensees
seeking license modification in accordance with the provisions of
Sections 90.751 and 90.753, shorter separations between such stations
will be considered by the Commission on a case‑by‑case basis upon
submission of a technical analysis indicating that at least 10 dB
protection will be provided to an existing Phase I station\'s predicted
38 dBu signal level contour. The existing Phase I station\'s predicted
38 dBu signal level contour shall be calculated using the F(50,50) field
strength chart for Channels 7-13 in Section 73.699 (Fig. 10) of this
chapter, with a 9 dB correction factor for antenna height differential.
The 10 dB protection to the existing Phase I station\'s predicted 38 dBu
signal level contour shall be calculated using the F(50,10) field
strength chart for Channels 7-13 in Section 73.699 (Fig. 10a) of this
chapter, with a 9 dB correction factor for antenna height differential.

5\. Section 90.729 is amended by revising paragraphs (b) and (c) to read
as follows:

**Section 90.729 Limitations on power and antenna height.**

\* \* \* \* \*

\(b\) The maximum permissible ERP for mobile units is 50 watts. Portable
units are considered as mobile units. Licensees operating fixed stations
or paging base stations transmitting on frequencies in the 221-222 MHz
band may not operate such fixed stations or paging base stations at
power levels greater than 50 watts ERP, and may not transmit from
antennas that are higher than 7 meters above average terrain, except
that transmissions from antennas that are higher than 7 meters above
average terrain will be permitted if the effective radiated power of
such transmissions is reduced below 50 watts ERP by 20 log~10~(h/7) dB,
where h is the height above average terrain (HAAT), in meters.

\(c\) Base station and fixed station transmissions on base station
transmit Channels 196-200 are limited to 2 watts ERP and a maximum
antenna HAAT of 6.1 meters (20 ft). Licensees authorized on these
channels may operate at power levels above 2 watts ERP or with a maximum
antenna HAAT greater than 6.1 meters (20 ft) if:

\(1\) They obtain the concurrence of all Phase I and Phase II licensees
with base stations or fixed stations receiving on base station receive
Channels 1-40 and located within 6 km of their base station or fixed
station; and

\(2\) Their base station or fixed station is not located in the United
States/Mexico or United States/Canada border areas.

6\. Section 90.733 is amended by revising paragraphs (d), (e), and (g)
to read as follows:

**Section 90.733 Permissible operations.**

\* \* \* \* \*

\(d\) Licensees, except for licensees authorized on Channels 161 through
170 and 181 through 185, may combine any number of their authorized,
contiguous channels (including channels derived from multiple
authorizations) to form channels wider than 5 kHz.

\(e\) In combining authorized, contiguous channels (including channels
derived from multiple authorizations) to form channels wider than 5 kHz,
the emission limits in Section 90.210(f) must be met only at the
outermost edges of the contiguous channels. Transmitters shall be tested
to confirm compliance with this requirement with the transmission
located as close to the band edges as permitted by the design of the
transmitter. The frequency stability requirements in Section 90.213
shall apply only to the outermost of the contiguous channels authorized
to the licensee. However, the frequency stability employed for
transmissions operating inside the outermost contiguous channels must be
such that the emission limits in Section 90.210(f) are met over the
temperature and voltage variations prescribed in Section 2.995 of this
chapter.

\* \* \* \* \*

\(g\) The transmissions of a Phase I non-nationwide licensee\'s paging
base station, or fixed station transmitting on frequencies in the
220-221 MHz band, must meet the requirements of Sections 90.723(d), (g),
(h), and (k), and 90.729, and such a station must operate at the
effective radiated power and antenna height-above-average-terrain
prescribed in the licensee\'s land mobile base station authorization.

\* \* \* \* \*

7\. Section 90.745 is added to read as follows:

**Section 90.745 Phase I licensee service areas.**

\(a\) A Phase I licensee\'s service area shall be defined by the
predicted 38 dBu service contour of its authorized base station or fixed
station transmitting on frequencies in the 220-221 MHz band at its
initially authorized location or at the location authorized in
accordance with §§ 90.751, 90.753, 90.755 and 90.757 if the licensee has
sought modification of its license to relocate its initially authorized
base station. The Phase I licensee\'s predicted 38 dBu service contour
is calculated using the F(50,50) field strength chart for Channels 7-13
in Section 73.699 (Fig. 10) of this chapter, with a 9 dB correction
factor for antenna height differential, and is based on the authorized
effective radiated power (ERP) and antenna height-above-average-terrain
of the licensee\'s base station or fixed station. Phase I licensees are
permitted to add, remove, or modify transmitter sites within their
existing service area without prior notification to the Commission so
long as their predicted 38 dBu service contour is not expanded. The
incumbent licensee must, however, notify the Commission within 30 days
of the completion of any changes in technical parameters or additional
stations constructed through a minor modification of its license. Such
notification must be made by submitting the appropriate FCC form and
must include the appropriate filing fee, if any. These minor
modification applications are not subject to public notice and petition
to deny requirements or mutually exclusive applications.

\(b\) Phase I licensees holding authorizations for service areas that
are contiguous and overlapping may exchange these authorizations for a
single license, authorizing operations throughout the contiguous and
overlapping service areas. Phase I licensees exercising this license
exchange option must submit specific information for each of their
external base station sites.

8\. The section heading of Section 90.769 is revised to read as follows:

**Section 90.769 Construction and implementation of Phase II nationwide
licenses.**

\* \* \* \* \*

9\. The list of sections preceding Section 90.1001 is revised to read as
follows:

§ 90.1001 220 MHz service subject to competitive bidding.

§ 90.1003 Competitive bidding design for the 220 MHz service.

§ 90.1005 Competitive bidding mechanism.

§ 90.1007 Withdrawal, default and disqualification payments.

§ 90.1009 Bidding application (FCC Form 175 and 175-S short-form).

§ 90.1011 Submission of upfront payments and down payments.

§ 90.1013 Long-form application (FCC Form 601).

§ 90.1015 License grant, denial, default and disqualification.

§ 90.1017 Bidding credits for small businesses and very small
businesses.

§ 90.1019 Eligibility for partitioned licenses.

§ 90.1021 Definitions concerning competitive bidding process.

§ 90.1023 Certifications, disclosures, records maintenance and audits.

§ 90.1025 Petitions to deny and limitations on settlements.

10\. Section 90.1011 is revised to read as follows:

**Section 90.1011 Submission of Upfront Payments and Down Payments.**

\(a\) The Commission will require applicants to submit an upfront
payment prior to the start of a 220 MHz Service auction. The amount of
the upfront payment for each geographic area license auctioned and the
procedures for submitting it will be set forth by the Wireless
Telecommunications Bureau in a Public Notice in accordance with § 1.2106
of this chapter.

\(b\) Each winning bidder in a 220 MHz Service auction must submit a
down payment to the Commission in an amount sufficient to bring its
total deposits up to 20 percent of its winning bid within ten (10)
business days following the release of a Public Notice announcing the
close of bidding.

11\. Section 90.1013 is revised to read as follows:

**Section 90.1013 Long-form Application (FCC Form 601).**

Each successful bidder for a 220 MHz geographic area license must submit
a long-form application (FCC Form 601) within ten (10) business days
after being notified by Public Notice that it is the winning bidder.
Applications for 220 MHz geographic area licenses on FCC Form 601 must
be submitted in accordance with § 1.2107 of this chapter, all applicable
procedures set forth in the rules in this part, and any applicable
Public Notices that the Commission may issue in connection with an
auction. After an auction, the Commission will not accept long-form
applications for 220 MHz geographic area licenses from anyone other than
the auction winners and parties seeking partitioned licenses pursuant to
agreements with auction winners under § 90.1019 of this chapter.

12\. Section 90.1015 is revised to read as follows:

**Section 90.1015 License Grant, Denial, Default, and
Disqualification.**

\(a\) Unless otherwise specified by Public Notice, auction winners are
required to pay the balance of their winning bids in a lump sum within
ten (10) business days following the release of a Public Notice
establishing the payment deadline. If a winning bidder fails to pay the
balance of its winning bids in a lump sum by the applicable deadline as
specified by the Commission, it will be allowed to make payment within
ten (10) business days after the payment deadline, provided that it also
pays a late fee equal to five percent of the amount due. When a winning
bidder fails to pay the balance of its winning bid by the late payment
deadline, it is considered to be in default on its license(s) and
subject to the applicable default payments. Licenses will be awarded
upon the full and timely payment of winning bids and any applicable late
fees.

\(b\) A bidder that withdraws its bid subsequent to the close of
bidding, defaults on a payment due, or is disqualified, is subject to
the payments specified in § 1.2104(g), § 1.2109, and § 90.1007 of this
chapter, as applicable.

13\. Section 90.1017 is revised to read as follows:

**Section 90.1017 Bidding Credits For Small Businesses and Very Small
Businesses.**

\(a\) Bidding Credits. A winning bidder that qualifies as a small
business or a consortium of small businesses as defined in Section
90.1021(b)(1) or Section 90.1021(b)(4) may use a bidding credit of 25
percent to lower the cost of its winning bid. A winning bidder that
qualifies as a very small business or a consortium of very small
businesses as defined in Section 90.1021(b)(2) or Section 90.1021(b)(4)
may use a bidding credit of 35 percent to lower the cost of its winning
bid.

\(b\) Unjust Enrichment - Bidding Credits.

\(1\) If a small business or very small business (as defined in §§
90.1021(b)(1) and 90.1021(b)(2), respectively) that utilizes a bidding
credit under this section seeks to transfer control or assign an
authorization to an entity that is not a small business or a very small
business, or seeks to make any other change in ownership that would
result in the licensee losing eligibility as a small business or very
small business, the small business or very small business must seek
Commission approval and reimburse the U.S. government for the amount of
the bidding credit, plus interest based on the rate for ten year U.S.
Treasury obligations applicable on the date the license was granted, as
a condition of approval of the assignment, transfer, or other ownership
change.

\(2\) If a very small business (as defined in § 90.1021(b)(2) that
utilizes a bidding credit under this section seeks to transfer control
or assign an authorization to a small business meeting the eligibility
standards for a lower bidding credit, or seeks to make any other change
in ownership that would result in the licensee qualifying for a lower
bidding credit under this section, the licensee must seek Commission
approval and reimburse the U.S. government for the difference between
the amount of the bidding credit obtained by the licensee and the
bidding credit for which the assignee, transferee, or licensee is
eligible under this section, plus interest based on the rate for ten
year U.S. Treasury obligations applicable on the date the license was
granted, as a condition of the approval of such assignment, transfer, or
other ownership change.

