**DA 07-2197\
Released: May 24, 2007**

**COMMENT SOUGHT ON GOOGLE PROPOSALS REGARDING SERVICE RULES**

**FOR 700 MHz BAND SPECTRUM**

**WT Docket No. 06-150; WT Docket No. 06-169; PS Docket No. 06-229; WT
Docket No. 96-86**

**Comments Due: 7 days after publication in the Federal Register**

**Reply Comments Due: 14 days after publication in the Federal
Register**

On April 27, 2007, the Commission released a Report and Order and
Further Notice of Proposed Rulemaking which addresses rules governing
wireless licenses in the 698-806 MHz Band (herein, the "700 MHz
Band").[^1] This spectrum currently is occupied by television
broadcasters in TV channels 52-69 and is being made available for
wireless services, including public safety and commercial services, as a
result of the digital television ("DTV") transition. On May 21, 2007,
Google Inc. ("Google") filed an *ex parte* letter asking that the
Commission seek immediate comment on certain proposals regarding the
service rules for the 700 MHz Band spectrum that is to be auctioned.[^2]
By this Public Notice, the Wireless Telecommunications Bureau seeks
comment on those proposals as well as any other alternative approaches
for conditioning the licenses that will be auctioned.

First, Google requests that the Commission clarify that the Commission's
existing rules governing commercial spectrum in the 700 MHz Band already
allow licensees to utilize "dynamic auction mechanisms," such as
real-time auctions and per-device registration fees.[^3] In Google's
real-time airwaves auction model, a licensee could bestow the right to
transmit an amount of power for a unit of time, with the total amount of
power in any location being limited to a specified cap.[^4] According to
Google, as part of a real-time auction process, the communications
device itself could become key to the payment process. For example, a
consumer's price to purchase a device could include an airwaves
registration fee that would grant the ability to gain unlimited use at a
specified power level.[^5] We seek comment broadly on the extent to
which the Commission's existing rules permit 700 MHz licensees to employ
such "dynamic spectrum management techniques."[^6] To the extent they
are not currently permitted, we ask whether the Commission should modify
any of its rules to permit their use.

Second, Google requests that the Commission "posit at least whether it
would be in the public interest to mandate \[the use of such
techniques\] for some, or even all, of the commercial spectrum to be
auctioned in the 700 MHz bands."[^7] We seek comment on whether the
Commission should mandate such an approach, and if so, to what extent.

Lastly, Google proposes that the unpaired 6 megahertz E Block (722-728
MHz) in the current Lower 700 MHz band plan be designated, "primarily or
exclusively, for the deployment of broadband communications
platforms."[^8] Specifically, Google contends, this unpaired Block "only
should be: (1) utilized for interactive, two-way broadband services, (2)
connected to the public Internet, and (3) used to support innovative
software-based applications, services, and devices."[^9] We seek comment
on that proposal.

We also seek comment on the attached Initial Regulatory Flexibility
Analysis of Google's proposals (see Appendix).

This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission's rules, 47 C.F.R. §§ 0.131, 0.331.

Interested parties may file comments on or before **\[7 days after
publication in the Federal Register\]**, and reply comments on or before
**\[14 days after publication in the Federal Register\]**. This
abbreviated comment cycle is appropriate considering the Commission's
need to establish service rules for the 700 MHz band sufficiently in
advance of the auction, which must commence no later than January 28,
2008.[^10] Moreover, our decision to highlight the issues addressed in
Google's letter in this abbreviated comment cycle arises out of an
abundance of caution and to ensure that the Commission has as complete
and comprehensive a record as possible before ruling on these issues,
not because we consider the current procedural stance of this rulemaking
to require it.

Comments may be filed using the Commission\'s Electronic Comment Filing
System (ECFS) or by filing paper copies.[^11] Comments filed through the
ECFS can be sent as an electronic file via the Internet to
<http://www.fcc.gov/cgb/ecfs/>. Generally, only one copy of an
electronic submission must be filed. If multiple docket or rulemaking
numbers appear in the caption of the proceeding, commenters must
transmit one electronic copy of the comments to each docket or
rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
numbers. All filings concerning this Public Notice should refer to WT
Docket No. 06-150, WT Docket No. 06-169, PS Docket No. 06-229; and WT
Docket No. 96-86. Parties may also submit an electronic comment by
Internet e-mail. To get filing instructions for e-mail comments,
commenters should send an e-mail to <ecfs@fcc.gov>, and should include
the following words in the body of the message, "get form." A sample
form and directions will be sent in reply. Parties who choose to file by
paper must file an original and four copies of each filing. If more than
one docket or rulemaking number appears in the caption of this
proceeding, commenters must submit two additional copies for each
additional docket or rulemaking number.

