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 Federal  Communications  Commission  FCC  05-  174 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Improving  Public  Safety  Communications  in  the  800  MHz  Band 


 Consolidating  the  800  and  900  MHz  Industrial/  Land  Transportation  and 
 Business  Pool  Channels 
 Amendment  of  Part  2  of  the  Commissions  Rules  to  Allocate  Spectrum 
 Below  3  GHz  for  Mobile  and  Fixed  Services  to  Support  the  Introduction  of 
 New  Advanced  Wireless  Services,  including  Third  Generation  Wireless 
 Systems 
 Petition  for  Rule  Making  of  the  Wireless  Information  Networks  Forum  Concerning 
 the  Unlicensed  Personal  Communications  Service 


 Petition  for  Rule  Making  of  UT  Starcom,  Inc.,  Concerning  the  Unlicensed  Personal 
 Communications  Service 
 Amendment  of  Section  2.106  of  the  Commissions  Rules  to  Allocate  Spectrum 
 at  2  GHz  for  Use  by  the  Mobile  Satellite  Service 


 AIRPEAK  Communications,  LLC  800  MHz  ESMR  Election,  Request  for  Waiver 
 Airtel  Wireless,  LLC  800  MHz  ESMR  Election,  Request  for  Waiver 


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 WT  Docket  02-  55 
 ET  Docket  No.  00-  258 
 RM-  9498 
 RM-  10024 
 ET  Docket  No.  95-  18 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  October  3,  2005  Released:  October  5,  2005 
 By  the  Commission: 
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 TABLE  OF  CONTENTS 
 Heading  Paragraph  # 
 I.  INTRODUCTION  .......................................................................................................  1  II.  EXECUTIVE  SUMMARY  ...........................................................................................  3 


 III.  BACKGROUND.........................................................................................................  6  IV.  DISCUSSION.............................................................................................................  8 
 A.  Cellular  Systems  that  May  Operate  in  the  ESMR  Portion  of  the  800  MHz  Band  .....................................................................................................................  8 
 B.  Relocation  of  Incumbent  Licensees  into  the  ESMR  Portion  of  the  800  MHz  Band  ...................................................................................................................  11 
 1.  Relocation  Rights  of  EA-  Licensees  Operating  ESMR  Systems  in  the  Non-  ESMR  Portion  of  the  Band  ....................................................................  12 
 2.  Relocation  Rights  of  EA  Licensees  Operating  Non-  ESMR  Systems  in  the  Non-  ESMR  Portion  of  the  Band  ..............................................................  24 
 3.  Obligations  of  Relocating  Licensees  .............................................................  27  C.  Non-  ESMR  Incumbents  Currently  Located  in  the  ESMR  Portion  of  the 
 Band  ...................................................................................................................  30  D.  Prohibition  on  High  Density  Cellular  Systems  in  the  Non-  ESMR  Portion 
 of  the  800  MHz  Band..........................................................................................  33  E.  Comparable  Facilities  .........................................................................................  37 
 F.  Frequency  Coordination  .....................................................................................  42  G.  Expansion  Band  Issues  ......................................................................................  44 
 1.  Critical  Infrastructure  Industry  (CII)  Relocation..............................................  45  2.  Expansion  Band  in  Atlanta  ............................................................................  47 
 H.  Operational  Issues..............................................................................................  51  1.  Interim  Interference  Values  ...........................................................................  51 
 2.  Minimum  Receiver  Performance  Criteria.......................................................  57  I.  1.9  GHz  Band.....................................................................................................  60 
 1.  Challenges  to  the  Grant  of  1.9  GHz  Spectrum  Rights...................................  61  2.  Valuation  .......................................................................................................  78 
 3.  Effect  of  the  Proposed  Sprint/  Nextel  Merger.................................................  81  J.  800  MHz  Spectrum  Rights  Valuation..................................................................  85 
 1.  General  Category  Spectrum  Rights  ..............................................................  86  2.  Credit  for  Operational  Restrictions  at  the  Edge  of  ESMR  Portion  of  the 
 Band..............................................................................................................  88  3.  Credit  for  Installing  Filters..............................................................................  89 
 K.  EA  and  Site-  Based  Vacated  Spectrum...............................................................  90  L.  Application  Freeze..............................................................................................  96 
 M.  Cost  Reporting  and  Accounting  Issues.............................................................  100  N.  BAS/  MSS  Issues  ..............................................................................................  101 
 1.  NAB/  MSTV/  SBE  and  Nextel  Petitions  for  Reconsideration  and  Nextel/  MSTV/  NAB  Request  for  Declaratory  Ruling.....................................  101 
 2.  TMI/  TerreStar  Petition  for  Clarification  ........................................................  110 
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 3.  Cost  Accounting  and  Reporting...................................................................  116  O.  Clarifications  .....................................................................................................  117 
 1.  Site-  Based  SMR  Facilities...........................................................................  117  2.  Definition  of  Unacceptable  Interference  ......................................................  118 
 3.  Definition  of  Critical  Infrastructure  Industry  .................................................  120  4.  Dispute  Resolution  Processes  ....................................................................  121 
 5.  Frequency  Coordination  of  EA-  based  SMR  Frequencies............................  122  6.  Reconfiguration  of  Areas  That  Do  Not  Have  Associated  NPSPAC 
 Regions.......................................................................................................  123  7.  900  MHz  Interference  and  Spectrum  Trafficking  .........................................  125 
 V.  ORDERING  CLAUSES  .........................................................................................  126 
 APPENDIX  A:  PROCEDURAL  MATTERS  APPENDIX  B:  FINAL  RULES 