\(3\) The amount of payments made pursuant to paragraphs (b)(1) and
(b)(2) of this section will be reduced over time as follows: A transfer
in the first two years of the license term will result in a forfeiture
of 100 percent of the value of the bidding credit (or the difference
between the bidding credit obtained by the original licensee and the
bidding credit for which the post-transfer licensee is eligible); in
year 3 of the license term the payment will be 75 percent; in year 4 the
payment will be 50 percent; and in year 5 the payment will be 25
percent, after which there will be no assessment.

**Separate Statement**

**of**

**Commissioner Susan Ness**

*Re*: *Use of the 220-222 MHz Band, PR Docket No. 89-552*

I write separately to repeat my long-held view that the Commission
should not change its rules on the eve of a spectrum auction.

I strongly support the policy, embodied in the Omnibus Balanced Budget
Act of 1993, of assigning radio spectrum through the use of auctions.
But reliance on market mechanisms only works if one pays attention to
the realities of the market. Business people don\'t just show up at an
auction, ready to bid; first, they need to formulate business plans and
secure financing.

Changing the rules for the service on the eve of the auction throws off
business plans. While I understand how circumstances have changed and
have no particular objection on the merits to eliminating, on our own
initiative, the spectrum efficiency standard for 220 MHz services, I
also see no compelling need to eliminate the efficiency standard at the
eleventh hour or to further complicate the already tortured history of
this band.

With or without a prescribed efficiency standard, as a result of the
competitive bidding process, licensees will have an incentive to be
efficient in their use of the spectrum. But this change in our rules
will inevitably necessitate reevaluation of business plans by potential
bidders. Some who planned to bid may no longer be interested. Some who
planned not to bid may suddenly wish to, but lack the time to formulate
a business plan and to secure financial backing.

The only thing worse than changing the rules of the game right before it
is played is to change the rules after the fact, as has also occurred
with distressing frequency. Of course, new facts or new thinking may
justify adjustments, but at a minimum we need to think carefully about
the effects of any changes on the operation of market mechanisms. In my
view, we can and should do more to avoid auction-eve \-- or post-auction
\-- changes in our rules.

[^1]: ^?^ Amendment of Part 90 of the Commission\'s Rules To Provide for
    the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, Second Report and Order, 11 FCC Rcd
    3668 (1996) (*220 MHz Second Report and Order*).

[^2]: ^?^ Amendment of Part 90 of the Commission\'s Rules To Provide for
    the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, Implementation of Section 309(j) of
    the Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    Third Report and Order; Fifth Notice of Proposed Rulemaking, 12 FCC
    Rcd 10943 (1997) (*220 MHz Third Report and Order*).

[^3]: ^?^ A list of parties (together with short title references)
    filing petitions for reconsideration or clarification and comments
    to the *220 MHz Second Report and Order* is contained in Appendix A.

[^4]: ^?^ A list of parties (together with short title references)
    filing petitions for reconsideration or clarification, comments, and
    reply comments to the *220 MHz Third Report and Order* is contained
    in Appendix B.

[^5]: ^?^ For a description of the licensing phases for 220 MHz service,
    see note 10, *infra*.

[^6]: ^?^ 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
    Services, PR Docket No. 89-552, Report and Order, 6 FCC Rcd 2356
    (1991) (*220 MHz Report and Order*).

[^7]: ^?^ At the time of the adoption of the *220 MHz Report and Order*,
    the Commission used the term "commercial" to refer to licensees who
    would operate as carriers under Part 90 of the Commission\'s Rules
    and provide commercial radio services to end users. The Commission
    used the term "non-commercial" to refer to licensees who would use
    spectrum to satisfy their own internal communications requirements.
    These terms do not correlate directly with the terms Commercial
    Mobile Radio Service (CMRS) and Private Mobile Radio Service (PMRS),
    as defined in Section 20.3 of the Commission\'s Rules, 47 C.F.R. §
    20.3.

[^8]: ^?^ *220 MHz Report and Order*, 6 FCC Rcd at 2364-65 (paras. 59,
    62).

[^9]: ^?^ Acceptance of 220-222 MHz Private Land Mobile Applications,
    Order, 6 FCC Rcd 3333 (1991). The Private Radio Bureau stated that
    the imposition of a freeze on the acceptance of new applications was
    necessary to allow the Bureau to process the large number of 220 MHz
    applications received. *Id.* at 3333 (para. 4).

[^10]: ^?^ Licensees granted authorizations from among applications
    filed on or before May 24, 1991, are hereinafter referred to as
    Phase I licensees. On August 28, 1995, the Commission released the
    *Third Notice*, which proposed market area licensing and more
    flexible technical rules for the next phase (Phase II) of licensing
    of the 220 MHz band. Amendment of Part 90 of the Commission\'s Rules
    To Provide for the Use of the 220-222 MHz Band by the Private Land
    Mobile Radio Service, PR Docket No. 89-552, RM-8506, Implementation
    of Sections 3(n) and 332 of the Communications Act, GN Docket No.
    93-252, Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, 220-222 MHz, PP Docket No. 93-253, Second
    Memorandum Opinion and Order and Third Notice of Proposed
    Rulemaking, 11 FCC Rcd 188 (1995) (*Third Notice*).

[^11]: ^?^ *See* Evans v. FCC, Order, per curiam, Case No. 92-1317 (D.C.
    Cir. Mar. 18, 1994) (*Evans v. FCC*).

[^12]: ^?^ In a Public Notice released on September 10, 1992, the
    Private Radio Bureau announced that the construction deadline for
    all non-nationwide 220 MHz stations would be 120 days after the
    disposition of the *Evans v. FCC* case. Public Notice, 7 FCC Rcd
    6378 (1992). Following the disposition of the case, the Bureau
    extended the construction deadline to December 2, 1994, in an Order
    released on March 30, 1994. *See* 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 Services, PR Docket No. 89-552,
    Order, 9 FCC Rcd 1739 (1994). In the *CMRS Third Report and Order*,
    the Commission established April 4, 1995, as the construction
    deadline. Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services, GN
    Docket No. 93-252, Third Report and Order, 9 FCC Rcd 7988, 8077
    (para. 184) (1994) (*CMRS Third Report and Order*), *recon.
    pending*. On February 17, 1995, the Wireless Telecommunications
    Bureau released an Order extending the deadline to December 31,
    1995. *See* 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 Services, PR Docket No. 89-552, Order, 10 FCC Rcd 3356
    (Wireless Tel. Bur. 1995). On December 15, 1995, the Bureau released
    an Order providing for a further extension of the construction
    deadline contingent upon the closure of the Commission as a result
    of any furlough of Federal Government employees. The ensuing 23-day
    Federal furlough resulted in an extension of the construction
    deadline to February 2, 1996, pursuant to a formula established in
    the Bureau Order. *See* 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 Services, PR Docket No. 89-552, Order, 11 FCC Rcd
    9710 (Wireless Tel. Bur. 1995).

[^13]: ^?^ Amendment of Part 90 of the Commission\'s Rules To Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, GN Docket No. 93-252, Fourth Notice
    of Proposed Rulemaking, 11 FCC Rcd 835 (1995) (*Fourth Notice*).

[^14]: ^?^ The Commission established 50 Designated Filing Areas in its
    initial licensing of the 900 MHz Specialized Mobile Radio band.
    *See* Public Notice, Private Land Mobile Application Procedures for
    Spectrum in the 896-901 MHz and 935-940 MHz bands, DA 86-173, 1 FCC
    Rcd 543 (1986).

[^15]: ^?^ *220 MHz Second Report and Order,* 11 FCC Rcd at 3670 (para.
    9).

[^16]: ^?^ *Id.*

[^17]: ^?^ *Id.*

[^18]: ^?^ *Id.* at 3674 (para. 21).

[^19]: ^?^ *Id.* at 3674 (para. 22).

[^20]: ^?^ We refer herein to licenses granted pursuant to this new
    framework as Phase II licenses. Licenses granted under the rules
    that existed prior to the adoption of the *220 MHz Third Report and
    Order* are referred to as Phase I licenses.

[^21]: ^?^ As indicated in the *220 MHz Third Report and Order*, Phase
    II licensees may meet this requirement by submitting a technical
    analysis demonstrating that the predicted 28 dBuV/m interfering
    contour of their base station does not overlap the predicted 38
    dBuV/m service contour of the Phase I licensee\'s base station. *220
    MHz Third Report and Order*, 12 FCC Rcd at 11025-26 (para. 173).

[^22]: ^?^ Unless otherwise indicated, any references to a station\'s
    "contour" or "service contour" herein refers to that station\'s
    *predicted* F(50,50) service contour, as determined by Figure 10 of
    Section 73.699 of the Commission\'s Rules, 47 C.F.R. § 73.699.

[^23]: ^?^ *See* Section 90.723(i) of the Commission\'s Rules, 47 C.F.R.
    § 90.723(i).

[^24]: ^?^ In its Third Order Petition, AMTA, a trade association,
    indicates that its members include 220 MHz licensees. AMTA also
    indicates in its Third Order Petition that its 220 MHz Council
    "includes representatives of the vast majority of incumbent
    licensees, 220 MHz organizers, and narrowband 220 MHz equipment
    suppliers," and is "actively involved in all aspects of the 220 MHz
    marketplace." AMTA Third Order Petition at 2. SMR, in its Third
    Order Petition, indicates that it manages 85 constructed Phase I
    systems. SMR Third Order Petition at 2. INTEK is the parent company
    of Securicor Limited and Roamer One, Inc. Securicor Limited is a
    manufacturer of 220 MHz radio equipment. Roamer One, Inc., in
    comments filed on September 27, 1995, indicated that, at that time,
    it was "operating eighty-five (85) 220 MHz systems, and \[had\]
    shipped RF equipment or begun installation for approximately
    fifty-five (55) more systems." Roamer One, Inc., Comments at 2. In
    its Third Order Petition, INTEK indicates that Roamer One, Inc., is
    one of the leading operators and managers of 220 MHz land mobile
    radio systems. INTEK Third Order Petition at 2. PERS indicates that
    it has been involved in the construction of over one-hundred 220 MHz
    systems and that it represents a substantial number of incumbent
    licensees. PERS Third Order Comment at 3 (unpaginated). In its Third
    Order Petition, PCIA, a trade association, indicates that it has
    "participated in all phases of this 220 MHz proceeding." PCIA Third
    Order Petition at 1. SEA is a manufacturer of 220 MHz radio
    equipment. In its Third Order Petition, SEA indicates that it has
    been involved in the development of 5 kHz narrowband technology for
    land mobile radio users since 1981. SEA Third Order Petition at 2.

[^25]: ^?^ USMC, which indicates in its Third Order Comments that it
    "believes that it manages more systems in the major markets on the
    East Coast than any other 220 MHz management company," concurs with
    AMTA\'s petition to increase co-channel protection for Phase I
    non-nationwide licensees. USMC Third Order Comments at 2.