Paper filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail). **Parties are strongly encouraged to file comments
electronically using the Commission's ECFS.**

The Commission\'s contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission\'s Secretary at 236
Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.

> -The filing hours at this location are 8:00 a.m. to 7:00 p.m.
>
> -All hand deliveries must be held together with rubber bands or
> fasteners.
>
> -Any envelopes must be disposed of before entering the building.
>
> -Commercial overnight mail (other than U.S. Postal Service Express
> Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
> Capitol Heights, MD 20743.
>
> -U.S. Postal Service first-class mail, Express Mail, and Priority Mail
> should be addressed to 445 12th Street, S.W., Washington, D.C. 20554.

All filings must be addressed to the Commission\'s Secretary, Marlene H.
Dortch, Office of the Secretary, Federal Communications Commission, 445
12^th^ Street, S.W., Washington, D.C. 20554. Parties should also send a
copy of their filings to John Branscome, Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau, Federal Communications
Commission, 445 12^th^ Street, S.W., Washington, D.C. 20554, or by
e-mail to John.Branscome@fcc.gov. Parties shall also serve one copy with
the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI),
Portals II, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 20554,
(202) 488-5300, or via e-mail to <fcc@bcpiweb.com>.

Documents in WT Docket No. 06-150, WT Docket No. 06-169, PS Docket No.
06-229, and WT Docket No. 96-86will be available for public inspection
and copying during business hours at the FCC Reference Information
Center, Portals II, 445 12^th^ St. S.W., Room CY-A257, Washington, DC
20554. The documents may also be purchased from BCPI, telephone (202)
488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail
<fcc@bcpiweb.com>.

To request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-mail
to <fcc504@fcc.gov> or call the Consumer & Governmental Affairs Bureau
at 202-418-0530 (voice), 202-418-0432 (tty).

This matter shall be treated as a "permit-but-disclose" proceeding in
accordance with the Commission\'s *ex parte* rules.[^12] Persons making
oral *ex parte* presentations are reminded that memoranda summarizing
the presentations must contain summaries of the substance of the
presentations and not merely a listing of the subjects discussed. More
than a one- or two-sentence description of the views and arguments
presented generally is required.[^13] Other requirements pertaining to
oral and written presentations are set forth in section 1.1206(b) of the
Commission\'s rules.[^14]

For further information, contact John Branscome of the Spectrum and
Competition Policy Division, at (202) 418-8205.

**- FCC-**

**APPENDIX**

## Initial Regulatory Flexibility Analysis {#initial-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (the "RFA"),[^15] the Commission has prepared this Initial
    Regulatory Flexibility Analysis ("IRFA") of the possible significant
    economic impact of the proposal described in the attached Public
    Notice on small entities.[^16] Written public comments are requested
    on this IRFA. Comments must be identified as responses to the IRFA
    and must be filed by the deadline for comments in the Public Notice.
    The Commission will send a copy of the Public Notice, including this
    IRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration ("SBA").[^17] In addition, the Public Notice and IRFA
    (or summaries thereof) will be published in the Federal
    Register.[^18]

2.  Although Section 213 of the Consolidated Appropriations Act of 2000
    provides that the RFA shall not apply to the rules and competitive
    bidding procedures for frequencies in the 746-806 MHz band,[^19] the
    Commission believes that it would serve the public interest to
    analyze the possible significant economic impact of proposed policy
    and rule changes in this band on small entities. Accordingly, this
    IRFA contains an analysis of this impact in connection with all
    spectrum that falls within the scope of this Public Notice,
    including spectrum in the 746-806 MHz band.

## Need for, and Objectives of, the Proposed Rules

3.  The Public Notice seeks comments broadly on a proposal recently
    submitted by Google and on any other alternative approaches for
    conditioning the licenses that will be auctioned in the 700 MHz
    Band. Google requests that the Commission clarify the service rules
    governing the 700 MHz Band and declare that the rules allow the use
    of "dynamic auction" mechanisms such as real-time auctions and
    per-device registration fees. Google also asks the Commission to
    consider whether it would be in the public interest to mandate such
    mechanisms for some, or even all, of the commercial spectrum to be
    auctioned in the 700 MHz Band. The Public Notice also seeks comment
    on Google's proposal that the unpaired 6 megahertz E Block (722-728
    MHz) in the current Lower 700 MHz band plan should be designated
    primarily or exclusively to be used for deployment of broadband
    communications platforms.