 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order  (MO&  O),  we  address  petitions  for  reconsideration,  a  request  for  waiver  and  a  request  for  declaratory  ruling  submitted  in 


 the  800  MHz  Public  Safety  proceeding,  specifically:  petitions  for  reconsideration  of  the  Report  and  Order,  Fifth  Report  and  Order,  Fourth  Memorandum  Opinion  and  Order,  and 
 Order  (800  MHz  R&  O),  petitions  for  reconsideration  of  the  Commissions  Supplemental  Order  and  Order  on  Reconsideration  (Supplemental  Order),  a  petition  for  declaratory 
 ruling  submitted  by  Nextel,  the  Association  for  Maximum  Service  Television,  Inc.,  and  the  National  Association  of  Broadcasters,  and  a  petitions  for  waiver  of  ESMR  election 
 criteria  filed  by  AIRPEAK  Communications,  LLC  (Airpeak)  and  Airtel  Wireless,  LLC. 
 2.  The  800  MHz  R&  O,  released  August  6,  2004,  adopted  technical  and  procedural  measures  to  address  the  ongoing  and  growing  problem  of  interference  to 


 public  safety  communications  in  the  800  MHz  band.  1  The  Commission  addressed  the  ongoing  interference  problem  over  the  short-  term  by  adopting  technical  standards 
 defining  unacceptable  interference  in  the  800  MHz  band  and  detailing  responsibility  for  interference  abatement.  2  The  Commission  further  determined  that  solving  the 
 interference  problem  for  the  long-  term  necessitated  reconfiguring  the  800  MHz  band  to  separate  generally  incompatible  technologies  whose  current  proximity  to  each  other  is 


 1  See  Improving  Public  Safety  Communications  in  the  800  MHz  Band,  WT  Docket  02-  55,  Report  and 
 Order,  Fifth  Report  and  Order,  Fourth  Memorandum  Opinion  and  Order,  and  Order,  19  FCC  Rcd  14969  (2004)  as  amended  by  Erratum,  19  FCC  Rcd  19651  (WTB  PSCID  2004)  and  Erratum,  19  FCC  Rcd  21818  (WTB  PSCID 


 2004)  (800  MHz  R&  O). 
 2  See  800  MHz  R&  O,  19  FCC  at  Rcd  15021-  15045    88-  141  (adopting  new  technical  standards  for 
 protecting  public  safety,  critical  infrastructure  and  other  800  MHz  high-  site  licensees  from  unacceptable  interference). 
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 Because  the  Supplemental  Order  revised,  in  some  respects,  the  provisions  of  the  800  MHz  R&  O,  some  petitions  for  reconsideration  of  the  800  MHz  R&  O,  filed  before  the 
 Supplemental  Order  was  released,  request  relief  that  was  later  granted  in  the  Supplemental  Order.  To  that  extent,  some  issues  raised  in  petitions  for  reconsideration 
 were  rendered  moot.  8  Accordingly,  we  do  not  address  those  issues  further  in  the  instant  MO&  O  except  to  note  that  they  were  addressed  and  resolved  by  the  Supplemental 
 Order  9  .  We  now  turn  to  the  remaining  issues  before  us. 
 IV.  DISCUSSION 
 A.  Cellular  Systems  that  May  Operate  in  the  ESMR  Portion  of  the  800  MHz  Band 


 7.  In  the  800  MHz  R&  O,  the  Commission  established  a  definition  of  high-density  cellular  to  delineate  those  systems  that  are  precluded  from  operating  in  the 