[^26]: ^?^ SMR Third Order Reply at 6-8.

[^27]: ^?^ AMTA Third Order Petition at 4.

[^28]: ^?^ AMTA is referring to the comments filed in response to the
    *Third Notice*.

[^29]: ^?^ The service contour to be protected may be referred to as the
    "protected service contour."

[^30]: ^?^ AMTA Third Order Petition at 5.

[^31]: ^?^ *Id.* at 8.

[^32]: ^?^ *Id*. at 6.

[^33]: ^?^ SMR Third Order Petition at 6; AMTA Third Order Petition at
    6-7. INTEK claims that at the 24 dBu contour, customers are able to
    access a control channel. INTEK Third Order Petition at 4. *See
    also* INTEK Third Order Petition, App. A.

[^34]: ^?^ Providing 10 dB protection to the 38 dBu service contour
    resulted in a 120 km distance separation between co-channel base
    stations, which was used to determine the assignment of Phase I 220
    MHz licenses. Had the Commission provided 10 dB protection to the 28
    dBu service contour instead, and adopted the maximum allowable power
    and antenna height parameters that were adopted in the *220 MHz
    Report and Order* (*i.e.*, 500 watts ERP and 150 meters HAAT), the
    minimum distance between co-channel stations would have been 170 km,
    and, as a result, fewer Phase I 220 MHz licenses would have been
    awarded from among the applications received in 1991.

[^35]: ^?^ In theory, the likelihood of interference at an EA or
    Regional border between Phase II licensees is greater than the
    likelihood of interference between Phase I and Phase II stations.
    This is because at the EA or Regional border both Phase II licensees
    may provide the *same* 38 dBu signal, but Phase II licensees must
    provide 10 dB protection to the 38 dBu signal of the Phase I
    licensee. It is interesting to note, given this, that no petitions
    called for changes to the protection criteria for EA and Regional
    licensees or changes to the procedures under which interference
    disputes between such licensees are resolved. Moreover, none of the
    parties who argue for the use of 28 dBu service contour for Phase I
    licensees petitioned for changes to the Commission\'s rules to
    similarly limit Phase II signals to 28 dBu, rather than 38 dBu, at
    the border.

[^36]: ^?^ For example, the members of AMTA\'s 220 MHz Council,
    representing all elements of the 220 MHz service community, have,
    for many years, worked together to advance the 220 MHz service.
    *See* AMTA Third Order Petition at 2.

[^37]: ^?^ *See* paras. -, *infra*, for further discussion of this
    issue.

[^38]: ^?^ There is precedent for this type of action. The Grade A and
    Grade B television contours, for example, vary among the three TV
    bands (*i.e.*, the Grade A and Grade B contours are 68 dBu and 47
    dBu, respectively for Channels 2-6; 71 dBu and 56 dBu, respectively,
    for Channels 7-13; and 74 dBu and 64 dBu, respectively, for Channels
    14-69). Yet, in order to enable television stations operating in
    these three bands to produce approximately the same service area,
    the Commission has established widely different maximum allowable
    parameters for stations in each band.

[^39]: ^?^ *See*, *e.g.*, para. , *infra*.

[^40]: ^?^ Of course, if a 220 MHz licensee or an 800 MHz or 900 MHz
    licensee elects to operate at a power or antenna height less than
    maximum allowable, then this is a decision the licensee chooses to
    make, and its resulting service area will be proportionally smaller
    than the maximum attainable (*i.e.*, less than 28 miles for the 220
    MHz service, and less than 29 miles for the 800 and 900 MHz
    services).

[^41]: ^?^ The 38 dBu contour of a maximum parameter Phase I station
    would extend approximately 28 miles. The 28 dBu contour of a maximum
    parameter Phase I station, however, would extend approximately 40
    miles.

[^42]: ^?^ AMTA Third Order Petition at 6-7.

[^43]: ^?^ *Id.* at 5.

[^44]: ^?^ *Id.* at 6.

[^45]: ^?^ *Id.* Presumably, AMTA, in making this observation, is
    referring to data that it anticipated would be furnished by other
    commenters in support of AMTA\'s request for the adoption of a 28
    dBu service contour. AMTA itself did not provide any such data.

[^46]: ^?^ The R-6602 curves are found in Section 73.699 of the
    Commission\'s Rules, 47 C.F.R.

    § 73.699. They were developed in the Commission\'s report "R-6602,
    Development of VHF and UHF Propagation Curves for TV and FM
    Broadcasting," issued Sept. 7, 1966. The "F(50,50)" curves in
    Section 73.699 predict the location at which a transmitter,
    operating on a given frequency and at a given power and antenna
    height, will produce a particular signal strength 50 percent of the
    time and at 50 percent of locations. Thus, for example, the curves
    predict that the location of the F(50,50) 38 dBu signal for a 500
    watt ERP/150 meter HAAT station is approximately 45 km from the
    transmitter; and that the location of the F(50,50) 28 dBu signal for
    a 500 watt ERP/150 meter HAAT station is approximately 65 km from
    the transmitter.

[^47]: ^?^ AMTA states that systems operating at 500 watts ERP and 500
    feet HAAT will provide a high quality signal to about 50 percent of
    the locations, 50 percent of the time, throughout the 28 dBu
    contour. The provision of a particular signal quality, "high
    quality" or otherwise, within a given contour, however, is
    independent of the particular power and antenna height of the
    station transmitter. Because service contours expand and contract as
    a function of power and antenna height, the 28 dBu service contour
    of a station operating at less than 500 watts ERP and 500 feet HAAT
    would simply be smaller in radius than the 28 dBu contour of a
    station operating *at* 500 watts ERP and 500 feet HAAT. If it is
    AMTA\'s assertion that a high quality signal is present about 50
    percent of the locations, 50 percent of the time throughout a 28 dBu
    contour, this would be the case regardless of the station\'s
    operating parameters. Presumably, AMTA is simply using a station
    operating at 500 watts ERP and 500 feet HAAT as an *example* of one
    that provides a "high quality" signal, recognizing that it is not
    necessary for the station to be operating at such parameters in
    order to provide such a signal.

[^48]: ^?^ AMTA Third Order Petition at 8.

[^49]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11027-28
    (paras. 176-177).

[^50]: ^?^ AMTA\'s use of the term "reliable service" is not new to this
    proceeding. In their comments to the *Third Notice* as well as their
    petitions for reconsideration, commenters suggested that we provide
    protection to contours other than the 38 dBu contour because, they
    claim, "reliable" service is being received at such contours.
    Neither AMTA nor these commenters, however, have defined the term
    "reliable service," nor stated what criteria they use to determine a
    "reliable" 220 MHz signal.

[^51]: ^?^ *See* AMTA Third Order Petition at 7.

[^52]: ^?^ INTEK Third Order Petition at 4.

[^53]: ^?^ *Id.*

[^54]: ^?^ *Id.* at 5.

[^55]: ^?^ *Id.* at 4.

[^56]: ^?^ To be precise, each of the maps employs the Longley-Rice
    terrain-based, signal prediction model to show the locations where
    particular field strengths (*i.e.*, ≥ 38 dBu, ≥ 28 dBu or ≥ 24 dBu)
    are predicted to exist. INTEK Third Order Petition, Technical
    Showing at 2 (unpaginated), App. A-C.

[^57]: ^?^ *Id*., Technical Showing at 1 (unpaginated).

[^58]: ^?^ SMR Third Order Petition at 7.

[^59]: ^?^ These licenses were authorized in 1993.

[^60]: ^?^ We cite this submission as the "Vega Report" or the "Report."

[^61]: ^?^ SMR Third Order Reply at 4. The data provided in the Vega
    Report is the only measured data provided by any commenter in this
    reconsideration proceeding.

[^62]: ^?^ Vega Report at 1-7.

[^63]: ^?^ *Id.* at 4.

[^64]: ^?^ *Id.* (emphasis in original).

[^65]: ^?^ 16 Fed. Reg. 3072 (Apr. 7, 1951).

[^66]: ^?^ In 1951, the UHF television band extended to Channel 83.

[^67]: ^?^ Specifically, the Vega Report asserts that we "should apply
    an additional 10 dB reduction to the 220 MHz protected service
    contour to account for the 600 MHz difference between the 220 MHz
    band and the 800/900 MHz bands and the associated differences in
    propagation." Vega Report at 4.

[^68]: ^?^ We note that the distance of the 38 dBu contour of a maximum
    parameter 220 MHz station (*i.e.*, 28 miles) is much closer to the
    distance of the Grade A contour of a maximum parameter Channel 7-13
    television station (*i.e.*, 52 miles) than it is to the distance of
    the Grade B contour of a maximum parameter Channel 7-13 television
    station (*i.e.*, 75 miles).

[^69]: ^?^ Vega Report at 5.

[^70]: ^?^ *Id.*

[^71]: ^?^ *Id.*

[^72]: ^?^ SMR Third Order Reply at 4-6.

[^73]: ^?^ Vega Report at 6.

[^74]: ^?^ *See id*. at Exhibit 3. According to the Report, data at
    azimuths 45^0^, 90^0^, 135^0^, and 180^0^ were unavailable due to
    mountainous terrain. The Report also indicates that data in the
    315^0^ direction at the 48-mile location was unavailable because
    this location was over water.

[^75]: ^?^ SMR Third Order Reply at 6.

[^76]: ^?^ One of these mountains is Mt. Lukens, which was the location
    of the 220 MHz base station used by INTEK in its analysis. *See*
    para. , *supra*.

[^77]: ^?^ Section 90.621(2) also provides special co-channel separation
    provisions for stations located in Northern California.

[^78]: ^?^ Also based on our knowledge of the terrain in the area around
    Tiger Mountain, we can state with confidence that any signal
    measurements taken in the mountainous areas to the east and
    southeast of Tiger Mountain would be significantly less than
    predicted by the Section 73.699 curves.

[^79]: ^?^ This is due to the fact that the value of a signal strength
    can vary significantly over very short distances, especially in
    areas of unusual terrain, or where there is blockage from foliage or
    other obstructions. The determination of the curves found in Section
    73.699 of the Commission\'s Rules, for example, required extensive
    field measurements in order to account for such varying types of
    topography and environment. Relatedly, in Section 73.686 of the
    Commission\'s Rules, we prescribe procedures for the measurement of
    television signals. For example, we generally require that field
    strength measurements of television signals be taken over a "mobile
    run" of at least 100 feet, with signals continuously measured on a
    chart recorder over the length of the run; and under certain
    conditions, we may also require a "cluster" of five spot
    measurements, with four of the measurements taken within 200 feet of
    the first. *See* Section 73.686(b)(2) of the Commission\'s Rules, 47
    C.F.R. § 73.686(b)(2).