## Legal Basis

4.  The legal authority for the actions proposed in this Public Notice
    are contained in sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208,
    214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324,
    332, 333, 336, 337, 614, 615, and 710 of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 151, 152, 154(i), 155(c), 157, 160,
    201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314,
    316, 319, 324, 332, 333, 336, 337, 534, 535, and 610.

## Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

5.  The RFA directs agencies to provide a description of, and where
    feasible, an estimate of the number of small entities that may be
    affected by the proposed rules, if adopted.[^20] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^21] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^22] A "small business concern" is one
    which: (1) is independently owned and operated; (2) is not dominant
    in its field of operation; and (3) satisfies any additional criteria
    established by the Small Business Administration ("SBA").[^23]

6.  *[Small Businesses]{.underline}*. Nationwide, there are a total of
    approximately 22.4 million small businesses, according to SBA
    data.[^24]

7.  *[Small Organizations]{.underline}.* Nationwide, there are
    approximately 1.6 million small organizations.[^25]

8.  *[Governmental Entities]{.underline}.* The term "small governmental
    jurisdiction" is defined as "governments of cities, towns,
    townships, villages, school districts, or special districts, with a
    population of less than fifty thousand."[^26] As of 2002, there were
    approximately 87,525 governmental jurisdictions in the United
    States.[^27] This number includes 38,967 county governments,
    municipalities, and townships, of which 37,373 (approximately 95.9%)
    have populations of fewer than 50,000, and of which 1,594 have
    populations of 50,000 or more. Thus, we estimate the number of small
    governmental jurisdictions overall to be 85,931 or fewer.

9.  *[Wireless Service Providers]{.underline}*. The SBA has developed a
    small business size standard for wireless firms within the two broad
    economic census categories of \"Paging\"[^28] and \"Cellular and
    Other Wireless Telecommunications.\"[^29] Under both categories, the
    SBA deems a wireless business to be small if it has 1,500 or fewer
    employees. For the census category of Paging, Census Bureau data for
    2002 show that there were 807 firms in this category that operated
    for the entire year.[^30] Of this total, 804 firms had employment of
    999 or fewer employees, and three firms had employment of 1,000
    employees or more.[^31] Thus, under this category and associated
    small business size standard, the majority of firms can be
    considered small. For the census category of Cellular and Other
    Wireless Telecommunications, Census Bureau data for 2002 show that
    there were 1,397 firms in this category that operated for the entire
    year.[^32] Of this total, 1,378 firms had employment of 999 or fewer
    employees, and 19 firms had employment of 1,000 employees or
    more.[^33] Thus, under this second category and size standard, the
    majority of firms can, again, be considered small.

10. Under this Public Notice, any of the changes to the Commission's
    rules which may occur as a result of the Public Notice would be
    limited to the 698-806 MHz spectrum band. Since this proceeding
    applies to services in that band, this IRFA analyzes the number of
    small entities affected on a service-by-service basis. When
    identifying small entities that could be affected by the
    Commission's new rules, this IRFA provides information describing
    auctions results, including the number of small entities that were
    winning bidders. However, the number of winning bidders that qualify
    as small businesses at the close of an auction does not necessarily
    reflect the total number of small entities currently in a particular
    service. The Commission does not generally require that licensees
    later provide business size information, except in the context of an
    assignment or transfer of control application where unjust
    enrichment issues are implicated. Consequently, to assist the
    Commission in analyzing the total number of potentially affected
    small entities, the Commission requests commenters to estimate the
    number of small entities that may be affected by any rule changes
    that might result from this Public Notice.