[^80]: ^?^ If this were the case, it could be considered justification
    for revising our determination of the location of predicted field
    strength contours for the 220 MHz service.

[^81]: ^?^ SMR Third Order Petition at 4.

[^82]: ^?^ *See* Amendment of Part 22 of the Commission\'s Rules To
    Provide for Filing and Processing of Applications for Unserved Areas
    in the Cellular Service and To Modify Other Cellular Rules, CC
    Docket No. 90-6, Second Report and Order, 7 FCC Rcd 2449 (1992).

[^83]: ^?^ *See* Amendment of Parts 21, 43, 74, 78 and 94 of the
    Commission\'s Rules Governing Use of the Frequencies in the 2.1 and
    2.5 GHz Bands Affecting Private Operational Fixed Microwave Service,
    Multipoint Distribution Service, Multichannel Multipoint
    Distribution Service, Instructional Television Fixed Service, and
    Cable Television Relay Service, Second Order on Reconsideration,
    Gen. Docket Nos. 90-54 and 80-113, 10 FCC Rcd 7074 (1995).

[^84]: ^?^ We cite this submission as the "TCG Report."

[^85]: ^?^ INTEK Third Order Reply at 3.

[^86]: ^?^ This frequency approximates the mean frequency of 800 MHz and
    900 MHz systems.

[^87]: ^?^ TCG Report at 1-2 (unpaginated).

[^88]: ^?^ INTEK is the parent company of Roamer One, Inc. *See* note
    **Error! Bookmark not defined.**, *supra*.

[^89]: ^?^ TCG Report at 2 (unpaginated).

[^90]: ^?^ *See* paras. -, *supra*.

[^91]: ^?^ *See also* note **Error! Bookmark not defined.**, *supra*.

[^92]: ^?^ PERS Third Order Comments at 3 (unpaginated).

[^93]: ^?^ *Id.* at Exhibits 1A, 1B, and 1C. PERS indicates that these
    figures provide "a propagation study done using formulations refined
    and verified over the past three years." *Id.* at 4 (unpaginated).

[^94]: ^?^ *Id.* at 4 (unpaginated).

[^95]: ^?^ AMTA Third Order Petition at 7.

[^96]: ^?^ *Id.* PERS also notes that "the prevalent use of
    single-sideband rather than conventional FM technology to meet the
    technical requirements the Commission established for its 220-222
    MHz allocation demands greater co-channel protection to achieve the
    appropriate service level," and that "the mere fact that sideband
    operation does not provide the receiver capture effect of FM should
    underscore the need for further consideration." PERS Third Order
    Comments at 4 (unpaginated).

[^97]: ^?^ SMR Third Order Reply at 7-8.

[^98]: ^?^ Using the Section 73.699 curves, the distance of the 38 dBu
    F(50,50) contour of a protected station operating at 500 watts ERP
    and 150 meters is calculated to be 45 km, and the distance of the 28
    dBu F(50,10) contour of an interfering station operating at 500
    watts ERP and 150 meters is calculated to be 75 km. These figures,
    when added together, produce the 120 km co-channel separation
    distance.

[^99]: ^?^ *See* Section 90.763(b)(1) of the Commission\'s Rules, 47
    C.F.R. § 90.763(b)(1).

[^100]: ^?^ This is accomplished by employing the Section 73.699 curves
    (Figures 10 and 10a) to calculate the appropriate separation
    distance, based on the use of the 38 dBu F(50,50) contour for the
    Phase I station and the 28 dBu F(50,10) contour for the Phase II
    station.

[^101]: ^?^ Because we have decided not to change the protected contour
    for Phase I stations, we have not changed the standard separation
    distance between Phase I and Phase II stations.

[^102]: ^?^ For example, an 18 dBu interfering contour for a Phase II
    station operating at maximum parameters (*i.e.*, 500 watts ERP/150
    meters HAAT) is 104 km, but an 18 dBu interfering contour for a
    Phase II station operating at 100 watts ERP/50 meters HAAT is only
    64 km. Thus, under SMR\'s apparent proposal, a Phase II licensee
    operating at these lesser parameters and attempting to provide 10 dB
    protection to the 28 dBu contour of a Phase I licensee would have to
    locate its base station 40 km farther from the Phase I base station
    than necessary. And if the *Phase I* licensee, too, was operating at
    less than maximum parameters, the Phase II licensee would have to
    locate its base station an even greater distance from the Phase I
    base station than necessary.

[^103]: ^?^ PCIA Third Order Petition at 3.

[^104]: ^?^ *Id.* at 3-4.

[^105]: ^?^ SEA Third Order Comments at 13.

[^106]: ^?^ *Id*. Employing the Section 73.699 curves, the separation
    between a Phase II station providing 10 dB protection to a Phase I
    station (where both stations are operating at maximum parameters) is
    120 km. The 140 km distance recommended by SEA results from a Phase
    II station providing 18 dB protection to a Phase I station ---
    again, where both stations are operating at maximum parameters.

[^107]: ^?^ The Vega Report also contends that an 18 dB protection ratio
    "is the more appropriate measurement for the 220 MHz service" but
    similarly provides no technical justification for this assertion.
    *See* Vega Report at 5 n.17.

[^108]: ^?^ AMTA Third Order Petition at 4. AMTA also notes that it
    anticipates that many Phase I incumbents will become successful
    Phase II licensees because of their existing investment and
    commitment to the 220 MHz industry. *See* *id*. at 3 n.5.

[^109]: ^?^ *Id.* at 4 n.7.

[^110]: ^?^ *Id*.

[^111]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11025 (para.
    173).

[^112]: ^?^ *Id.* at 11026 (para. 174).

[^113]: ^?^ *Id.*

[^114]: ^?^ *Id.*

[^115]: ^?^ PCIA Third Order Petition at 2-3; SEA Third Order Comments
    at 13-14; INTEK Third Order Petition at 5-8; SMR Third Order Reply
    at 8-9.

[^116]: ^?^ PCIA Third Order Petition at 2; *see also* SMR Third Order
    Reply at 9 (arguing that using maximum facility values to determine
    a licensee\'s protected service area will more closely track
    Commission actions in other services).

[^117]: ^?^ PCIA Third Order Petition at 2-3; SEA Third Order Comments
    at 14.

[^118]: ^?^ INTEK Third Order Petition at 5-6; PCIA Third Order Petition
    at 2-3; SEA Third Order Comments at 14; SMR Third Order Reply at
    8-9.

[^119]: ^?^ INTEK Third Order Petition at 7-8.

[^120]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11026 (para.
    174).

[^121]: ^?^ *Id.*

[^122]: ^?^ The decisions adopted in the 220 MHz Third Report and Order
    became effective on August 21, 1997.

[^123]: ^?^ For licensees that relocated from their initially authorized
    base station site to a new location, in accordance with the
    provisions of the *220 MHz Second Report and Order*, that new
    location would likely be at a different HAAT than the initial base
    station site. The Commission allowed such licensees to be authorized
    at that new HAAT, even if it was higher than their initially
    authorized HAAT, but did not permit them to obtain authorization at
    a higher ERP. *See* paras. -, *infra*. The area being served by a
    Phase I licensee that relocated its base station is therefore
    calculated based on the HAAT and the ERP of the relocated base
    station.

[^124]: ^?^ Operations in the 800 MHz and 900 MHz services are governed
    by Subpart S of Part 90 of the Commission\'s Rules, 47 C.F.R. §§
    90.601-90.699.

[^125]: ^?^ The term "short-spacing" in Subpart S of Part 90 refers to
    the locating of base stations at distances closer than the standard
    separation distance between co-channel Subpart S stations (*i.e.*,
    113 km (70 miles)).

[^126]: ^?^ Prior to the use of the Table, applicants seeking to
    short-space without gaining the consent of all affected co-channel
    licensees were required to file a waiver request that included a
    technical showing demonstrating 10 dB protection to the 40 dBu
    contour of all existing co-channel facilities. *See* Amendment of
    Part 90 of the Commission\'s Rules to Permit the Short‑Spacing of
    Specialized Mobile Radio Systems Upon Concurrence from Co‑Channel
    Licensees, PR Docket No. 90-34, Report and Order, 6 FCC Rcd 4929
    (para. 5) (1991) (*Short-Spacing Report and Order*).

[^127]: ^?^ *Id*. at 4931 (para. 14). *See also* Amendment of Part 90 of
    the Commission\'s Rules to Permit the Short‑Spacing of Specialized
    Mobile Radio Systems Upon Concurrence from Co‑Channel Licensees, PR
    Docket No. 90-34, Memorandum Opinion and Order, 7 FCC Rcd 6069
    (para. 2) (1992) (*Short-Spacing Memorandum Opinion and Order*).

[^128]: ^?^ Co-channel Protection Criteria for Part 90, Subpart S
    Stations Operating Above 800 MHz, PR Docket No. 90-60, Report and
    Order, 8 FCC Rcd 7293, 7295-96 (para. 13) (1993).

[^129]: ^?^ *See* *Short-Spacing Report and Order*, 6 FCC Rcd at 4936
    (n.44) (1991). *See also* *Short-Spacing Memorandum Opinion and
    Order* 7 FCC Rcd at 6070 (para. 7) (1992).

[^130]: ^?^ We assume that SMR, in stating that "applying maximum
    facilities" in determining a Phase I licensee\'s service contour
    "will more closely track actions in other services" is, too,
    referencing the Commission\'s rules that apply to Subpart S
    stations. SMR Third Order Reply at 9.

[^131]: ^?^ A height of 150 meters is roughly equivalent to the height
    of 50-story building.

[^132]: ^?^ The 38 dBu service contour based on maximum operating
    parameters (*i.e.*, 500 watts ERP and 150 meters HAAT) is
    approximately 28 miles. The 38 dBu service contour of a base station
    with operating parameters of 100 watts ERP and 150 meters HAAT, for
    example, is approximately 20 miles. Thus, if we were to calculate
    the 38 dBu service contour for such a base station *based* on
    maximum operating parameters, a potential loss of service to the
    public could occur in the area between 20 and 28 miles of the Phase
    I licensee\'s base station (an area of approximately 1,200 square
    miles).

[^133]: ^?^ In the *220 MHz Third Report and Order*, for example, the
    Commission emphasized that it did "not think it would be appropriate
    to allow Phase I licensees to expand their service areas by
    increasing their power and antenna height without the filing of
    mutually exclusive applications." *220 MHz Third Report and Order*,
    12 FCC Rcd at 11026 (para. 174).

[^134]: ^?^ *See* *id*.

[^135]: ^?^ *Id.* at 11000-01 (para. 122).

[^136]: ^?^ *Id.*

[^137]: ^?^ Glenayre Third Order Petition at 2; PCIA Third Order Reply
    at 2.

[^138]: ^?^ Glenayre Third Order Petition at 2; PCIA Third Order Reply
    at 2.

[^139]: ^?^ Comtech Third Order Petition at 10-11.

[^140]: ^?^ 47 C.F.R. § 90.729(a). For references to HAAT in the text of
    the *220 MHz Third Report and Order*, see 12 FCC Rcd at 11008 (para.
    139), 11013 (para. 148), 11026 (para. 174).

[^141]: ^?^ 47 C.F.R. § 90.729(b). For references to height above ground
    in the text of the *220 MHz Third Report and Order*, see 12 FCC Rcd
    at 11007-08 (paras. 138-139), 11012 (para. 145), 11013-14 (paras.
    150-151). *See also* Sections 90.729(c) and 90.733(h)(4) of the
    Commission\'s Rules, 47 C.F.R. §§ 90.729(c), 90.733(h)(4).

[^142]: ^?^ SEA Third Order Petition at 2-5; SEA Third Order Comments at
    2; INTEK Third Order Comments at 7.

[^143]: ^?^ SEA Third Order Comments at 2.

[^144]: ^?^ SEA Third Order Petition at 2-3.

[^145]: ^?^ *Id.* at 3-4.

[^146]: ^?^ *Id.* at 4-5 & n.6. Section 90.729(c) of the Commission\'s
    Rules places limitations on the height and power of base stations
    operating on Channels 196-200. The height limit in this rule is
    associated with the station transmitting antenna\'s height above
    ground. 47 C.F.R. § 90.729(c).

[^147]: ^?^ As currently provided in Section 90.729(b) of the
    Commission\'s Rules, a licensee may operate a station at a height
    greater than 7 meters above ground so long as it reduces its power
    in accordance with the formula provided in that section. In
    modifying Section 90.729(b) to limit the height of transmitting
    antennas to 7 meters HAAT, we also modify the rule to indicate that
    licensees may operate a station at a height greater than 7 meters
    HAAT so long as they reduce their power in accordance with the
    formula. 47 C.F.R. § 90.729(b).

[^148]: ^?^ *See* Section 90.729(b) of the Commission\'s Rules, 47
    C.F.R. § 90.729(b); *220 MHz Third Report and Order*, 12 FCC Rcd at
    11007-08 (paras. 138-139), 11013-14 (paras. 150-151). The 50 watt
    ERP limit applies to all 220 MHz service mobile transmitters,
    including Phase I and Phase II licensees, both nationwide and
    non-nationwide.

[^149]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11007-08
    (paras. 138-139), 11013-14 (paras. 150-151).

[^150]: ^?^ Comtech Third Order Petition at 4-6; Glenayre Third Order
    Petition at 4-5.

[^151]: ^?^ Comtech Third Order Petition at 4.

[^152]: ^?^ *Id.*

[^153]: ^?^ *Id.*

[^154]: ^?^ *Id.* at 4-5. *See* Sections 22.531 and 22.535 of the
    Commission\'s Rules, 47 C.F.R. §§ 22.531, 22.535.

[^155]: ^?^ Comtech Third Order Petition at 5, citing 47 C.F.R. §
    22.535.

[^156]: ^?^ Glenayre Third Order Petition at 4.

[^157]: ^?^ *See* SEA Comments at 2. In order to reduce the likelihood
    of interference to adjacent channel operations in the 220 MHz band,
    we have, in response to SEA\'s petition in this instant proceeding,
    modified Section 90.729(b) and (c) of the Commission\'s Rules to
    require licensees operating on channels in the 221-222 MHz band to
    adhere to an antenna height limit associated with their station
    antenna\'s HAAT, rather than the antenna\'s height above ground.
    *See* paras. -, *supra*.

[^158]: ^?^ Base station transmit frequencies are located at 220-221
    MHz, and mobile station transmit frequencies are located at 221-222
    MHz. *See* Section 90.715 of the Commission\'s Rules, 47 C.F.R. §
    90.715.

[^159]: ^?^ There are two-hundred 5 kHz channel pairs in the 220 MHz
    band. They are numbered from "1" to "200." *See* Section 90.715 of
    the Commission\'s Rules, 47 C.F.R. § 90.715.

[^160]: ^?^ *See* Section 90.723(d) of the Commission\'s Rules, 47
    C.F.R. § 90.723(d). The Commission also provided a Table in Section
    90.723(d) that indicates appropriate geographic separations for base
    stations operating at power levels below 500 watts ERP.

[^161]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11015 (para.
    153); 47 C.F.R. § 90.723(d). *See also* Section 90.723(e) of the
    Commission\'s Rules, 47 C.F.R. § 90.723(e).

[^162]: ^?^ *See* Section 90.723(f) of the Commission\'s Rules, 47
    C.F.R. § 90.723(f).

[^163]:  ^?^ The Table in Section 90.723(d) provides the geographic
    separations for base station receive sites operating on Sub-band A
    channels and base station transmitter sites operating on Sub-band B
    channels. The 500 watt ERP power limit and 150 meter HAAT limit for
    stations transmitting in the 220-221 MHz band form the basis for the
    geographic separations provided in the Table. As discussed in paras.
    -, *supra*, the Commission will restrict licensees operating fixed
    stations on 221-222 MHz channels to an antenna height of 7 meters
    HAAT. So, if we were to develop a table to protect base station
    receive sites in the 221-222 MHz band from fixed stations operating
    in that band, then, because of the lower antenna height restriction
    for fixed stations operating in the 221-222 MHz band, such a table
    would provide for lesser geographic protection of base station
    receive sites than provided in the Table in Section 90.723(d).

[^164]: ^?^ An "affected" licensee would be a licensee operating on
    channels up to 200 kHz removed from the channels of the 500 watt ERP
    fixed station operating in the 221-222 MHz band.

[^165]: ^?^ Under such a scenario, once a 500 watt ERP fixed station was
    constructed on a 221-222 MHz channel, all Phase II licensees
    operating on channels up to 200 kHz removed from that channel would
    risk interference if they situated their base stations too close to
    the location of the fixed station.

[^166]: ^?^ As discussed in note **Error! Bookmark not defined.**,
    *supra*, the geographic separations in the Table in Section
    90.723(d) are based on the 150 meter HAAT limit for antennas
    transmitting in the 220-221 MHz band, but because we restrict the
    antenna height of stations in the 221-222 MHz band to 7 meters HAAT
    (*see* paras. -, *supra*), a licensee operating a 500 watt ERP fixed
    station in the 221-222 MHz band would not have to provide as great a
    degree of geographic protection to base station receive sites as
    required by the Table. In the absence of a table that provides the
    geographic separations required to protect 220 MHz base station
    receive sites from fixed stations operating at an antenna height of
    7 meters, however, we will require a licensee seeking the consent of
    Phase II non-nationwide licensees to operate at a power level of 500
    watts ERP to obtain the consent of all such licensees that are
    authorized in an EA or Region that is located within 6 km of the
    licensee\'s proposed fixed station.

[^167]: ^?^ In paras. -, *infra*, we provide procedures under which
    Phase I non-nationwide licensees may modify their authorizations to
    add additional transmitters within their existing service area or
    change the operating parameters or location of their base station.
    We conclude that a licensee seeking the consent of a Phase I
    non-nationwide licensee to operate at 500 watts ERP will not be
    required to obtain the consent of that licensee with regard to any
    additional transmitters for which the licensee obtains
    authorization. The licensee will only be required to obtain the
    consent with regard to the licensee\'s base station, as authorized
    at the time the licensee seeks the consent. Also, as indicated in
    note 166, *supra*, in the absence of a table that provides the
    geographic separations required to protect 220 MHz base station
    receive sites from fixed stations operating at an antenna height of
    7 meters, we will require a licensee seeking the consent of Phase I
    non-nationwide licensees to operate at a power level of 500 watts
    ERP to obtain the consent of all such licensees with a base station
    that is located within 6 km of the licensee\'s proposed fixed
    station.

[^168]: ^?^ We note that the Commission currently provides spectrum for
    two-way paging in the narrowband Personal Communications Service.
    There, the channels in the 901-902 MHz band are specifically
    identified as paging "response" channels. These channels may also be
    used by paging licensees authorized in Part 22 and Part 90 to create
    two-way paging systems. Significantly, the power limit for stations
    operating on the 901-902 MHz channels is only 7 watts ERP (much
    lower than the 50 watt ERP limit for stations operating in the
    221-222 MHz band).

[^169]: ^?^ Glenayre Third Order Petition at 3-5; Comtech Third Order
    Petition at 4-6.

[^170]: ^?^ Glenayre Third Order Petition at 3.

[^171]: ^?^ *Id.*

[^172]: ^?^ Comtech Third Order Petition at 5. *See* Section 22.535 of
    the Commission\'s Rules, 47 C.F.R. § 22.535.

[^173]: ^?^ Comtech Third Order Petition at 5-6.

[^174]: ^?^ *Id*. at 5; Glenayre Third Order Petition at 5-6.

[^175]: ^?^ Arch Third Order Comments at 4; PCIA Third Order Reply at 4.
    In its reply comments, Arch clarifies that, while it opposes
    increasing ERP for mobile transmitters, it supports increasing ERP
    for paging base stations. Arch Third Order Reply at 5.

[^176]: ^?^ Metricom Third Order Comments at 7.

[^177]: ^?^ *See* Section 90.729 of the Commission\'s Rules, 47 C.F.R. §
    90.729.

[^178]: ^?^ AMTA Third Order Petition at 9-10; SEA Third Order Comments
    at 14; SMR Third Order Petition at 9; SMR Third Order Reply at 8;
    USMC Third Order Reply at 3. As explained in para. , *supra*, the
    *220 MHz Second Report and Order* provided a one-time mechanism for
    Phase I licensees to modify their authorizations.

[^179]: ^?^ *See* *220 MHz Third Report and Order*, 12 FCC Rcd at 11026
    (para. 174); AMTA Third Order Petition at 9-10; INTEK Third Order
    Petition at 5; PCIA Third Order Petition at 4-5; SEA Third Order
    Comments at 13.

[^180]: ^?^ SBT Third Order Reply at 3-4.

[^181]: ^?^ AMTA Third Order Petition at 9; PERS Third Order Comment at
    5 (unpaginated); SMR Third Order Reply at 8; *see also* USMC Third
    Order Reply at 3.

[^182]: ^?^ AMTA Third Order Petition at 8-10; INTEK Third Order
    Petition at 5-7; PERS Third Order Comment at 5 (unpaginated); PCIA
    Third Order Petition at 4-5; SBT Third Order Reply at 3-4; SEA Third
    Order Comments at 14-15; SMR Third Order Petition at 9-11; SMR Third
    Order Comments at 3; SMR Third Order Reply at 8; USMC Third Order
    Comments at 2-3.