11. *[700 MHz Guard Band Licenses]{.underline}.* In the *700 MHz Guard
    Band Order*, the Commission adopted size standards for "small
    businesses" and "very small businesses" for purposes of determining
    their eligibility for special provisions such as bidding credits and
    installment payments.[^34] A small business in this service is an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^35] Additionally, a "very small
    business" is an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^36] SBA approval
    of these definitions is not required.[^37] An auction of 52 Major
    Economic Area (MEA) licenses commenced on September 6, 2000, and
    closed on September 21, 2000.[^38] Of the 104 licenses auctioned, 96
    licenses were sold to nine bidders. Five of these bidders were small
    businesses that won a total of 26 licenses. A second auction of 700
    MHz Guard Band licenses commenced on February 13, 2001, and closed
    on February 21, 2001. All eight of the licenses auctioned were sold
    to three bidders. One of these bidders was a small business that won
    a total of two licenses.[^39]

12. *[Upper 700 MHz Band Licenses]{.underline}.* The Commission released
    a *Report and Order* authorizing service in the Upper 700 MHz
    band.[^40] An auction for these licenses, previously scheduled for
    January 13, 2003, was postponed.[^41]

13. *[Lower 700 MHz Band Licenses]{.underline}.* The Commission adopted
    criteria for defining three groups of small businesses for purposes
    of determining their eligibility for special provisions such as
    bidding credits.[^42] The Commission has defined a small business as
    an entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^43] A very small business is defined
    as an entity that, together with its affiliates and controlling
    principals, has average gross revenues that are not more than \$15
    million for the preceding three years.[^44] Additionally, the Lower
    700 MHz Band has a third category of small business status that may
    be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses.
    The third category is entrepreneur, which is defined as an entity
    that, together with its affiliates and controlling principals, has
    average gross revenues that are not more than \$3 million for the
    preceding three years.[^45] The SBA has approved these small size
    standards.[^46] An auction of 740 licenses (one license in each of
    the 734 MSAs/RSAs and one license in each of the six Economic Area
    Groupings (EAGs)) commenced on August 27, 2002, and closed on
    September 18, 2002. Of the 740 licenses available for auction, 484
    licenses were sold to 102 winning bidders. Seventy-two of the
    winning bidders claimed small business, very small business or
    entrepreneur status and won a total of 329 licenses.[^47] A second
    auction commenced on May 28, 2003, and closed on June 13, 2003, and
    included 256 licenses: 5 EAG licenses and 476 CMA licenses.[^48]
    Seventeen winning bidders claimed small or very small business
    status and won sixty licenses, and nine winning bidders claimed
    entrepreneur status and won 154 licenses.[^49]

14. *[Public Safety Radio Licensees]{.underline}.* As a general matter,
    public safety radio licensees include police, fire, local
    government, forestry conservation, highway maintenance, and
    emergency medical services.[^50] The SBA rules contain a small
    business size standard for cellular and other wireless
    telecommunications companies, which encompasses business entities
    engaged in wireless communications employing no more than 1,500
    persons.[^51] According to Census Bureau data for 2002, in this
    category there were 8,863 firms that operated for the entire
    year.[^52] Of this total, 401 firms had 100 or more employees, and
    the remainder had fewer than 100 employees.[^53] With respect to
    local governments, in particular, since many governmental entities
    as well as private businesses comprise the licensees for these
    services, we include under public safety services the number of
    government entities affected.

15. Wireless Communications Equipment Manufacturers; Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing. The Census Bureau defines this category as follows:
    "This industry comprises establishments primarily engaged in
    manufacturing radio and television broadcast and wireless
    communications equipment. Examples of products made by these
    establishments are: transmitting and receiving antennas, cable
    television equipment, GPS equipment, pagers, cellular phones, mobile
    communications equipment, and radio and television studio and
    broadcasting equipment."[^54] The SBA has developed a small business
    size standard for Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing, which is: all such firms
    having 750 or fewer employees.[^55] According to Census Bureau data
    for 2002, there were a total of 1,041 establishments in this
    category that operated for the entire year.[^56] Of this total,
    1,010 had employment of under 500, and an additional 13 had
    employment of 500 to 999.[^57] Thus, under this size standard, the
    majority of firms can be considered small.

## Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

16. Google requests that the Commission clarify that the existing rules
    governing the commercial bands of the 700 MHz spectrum already allow
    licensees to utilize what it describes as "dynamic spectrum
    management techniques." Google provides as examples "real-time
    airwaves auctions" and "device-driven registration." According to
    Google, in real-time airwaves auctions, a licensee can bestow the
    right to transmit an amount of power for a unit of time, with the
    total amount of power in any location being limited to a specified
    cap. With a per-device registration process, Google states, the
    communications device itself can become a key to the payment
    process, and that a consumer's price to purchase a device could
    include an airwaves registration fee that would grant the ability to
    gain unlimited use at a specified power level. Under its proposal,
    Google states that a licensee would simply purchase spectrum
    initially in the up-front auction, and then recover its costs over
    time by charging third parties for real-time and place use. The
    Public Notice seeks comment broadly on the extent to which the
    Commission's existing rules permit 700 MHz licensees to employ such
    "dynamic spectrum management techniques," and on whether the
    Commission should modify any of its rules to permit their use.

17. The Public Notice also seeks comment on Google's request that the
    Commission posit at least whether it would be in the public interest
    to mandate the use of such techniques for some, or even all, of the
    commercial spectrum to be auctioned in the 700 MHz bands.

18. The Public Notice also seeks comment on Google's proposal that the
    unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz
    band plan should be designated primarily or exclusively to be used
    for deployment of interactive, two-way broadband services; connected
    to the public internet; and used to support innovative
    software-based applications, services and devices.

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

19. The RFA requires an agency to describe any significant, specifically
    small business, alternatives that it has considered in reaching its
    proposed approach, which may include the following four alternatives
    (among others): "(1) the establishment of differing compliance or
    reporting requirements or timetables that take into account the
    resources available to small entities; (2) the clarification,
    consolidation, or simplification of compliance and reporting
    requirements under the rule for such small entities; (3) the use of
    performance rather than design standards; and (4) an exemption from
    coverage of the rule, or any part thereof, for such small
    entities."[^58]

20. The Public Notice seeks comment on the relative merits of dynamic
    auction techniques. The Public Notice also seeks comment on whether
    the Commission should designate the unpaired 6 MHz E Block (722-728
    MHz) in the current Lower 700 MHz band plan primarily or exclusively
    for deployment of broadband communications platforms. To assist in
    the analysis, commenters are requested to provide information
    regarding how small entities would be affected if the Commission
    were to adopt Google's proposals. Commenters should also provide
    information on alternative approaches to alleviate any potential
    burdens on small entities.

## Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

21. None.

[^1]: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT
    Docket No. 06-150, Revision of the Commission's Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket
    No. 94-102, Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, Biennial
    Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and 90 to
    Streamline and Harmonize Various Rules Affecting Wireless Radio
    Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
    700 MHz Guard Band Licenses and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, Report and Order and Further Notice of Proposed
    Rulemaking, FCC 07-72 (2007) (*700 MHz Band Report and Order and
    Further Notice*).

[^2]: Letter from Richard S. Whitt, Esq., Washington Telecom and Media
    Counsel, Google, Inc. to Marlene H. Dortch, Secretary, FCC, filed
    May 21, 2007 (*Google Ex Parte*).

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

[^4]: *Id*. According to Google, the airwaves auction would be managed
    via the Internet by a central clearinghouse. *Id.* at 4.

[^5]: *Id*. Google also states that the device could include
    collision-detection and back-off features to limit congestion. *Id.*

[^6]: *Id*. at 4.

[^7]: *Id.* at 4.

[^8]: *Id.* at 4.

[^9]: *Id*. at 4-5.

[^10]: *See 700 MHz Band Report and Order and Further Notice* at ¶ 2.

[^11]: *See Electronic Filing of Documents in Rulemaking Proceedings*,
    GC Docket No. 97-113, Report and Order, 13 FCC Rcd 11322 (1998).

[^12]: 47 C.F.R. § 1.1200 *et seq.*

[^13]: *See* 47 C.F.R. § 1.1206(b)(2).

[^14]: 47 C.F.R. § 1.1206(b).

[^15]: The RFA, *see* 5 U.S.C. §§ 601 -- 612, has been amended by the
    Small Business Regulatory Enforcement Fairness Act of 1996
    ("SBREFA"), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^16]: *See* 5 U.S.C. § 603. Although we are conducting an IRFA at this
    stage in the process, it is foreseeable that ultimately we will
    certify this action pursuant to the RFA, because we anticipate at
    this time that any rules adopted pursuant to this *Public Notice*
    will have no significant economic impact on a substantial number of
    small entities. *See* 5 U.S.C. § 605(b).

[^17]: *See* 5 U.S.C. § 603(a).

[^18]: *See* 5 U.S.C. § 603(a).

[^19]: In particular, this exemption extends to the requirements imposed
    by Chapter 6 of Title 5, United States Code, Section 3 of the Small
    Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of Title 44,
    United States Code. Consolidated Appropriations Act 2000, Pub. L.
    No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B);
    *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note
    at Sec. 213(a)(4)(A)-(B).