[^183]: ^?^ AMTA Third Order Petition at 9-10; INTEK Third Order
    Petition at 5; PERS Third Order Comment at 5 (unpaginated); PCIA
    Third Order Petition at 4-5; SEA Third Order Comments at 15; SMR
    Third Order Petition at 9-11; SMR Third Order Comments at 3; SMR
    Third Order Reply at 8-9. Petitioners contend that the Phase I
    licensees\' service contours should be variously defined, *e.g*., by
    their 28 dBu contour (AMTA Third Order Petition at 10; INTEK Third
    Order Petition at 5-6), their original 38 dBu contour (SEA Third
    Order Comments at 15), and at maximum facilities (PCIA Third Order
    Petition at 4-5; SMR Third Order Comments at 3; SMR Third Order
    Reply at 8-9).

[^184]: ^?^ AMTA Third Order Petition at 8-10; INTEK Third Order
    Petition at 6-7; SEA Third Order Comments at 14-15; SMR Third Order
    Comments at 3; SMR Third Order Reply at 8.

[^185]: ^?^ SMR Third Order Petition at 10-11.

[^186]: ^?^ AMTA Third Order Petition at 9-10.

[^187]: ^?^ For example, deconstruction of a tower site, refusal of a
    site lessor to extend a lease, or introduction of incurable
    interference at a site.

[^188]: ^?^ A licensee\'s 38 dBu service contour shall be calculated in
    accordance with the provisions contained in paras. -, *supra*.

[^189]: ^?^ *See* paras. -, *infra*.

[^190]: ^?^ *See* Section 90.723(e) of the Commission\'s Rules, 47
    C.F.R. § 90.723(e).

[^191]: ^?^ *See* Section 90.723(f) of the Commission\'s Rules, 47
    C.F.R. § 90.723(f).

[^192]: ^?^ *See* para. , *supra*.

[^193]: ^?^ *See* para. , *supra*.

[^194]: ^?^ 47 U.S.C. § 309(j)(6)(D).

[^195]: ^?^ SMR Third Order Petition at 9-10.

[^196]: ^?^ *Id.*

[^197]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11016-19
    (paras. 156, 158-159), 11082-83 (paras. 328-331), 11086-87 (para.
    341).

[^198]: ^?^ *Id*. at 11020-21 (para. 163).

[^199]: ^?^ *Id.* at 11017-18, 11020-21 (paras. 158, 163).

[^200]: ^?^ The term "substantial service" is defined in Section
    90.743(a) and Section 22.940(a)(1)(i) of the Commission\'s Rules, 47
    C.F.R. §§ 90.743(a), 22.940(a)(1)(i). *See also* *220 MHz Third
    Report and Order*, 12 FCC Rcd at 11044 (para. 215) ("We continue to
    believe it is appropriate for all Phase I and Phase II 220 MHz
    Service licensees seeking renewal of their authorization to meet the
    requirements for license renewal similar to those provided in
    Section 22.940 of our rules.").

[^201]: ^?^ Metricom Third Order Comments at 5.

[^202]: ^?^ *Id*. at 5-6.

[^203]: ^?^ Comtech Third Order Reply at 10.

[^204]: ^?^ *See* Section 22.940(a)(1)(i) of the Commission\'s Rules, 47
    C.F.R. § 22.940(a)(1)(i).

[^205]: ^?^ *See* Section 24.16(a) of the Commission\'s Rules, 47 C.F.R.
    § 24.16(a).

[^206]: ^?^ *See* Section 26.14(a) of the Commission\'s Rules, 47 C.F.R.
    § 26.14(a).

[^207]: ^?^ *See* Section 27.14(b)(1) of the Commission\'s Rules, 47
    C.F.R. § 27.14(b)(1).

[^208]: ^?^ *See* Section 101.1011(a) of the Commission\'s Rules, 47
    C.F.R. § 101.1011(a).

[^209]: ^?^ *See* Sections 90.665(c) and 90.816(b)(1)(i) of the
    Commission\'s Rules, 47 C.F.R. §§ 90.665(c), 90.816(b)(1)(i).

[^210]: ^?^ *See* Sections 90.725(h), 90.743(a)(1), 90.767(b), and
    90.769(b) of the Commission\'s Rules, 47 C.F.R. §§ 90.725(h),
    90.743(a)(1), 90.767(b), 90.769(b).

[^211]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 11016 (para.
    156).

[^212]: ^?^ *See* Amendment of Part 90 of the Commission\'s Rules To
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, PR Docket No. 93-144, RM-8117, RM-8030, RM-8029,
    Implementation of Sections 3(n) and 332 of the Communications Act --
    Regulatory Treatment of Mobile Services, GN Docket No. 93-252,
    Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, Second Report and Order,
    12 FCC Rcd 19079, 19094-95 (para. 34) (1997) (*800 MHz SMR Order*).

[^213]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 10998-99
    (para. 116).

[^214]: ^?^ *Id.* at 10999 (para. 117).

[^215]: ^?^ *Id.* at 10999 (para. 118). Upon specific request, the
    Equipment Authorization Division would advise applicants who desired
    to develop equipment for this band as to the acceptability of their
    technical analysis. *Id.* at 10999 (para. 118 n.212).

[^216]: ^?^ *Id.* at 10999 (para. 118).

[^217]: ^?^ *Id.* at 10998 (para. 113).

[^218]: ^?^ *Id.* at 10998 (para. 114).

[^219]: ^?^ *Id.* at 10998 (para. 115).

[^220]: ^?^ *Id.* at 10999 (para. 119).

[^221]: ^?^ *Id.*

[^222]: ^?^ *Id.* at 10999-11000 (para. 119).

[^223]: ^?^ Comtech Third Order Petition at 8. Comtech notes that the
    Commission exempted paging from the Refarming efficiency standard.
    *See* Replacement of Part 90 by Part 88 To Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them and
    Examination of Exclusivity and Frequency Assignment Policies of the
    Private Land Mobile Radio Services, PR Docket No. 92-235, Amendment
    of the Commission;s Rules Concerning Maritime Communications, PR
    Docket No. 92-257, Memorandum Opinion and Order, 11 FCC Rcd 17676,
    17689 (para. 26) (1996) (*Refarming Reconsideration Order*)
    (amending Section 90.203(j)(7) of the Commission\'s Rules, 47 C.F.R.
    § 90.203(j)(7), to state that paging channels are exempted from the
    newly-adopted narrowband requirements).

[^224]: ^?^ Comtech Third Order Petition at 6-7. Comtech states that
    one-way paging channels are generally 25 kHz wide and transmit at a
    maximum data rate of 6,400 bits per second, or .256 bits per second
    per hertz, a rate well below the efficiency standard\'s 4,800 bit
    per second per 5 kHz, or .96 bits per second per hertz. *Id.*

[^225]: ^?^ Arch Third Order Comments at 2; PCIA Third Order Reply at 3.

[^226]: ^?^ Comtech Third Order Reply at 7.

[^227]: ^?^ Arch Third Order Reply at 4.

[^228]: ^?^ Glenayre Third Order Petition at 5.

[^229]: ^?^ *Id.* at 5-6.

[^230]: ^?^ *Id.* at 6.

[^231]: ^?^ *Id.*

[^232]: ^?^ *Id.*

[^233]: ^?^ PERS Third Order Comments at 2 (unpaginated).

[^234]: ^?^ Metricom Third Order Comments at 8.

[^235]: ^?^ *Id.*

[^236]: ^?^ Arch Third Order Comments at 3.

[^237]: ^?^ Glenayre Third Order Petition at 6-7. *See* Replacement of
    Part 90 by Part 88 to Revise the Private Land Mobile Radio Services
    and Modify the Policies Governing Them, PR Docket No. 92-235, Report
    and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd
    10076, 10122 (para. 97) (1995) (*Refarming Report and Order*).

[^238]: ^?^ Glenayre Third Order Petition at 7.

[^239]: ^?^ Rush Third Order Petition at 3-4.

[^240]: ^?^ *Id.*

[^241]: ^?^ INTEK Third Order Comments at 2.

[^242]: ^?^ *Id.* at 2-3.

[^243]: ^?^ *Id.*

[^244]: ^?^ *Id.* at 4.

[^245]: ^?^ *Id.* at 4-5; SEA Third Order Comments at 10-11.

[^246]: ^?^ INTEK Third Order Comments at 4-5.

[^247]: ^?^ *Id.* Prior to the *220 MHz Third Report and Order*, 220 MHz
    licensees were permitted to operate paging systems only on an
    ancillary basis to their land mobile operations. *220 MHz Third
    Report and Order*, 12 FCC Rcd at 10951 (para. 7).

[^248]: ^?^ SEA Third Order Comments at 10-11. INTEK, while observing
    that it "does not believe . . . that any blanket statement regarding
    the plans of manufacturers to introduce paging equipment in the 220
    MHz band that meets the spectrum efficiency standard can be made by
    any party . . . with any degree of certainty," also "notes that . .
    . at least one paging technology exists today (Inflexion) that, if
    adapted for use in the 220 MHz band, would appear to meet the data
    efficiency standard." INTEK Third Order Comments at 5.

[^249]: ^?^ SEA Third Order Comments at 11.

[^250]: ^?^ Comtech Third Order Petition at 8 n.13. We note that
    Comtech\'s claim that only one-way paging is permitted for the 220
    MHz service misconstrues the Commission\'s rules. *See* para. ,
    *supra*. We also note that Comtech claims that two-way units are not
    being developed with a return channel below 800 MHz, because their
    large size would render them commercially unacceptable. *Id.* at 9.

[^251]: ^?^ *Id.* at 8.

[^252]: ^?^ Comtech Third Order Reply at 5. Comtech adds that, without a
    modem, INTEK\'s data equipment efficiency drops to 1.2 kbps. *Id*.

[^253]: ^?^ *See* paras. -, *infra*.

[^254]: ^?^ *220 MHz Third Report and Order*, 12 FCC Rcd at 10998 (para.
    115).

[^255]: ^?^ Metricom Third Order Comments at 2-3.

[^256]: ^?^ *Id.* at 3.

[^257]: ^?^ *See* para. , *supra*.

[^258]: ^?^ Metricom Third Order Comments at 8 (emphasis added). *See*
    para. , *supra*. We also note that, in earlier stages of this
    proceeding, Metricom opposed the spectrum efficiency standard and
    supported our permitting paging to be offered on a primary basis in
    the 220 MHz band. *See* *220 MHz Third Report and Order*, 12 FCC Rcd
    at 10989-90 (paras. 93-94), 10997-98 (para. 112 n.210, and
    accompanying text).

[^259]: ^?^ *See* para. , *supra*.

[^260]: ^?^ *See* para. , *infra*.

[^261]: ^?^ *See 220 MHz Third Report and Order*, 12 FCC Rcd at 10998
    (para. 113).

[^262]: ^?^ *220 MHz Report and Order*, 6 FCC Rcd at 2364-65 (paras. 59,
    62). *See* para. , *supra*.

[^263]: ^?^ In taking this step, the Commission observed:

    In adopting this \[spectrum efficiency\] requirement, we note that
    we do not disagree with commenters that suggest that licensees
    acquiring 220 MHz spectrum through competitive bidding will likely
    have the incentive to use their spectrum efficiently. We believe,
    however, that our adoption of a mandatory spectrum efficiency
    standard at this time is an appropriate and effective means of
    ensuring that licensees aggregating contiguous channels will operate
    in an efficient manner.

    *220 MHz Third Report and Order*, 12 FCC Rcd at 10998 (para. 114).
    *See* para. , *supra.*.

[^264]: ^?^ Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, Second Report and Order, PP Docket No.
    93‑253, Second Report and Order, 9 FCC Rcd 2348, 2358 (para. 58),
    *recon*., Second Memorandum Opinion and Order, 9 FCC Rcd 7245
    (1994).

[^265]: Allocation of Spectrum Below 5 GHz Transferred from Federal
    Government Use, ET Docket No. 94-32, Second Report and Order,
    11 FCC Rcd 624, 634-44 (para. 46) (1995).

[^266]: We note that there are currently 1,515 non-nationwide licenses
    to provide 220 MHz service. A total of 1,190 of those licenses are
    held by licensees who have met all construction requirements
    pursuant to the Commission\'s Rules. As we discuss elsewhere, we
    also believe there is a sound basis for concluding that future
    growth in the market for 5 kHz equipment in the 220 MHz band will
    not be compromised by our decision to eliminate the spectrum
    efficiency standard. *See* para. , *infra*.

[^267]: Intek Global Web Site,
    http://www.intekglobal.com/newspr.htm#press2, Apr. 8, 1998. Internal
    subscribership growth increased 109 percent in the quarter ending
    March 31, 1998, with an acquisition accounting for further
    subscriber growth. *Id*.

[^268]: Amendment of Part 90 of the Commission\'s Rules To Provide for
    the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Fourth Report and Order, 12 FCC Rcd
    13453 (1997) (*Forty-Mile Rule Order*).

[^269]: *Forty-Mile Rule Order*, 12 FCC Rcd at 13459 (para. 13).

[^270]: *Id.* at 13459 (para. 14). The *Forty-Mile Rule Order* applied
    to Phase I licensees in the 220 MHz service. With respect to Phase
    II licenses, the Commission, in the *220 MHz Third Report and
    Order*, did not limit the number of licenses that may be acquired by
    one entity, and the Commission also allowed licensees to place
    stations anywhere within their geographically licensed areas. *220
    MHz Third Report and Order*, 12 FCC Rcd at 10969, 10982-83 (paras.
    53, 80).

[^271]: The chairman of the 220 MHz Council, American Mobile
    Telecommunications Association (AMTA), in commenting on the
    *Forty-Mile Rule Order*, stated that the 5 kHz channels in the band
    are not conducive to cellular-like offerings. "\`We\'re doing
    advanced technologies already, but our bread and butter is
    plain-vanilla dispatch. We\'re going to continue to be the low-cost
    alternative.\'" C. Carlson, "Band May Consolidate," Wireless Week,
    Sept. 1, 1997, at 104 (quoting James Evans). Another industry
    official stated that "\`\[t\]his \[the *Forty-Mile Rule Order*\]
    removes the last shred of uncertainty in the band, especially for
    companies seeking capital beyond their own resources to expand.\'"
    *Id*. (quoting Alan Shark, President, AMTA).

[^272]: ^?^ A 220 MHz equipment manufacturer representative has observed
    that the 220 MHz auction will be "the first auction in which small
    businesses really could participate." *See* D. Wayne, "Unresolved
    220 MHz Auction Issues May Delay New Round," Radio Communications
    Report, Mar. 16, 1998, at 9, 10 (quoting Michael Bayly, land mobile
    marketing director form Midland SMR). Mr. Bayly also expressed
    concern that the auction rules for the service could hamper
    participation by small businesses.

[^273]: *See, e.g.,* *800 MHz SMR Order*; Amendment of the Commission\'s
    Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket
    No. 95-183, RM-8553, Implementation of Sections 3(n) and 332 of the
    Communications Act -- Regulatory Treatment of Mobile Services, GN
    Docket No. 93-252, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, 37.0-38.6 GHz and
    38.6-40.0 GHz, PP Docket No. 93-253, Report and Order and Second
    Notice of Proposed Rulemaking, 12 FCC Rcd 18600 (1997); Amendment of
    Parts 2 and 90 of the Commission\'s Rules To Provide for the Use of
    200 Channels Outside the Designated Filing Areas in the 896-901 MHz
    and the 935-940 MHz Bands Allotted to the Specialized Mobile Radio
    Pool, PR Docket No. 89-553, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    Implementation of Sections 3(n) and 332 of the Communications Act --
    Regulatory Treatment of Mobile Services, GN Docket No. 93-252,
    Second Order on Reconsideration and Seventh Report and Order, 11 FCC
    Rcd 2639 (1995).

[^274]: The filing of a petition regarding any decision contained in a
    Commission Order tolls the running of the 30-day period during which
    the Commission may *sua sponte* reconsider its earlier disposition
    of any issue decided in that Order. As a result, the Commission
    generally retains the authority to reconsider additional issues when
    it addresses a specific issue raised on reconsideration. *See*
    Central Florida Enterprises v. FCC, 598 F.2d 37, 48 n.51 (D.C.Cir.,
    1978), *cert. dismissed*, 441 U.S. 957 (1979).

[^275]: "The flexibility available under this rule appears to be
    unappreciated by those wanting to abolish the efficiency standard
    for paging." SEA Third Order Comments at 11.

[^276]: 47 C.F.R. § 90.203(k)(2).

[^277]: Comtech, Request for Waiver of Rules Pertaining to 220 MHz
    Specialized Mobile Radio Systems, filed June 18, 1997.

[^278]: *Id*. at 3.

[^279]: *See 220 MHz Third Report and Order*, 12 FCC Rcd at 10999 (para.
    118 n.212).

[^280]: *See* paras. -, *supra*.

[^281]: We note that our decision also renders moot the question of
    whether waiver requests regarding the standards should be subject to
    public comment, as INTEK requests. *See* INTEK Third Order Petition
    at 8-9. We therefore do not examine the arguments that have been
    advanced for and against such a policy.

[^282]: Glenayre Third Order Petition at 6. *See* paras. -, *supra*.

[^283]: *Id.* at 6-7; Rush Third Order Petition at 3-4. *See* para. ,
    *supra*.

[^284]: *See* INTEK Third Order Comments at 5-6; SEA Third Order
    Comments at 8-9.

[^285]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11017-19 (paras.
    158-159).

[^286]: Comtech Third Order Petition at 12; Global Third Order Petition
    at 9.

[^287]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11017-19 (paras.
    158-159).

[^288]: *Id.* at 11125 (Appendix B); 47 C.F.R. § 90.757.

[^289]: *Third Notice*, 11 FCC Rcd at 206 (para. 30).

[^290]: *Id.*

[^291]: *220 MHz Third Report and Order*, 12 FCC Rcd at 10949, 11038
    (paras. 6, 197).

[^292]: *Id.* at 11090 (para. 354).

[^293]: National Third Order Petition at 1-5.

[^294]: *See 220 MHz Third Report and Order*, 12 FCC Rcd 11031-41
    (paras. 183-206).

[^295]: *See* Public Notice, Commercial Wireless Division Dismisses
    Remaining Applications for Nationwide Commercial 220-222 MHz Private
    Land Mobile Licenses, DA 98-641 (Apr. 3, 1998).

[^296]: *220 MHz Third Report and Order*, 12 FCC Rcd at 10969 (para.
    53).

[^297]: Comtech Third Order Petition at 3-4.

[^298]: 47 C.F.R. § 90.739.

[^299]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11071 (para.
    298). *See also* Section 90.1017(a) of the Commission\'s Rules, 47
    C.F.R. § 90.1017(a).

[^300]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11072 (para.
    301). *See also* Section 90.1017(d) of the Commission\'s Rules, 47
    C.F.R. § 90.1017(d).

[^301]: Amendment of Part 1 of the Commission\'s Rules -- Competitive
    Bidding Procedures, WT Docket No. 97-82, Allocation of Spectrum
    Below 5 GHz Transferred from Federal Government Use, 4660-4685 MHz,
    ET Docket No. 94-32, Third Report and Order and Second Further
    Notice of Proposed Rulemaking, 13 FCC Rcd 374, 398-400 (para. 40)
    (1997) (*Part 1 Third Report and Order*).

[^302]: *Id.* at 400 (para. 40).

[^303]: *Id.* at 401 (para. 43).

[^304]: 47 C.F.R. § 90.1015.

[^305]: *See Part 1 Third Report and Order*, 13 FCC Rcd at 428-30
    (paras. 93-96) (amending Section 1.2109(a) of the Commission\'s
    Rules, 47 C.F.R. 1.2109(a)).

[^306]: *See* Section 90.1001 of the Commission\'s Rules, 47 C.F.R. §
    90.1001.

[^307]: *See* Section 1.2112 of the Commission\'s Rules, 47 C.F.R. §
    1.2112.

[^308]: Rush Third Order Petition at 4-5; Metricom Third Order Petition
    at 3-6; Global Third Order Petition at 5-9; Comtech Third Order
    Petition at 13-14.

[^309]: 47 C.F.R. § 1.401.

[^310]: Comtech Third Order Petition at 11; Global Third Order Petition
    at 3-5; Rush Third Order Petition at 2-3.

[^311]: Comtech filed a Petition for Declaratory Ruling regarding this
    issue with the Wireless Telecommunications Bureau on October 31,
    1995. On January 19, 1996, the Commission issued a Public Notice
    inviting comment and establishing a pleading cycle. *See* Public
    Notice, Commission Seeks Comment on Comtech Petition for Declaratory
    Ruling That Licensees of a Nationwide 220 MHz Mobile Communications
    System are Not Required to License Separately Each of the Systems\'
    Base Stations, DA 96-38 (Jan. 19, 1996).

[^312]: *220 MHz Second Report and Order*, 11 FCC Rcd at 3670 (para. 9).

[^313]: *Id.*

[^314]: AMTA Second Order Petition at 5; Incom Second Order Petition at
    15; SMR Second Order Petition at 9.

[^315]: AMTA Second Order Petition at 6; SMR Second Order Petition at 9.

[^316]: Incom Second Order Petition at 15.

[^317]: SMR Second Order Petition at 9.

[^318]: AMTA Second Order Petition at 5-6; Incom Second Order Petition
    at 15.