[^20]: 5 U.S.C. § 603(b)(3).

[^21]: 5 U.S.C. § 601(6).

[^22]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^23]: 15 U.S.C. § 632.

[^24]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^25]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^26]: 5 U.S.C. § 601(5).

[^27]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, pages 272-273, Tables 415 and 417.

[^28]: 13 C.F.R. § 121.201, NAICS code 517211.

[^29]: 13 C.F.R. § 121.201, NAICS code 517212.

[^30]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^31]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^32]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^33]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^34]: *See* Service Rules for the 746-764 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, *Second Report and Order*, 15 FCC
    Rcd 5299 (2000).

[^35]: *Id*. at 5343 ¶ 108.

[^36]: *Id*.

[^37]: *Id*. At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz
    bands, the Commission is exempt from 15 U.S.C. § 632, which requires
    Federal agencies to obtain Small Business Administration approval
    before adopting small business size standards).

[^38]: *See* "700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced," *Public Notice*, 15 FCC Rcd 18026 (2000).

[^39]: *See* "700 MHz Guard Bands Auctions Closes: Winning Bidders
    Announced," *Public Notice*, 16 FCC Rcd 4590 (WTB 2001).

[^40]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *Second Memorandum
    Opinion and Order*, 16 FCC Rcd 1239 (2001).

[^41]: *See* "Auction of Licenses for 747-762 and 777-792 MHz Bands
    (Auction No. 31) Is Rescheduled," *Public Notice*, 16 FCC Rcd 13079
    (WTB 2003).

[^42]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59), *Report and Order*, 17 FCC Rcd
    1022 (2002).

[^43]: *Id.* at 1087-88 ¶ 172.

[^44]: *Id.*

[^45]: *Id.* at 1088 ¶ 173.

[^46]: *See* Letter to Thomas Sugrue, Chief, Wireless Telecommunications
    Bureau, Federal Communications Commission, from Aida Alvarez,
    Administrator, Small Business Administration, dated August 10, 1999.

[^47]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 17
    FCC Rcd 17272 (WTB 2002).

[^48]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 18
    FCC Rcd 11873 (WTB 2003).

[^49]: *Id*.

[^50]: *See* subparts A and B of Part 90 of the Commission's Rules, 47
    C.F.R. §§ 90.1-90.22. Police licensees include 26,608 licensees that
    serve state, county, and municipal enforcement through telephony
    (voice), telegraphy (code), and teletype and facsimile (printed
    material). Fire licensees include 22,677 licensees comprised of
    private volunteer or professional fire companies, as well as units
    under governmental control. Public Safety Radio Pool licensees also
    include 40,512 licensees that are state, county, or municipal
    entities that use radio for official purposes. There are also 7,325
    forestry service licensees comprised of licensees from state
    departments of conservation and private forest organizations that
    set up communications networks among fire lookout towers and ground
    crews. The 9,480 state and local governments are highway maintenance
    licensees that provide emergency and routine communications to aid
    other public safety services to keep main roads safe for vehicular
    traffic. Emergency medical licensees (1,460) use these channels for
    emergency medical service communications related to the delivery of
    emergency medical treatment. Another 19,478 licensees include
    medical services, rescue organizations, veterinarians, persons with
    disabilities, disaster relief organizations, school buses, beach
    patrols, establishments in isolated areas, communications standby
    facilities, and emergency repair of public communications
    facilities.

[^51]: *See* 13 C.F.R. § 121.201 (NAICS code 517212); U.S. Census
    Bureau, 2002 Economic Census, Subject Series: Information,
    "Employment Size of Establishments for the United States: 2002,"
    Table 2, NAICS code 517212.

[^52]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Employment Size of Establishments for the United
    States: 2002," Table 2, NAICS code 517212.

[^53]: *Id.*

[^54]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    <http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342>.

[^55]: 13 C.F.R. § 121.201, NAICS code 334220.

[^56]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005);
    [http://factfinder.census.gov](http://factfinder.census.gov/). The
    number of "establishments" is a less helpful indicator of small
    business prevalence in this context than would be the number of
    "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^57]: *Id*. An additional 18 establishments had employment of 1,000 or
    more.

[^58]: 5 U.S.C. §§ 603(c)(1)-(4).