[^319]: SMR Second Order Petition at 9.

[^320]: Incom Second Order Petition at 16.

[^321]: *220 MHz Second Report and Order,* 11 FCC Rcd at 3670 (para. 9).

[^322]: *Id.*

[^323]: *Id.*

[^324]: *Id.* at 3671 (para. 10).

[^325]: *Id.* at 3670-71 (paras. 8-9).

[^326]: *Id.*

[^327]: *See* AMTA Second Order Petition at 6; SMR Second Order Petition
    at 4; USMC Comments at 3.

[^328]: AMTA Second Order Petition at 6-7; SMR Second Order Petition at
    6.

[^329]: USMC Second Order Comments at 3.

[^330]: *Id.*

[^331]: *Id.*

[^332]: SMR Second Order Petition at 3-4.

[^333]: *See* AMTA Second Order Petition at 6-7.

[^334]: USMC Second Order Comments at 3.

[^335]: AMTA Second Order Petition at 7; SMR Second Order Petition at 6,
    citing *Third Notice*, 11 FCC Rcd at 237 (para. 99).

[^336]: AMTA Second Order Petition at 7. *See also* SMR Second Order
    Petition at 6.

[^337]: SMR Second Order Petition at 4. *See also* AMTA Second Order
    Petition at 6-7.

[^338]: SMR Second Order Petition at 5.

[^339]: *Id.*

[^340]: *Id.* at 5-6.

[^341]: *220 MHz Second Report and Order*, 11 FCC Rcd at 3669 (para. 4).

[^342]: *See* para. , *infra*.

[^343]: *See 220 MHz Second Report and Order*, 11 FCC Rcd at 3669 (para.
    4).

[^344]: *See* paras. -, *supra*.

[^345]: We note that if a licensee who did not seek to relocate believed
    it was impossible to remain at the same antenna height above average
    terrain at the original location there is nothing in the *220 MHz
    Second Report and Order* that would prevent such a licensee from
    applying for a waiver of the Commission\'s rules.

[^346]: 47 C.F.R. § 90.729.

[^347]: AMTA Second Order Petition at 7; SMR Second Order Petition at 6.

[^348]: AMTA Second Order Petition at 7 n.4.

[^349]: *Id.* at 7; SMR Second Order Petition at 6.

[^350]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11026 (para.
    174).

[^351]: *See* paras. -, *supra*.

[^352]: *220 MHz Second Report and Order*, 11 FCC Rcd at 3673 (para.
    15).

[^353]: *Id*.

[^354]: *Id.* at 3673 (paras. 15-16).

[^355]: *Id.*

[^356]: AMTA Second Order Petition at 8; Incom Second Order Petition at
    6, 9-10; PERS Second Order Petition at 6-7; SMR Second Order
    Petition at 8.

[^357]: Incom Second Order Petition at 7.

[^358]: *See* AMTA Second Order Petition at 8; Incom Second Order
    Petition at 7; PERS Second Order Petition at 2-3; SMR Second Order
    Petition at 7.

[^359]: *See* AMTA Second Order Petition at 8; Incom Second Order
    Petition at 8; PERS Second Order Petition at 3-4; SMR Second Order
    Petition at 8.

[^360]: PERS Second Order Petition at 4.

[^361]: *See* AMTA Second Order Petition at 8; Incom Second Order
    Petition at 8; PERS Second Order Petition at 4; SMR Second Order
    Petition at 8.

[^362]: *See* Incom Second Order Petition at 9-10. Incom cites the 900
    MHz service, in which the Commission granted primary site status to
    all pending 900 MHz applications filed as of August 9, 1994, rather
    than restricting such relief to those applications granted as of
    that date. Incom also references the Commission\'s moratorium on the
    acceptance for filing of 929 MHz and 930 MHz applications, based on
    the filing date. *See also* PERS Second Order Petition at 4 n.6.
    PERS cites (1) the setting of a filing cut-off for 220 MHz
    applications as of the date filed; (2) the freezing of acceptance of
    applications in the 800 MHz specialized mobile radio services as of
    August 9, 1994; (3) granting 900 MHz licensees primary status for
    their secondary sites as of the date the applications were filed
    rather that the date granted; (4) the *Part 22 Rewrite Order*, in
    which the Commission provided for the reconsideration of dismissed
    applications in light of new application procedures taking effect
    while petitions for reconsideration or applications for review are
    still pending. *See* Revision of Part 22 of the Commission\'s Rules
    Governing the Public Mobile Services, CC Docket No. 92-115, Report
    and Order, 9 FCC Rcd 6513 (1994) (*Part 22 Rewrite Order*).

[^363]: Incom Second Order Petition at 9.

[^364]: *Id.*

[^365]: PERS Second Order Petition at 5.

[^366]: *Id.*

[^367]: *220 MHz Second Report and Order*, 11 FCC Rcd at 3672-73 (paras.
    13, 15).

[^368]: *Id.* at 3673 (para. 15) (emphasis added).

[^369]: *Id.* at 3673 (para. 16).

[^370]: STAs are always available to meet a licensee\'s needs in
    emergency situations.

[^371]: *See* AMTA Second Order Petition at 8; Incom Second Order
    Petition at 8; PERS Second Order Petition at 4; SMR Second Order
    Petition at 8.

[^372]: Opposition of the FCC to Petitioner\'s Emergency Motion for
    Stay, Case No. 96-1133, Motion filed Apr. 24, 1996, Opposition filed
    Apr. 29, 1996, at 18.

[^373]: *See* Incom Second Order Petition at 9-10. *See also* PERS
    Second Order Petition at 4 n.6.

[^374]: Incom Second Order Petition at 10 n.3.

[^375]: *Id.* at 10.

[^376]: *See* Section 90.169(c) of the Commission\'s Rules, 47 C.F.R. §
    90.169(c).

[^377]: *See* Section 90.145 of the Commission\'s Rules, 47 C.F.R. §
    90.145.

[^378]: 47 C.F.R. §§ 90.753(a), 90.753(b).

[^379]: *220 MHz Second Report and Order,* 11 FCC Rcd at 3671 (para.
    11).

[^380]: *Id.*

[^381]: AMTA Second Order Petition at 9; Incom Second Order Petition at
    11-12.

[^382]: AMTA Second Order Petition at 9; Incom Second Order Petition at
    13.

[^383]: Incom Second Order Petition at 14.

[^384]: AMTA Second Order Petition at 9-10; Incom Second Order Petition
    at 12-15.

[^385]: AMTA Second Order Petition at 9-10; Incom Second Order Petition
    at 13.

[^386]: AMTA Second Order Petition at 9 n.5; Incom Second Order Petition
    at 12.

[^387]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66,
    Title VI, § 6002(d)(3)(B), 107 Stat. 312, 397 (1993) (Budget Act).

[^388]: Incom Second Order Petition at 12 n.5.

[^389]: 47 C.F.R. § 1.958.

[^390]: *220 MHz Second Report and Order,* 11 FCC Rcd at 3671 (para.
    11).

[^391]: AMTA Second Order Petition at 9 n.5; Incom Second Order Petition
    at 12.

[^392]: 47 C.F.R. § 22.119.

[^393]: Section 1.958 of the Commission\'s Rules, 47 C.F.R. § 1.958.

[^394]: Wait Radio v. FCC, 418 F.2d 1153, 1158 (D.C. Cir. 1969).

[^395]: *220 MHz Second Report and Order*, 11 FCC Rcd at 3668 (para. 2).

[^396]: *Id.* at 3674 (para. 23).

[^397]: *See* para. , *supra*.

[^398]: *220 MHz Second Report and Order,* 11 FCC Rcd at 3671 (para.
    11).

[^399]: *Id.*

[^400]: *Id.*

[^401]: *Id.*

[^402]: In Touch Second Order Petition at 2.

[^403]: *Id.*

[^404]: *Id.*

[^405]: *Id.*

[^406]: *Id.* at 2-3.

[^407]: *See* Section 90.151 of the Commission\'s Rules, 47 C.F.R. §
    90.151.

[^408]: 5 U.S.C. § 604.

[^409]: *See* 5 U.S.C. § 603.

[^410]: *220 MHz Second Report and Order*, 11 FCC Rcd 3668. Certain
    abbreviated references used in the Memorandum Opinion and Order on
    Reconsideration are also used in this Appendix.

[^411]: *220 MHz Third Report and Order*, 12 FCC Rcd 10943.

[^412]: Pub. L. No. 104-121, 110 Stat. 846 (1996), codified at 5 U.S.C.
    §§ 601-612. Title II of the CWAAA is The Small Business Regulatory
    En­force­ment Fairness Act of 1996 (SBREFA).

[^413]: The Commission, in the *Part 1 Third Report and Order*,
    temporarily suspended the use of installment payments and stated
    that it would address installment payment financing for licenses in
    the 220 MHz service in a manner consistent with this decision in the
    220 MHz reconsideration. *See Part 1 Third Report and Order*, 13 FCC
    Rcd at 384 (para. 7).

[^414]: SBT Third Order Reply at 3-4.

[^415]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11068-70 (paras.
    291-295).

[^416]: On January 6, 1998, the Commission received approval from SBA
    for its definitions of a small business and a very small business
    for Phase II licensees in the 220 MHz service. *See* Letter to D.
    Phythyon, FCC, from A. Alvarez, SBA, dated Jan. 6, 1998.

[^417]: *220 MHz Third Report and Order*, 12 FCC Rcd at 11068-69 (para.
    291).

[^418]: *Id*. at 11096, Appendix A.

[^419]: *Id*.

[^420]: In this Supplemental FRFA, we continue to use the same tentative
    definition of small entities applicable to 220 MHz Phase I licensees
    that we used in the regulatory flexibility analysis that accompanied
    the *220 MHz Third Report and Order*.

[^421]: 13 C.F.R. § 121.201, Standard Industrial Classification (SIC)
    Code 4812.

[^422]: U.S. Bureau of the Census, U.S. Department of Commerce, 1992
    Census of Transportation, Communica­tions, and Utilities, UC92-S-1,
    Subject Series, Establishment and Firm Size, Table 5, Employment
    Size of Firms; 1992, SIC Code 4812 (issued May 1995).

[^423]: 13 C.F.R. § 121.201, (SIC) Code 3663.

[^424]: U.S. Dept. of Commerce, 1992 Census of Transportation,
    Communications and Utilities (issued May 1995), SIC category 3663.

[^425]: *See* paras. - of the Memorandum Opinion and Order on
    Reconsideration, *supra*.

[^426]: *See* paras. - of the Memorandum Opinion and Order on
    Reconsideration, *supra*.

[^427]: *See* 5 U.S.C. § 801(a)(1)(A).

[^428]: *See* 5 U.S.C. § 604(b).