 8  In  the  Report  and  Order  we  prohibited  non-  ESMR  (i.  e.  high-  site)  operations  in  the  ESMR  band.  That 
 decision  was  the  subject  of  three  petitions  for  reconsideration  seeking  to  permit  non-  ESMR  Economic  Area  (EA)  licensees  to  relocate  to  the  ESMR  band.  See  Preferred  Communications  Systems,  Inc.  and  Silver  Palm 


 Communications,  Inc.  Petition  for  Reconsideration,  filed  Dec,  22,  2004  (Preferred  PFR  (of  R&  O))  at  32-  33;  Joint  Petition  for  Partial  Reconsideration  of  Coastal  SMR  Network  L.  L.  C./  A.  R.  C.,  Inc.  and  Scott  C.  MacIntyre,  filed 
 Dec.  22,  2004  (Coastal  PFR  (of  R&  O)  at  31-  32;  and  Petition  for  Reconsideration  of  Charles  D.  Guskey,  filed  Dec.  22,  2004  (Guskey  PFR  (of  R&  O))  at  10-  11.  The  Commissions  decision  in  the  Supplemental  Order  giving  EA 
 licensees  not  currently  operating  ESMR  systems  the  option  to  relocate  their  EA  systems  to  the  ESMR  portion  of  the  band  moots  this  aspect  of  the  above-  mentioned  petitions.  See  also  Supplemental  Order,  19  FCC  Rcd  25153- 
 57    75-  84. 
 The  Commissions  setting  out  the  licensing  and  construction  requirements  for  ESMR-  vacated  spectrum  moots  aspects  of  petitions  for  reconsideration  filed  by  Entergy  Corporation  and  Entergy  Services,  Inc.  (Entergy) 


 and  American  Electric  Power  Company,  Inc.  (AEP).  See  Petition  for  Reconsideration  of  Entergy  Corporation  and  Entergy  Services,  Inc.  (Entergy),  filed  Dec.  22,  2004  (Entergy  PFR  (of  R&  O))  at  5-  6  and  Petition  for  Clarification 
 of  American  Electric  Power  Company,  Inc.,  filed  Dec.  21,  2004  (AEP  PFR  (of  R&  O))  at  4-  6.  See  also  Supplemental  Order,  19  FCC  Rcd  25144-  49    57-  68. 


 The  Commissions  clarifying  the  rights  of  incumbents  operating  on  former  channels  121-  150  moots  aspects  of  the  petition  for  reconsideration  filed  by  AEP.  See  AEP  PFR  (of  R&  O)  at  7-  8;  see  also  Supplemental 
 Order,  19  FCC  Rcd  25146-  47    61. 
 The  Commissions  decisions  regarding  the  amount  of  information  licensees  submitting  interference  complaints  must  provide  commercial  mobile  radio  system  (CMRS)  providers,  as  well  as  when  an  electronic 


 database  must  be  placed  into  operation,  moots  portions  of  a  petition  for  reconsideration  filed  by  CTIA-  The  Wireless  Association.  See  Petition  for  Reconsideration,  filed  Dec.  22,  2004,  by  CTIA-  The  Wireless  Association 
 (CTIA  PFR  (of  R&  O))  at  2-  3.  See  also  Supplemental  Order,  19  FCC  Rcd  25141-  43    46-  50. 
 9  Additionally,  we  decline  to  address  the  request  of  Consolidated  Edison  Company  of  New  York,  Inc. 
 (ConEd)  seeking  clarification  on  which  channels  its  itinerant  operations  will  be  relocated  to.  See  Petition  for  Clarification  and  Reconsideration,  filed  Dec.  22,  2004,  by  Consolidated  Edison  Company  of  New  York,  Inc. 


 (ConEd  PFR  (of  R&  O))  at  3-  5.  This  is  a  matter  for  the  Transition  Administrator.  Thus,  we  will  not  address  it  in  this  MO&  O. 
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 non-  ESMR  portion  of  the  800  MHz  band.  10  Several  800  MHz  licensees  express  concern,  however,  that  this  same  high-  density  cellular  definition  is  also  being  used  to 
 limit  access  to  the  ESMR  portion  of  the  band.  11  They  note  that  the  Transition  Administrator  (TA)  has  required  licensees  seeking  to  relocate  to  the  ESMR  portion  of 
 the  band  to  certify  that  they  meet  the  high-  density  cellular  definition  in  the  Commissions  rules.  12  The  potential  effect  of  this,  these  parties  contend,  would  be  to  preclude  certain 
 incumbent  licensees  with  cellular-  architecture  systems  that  do  not  meet  the  high-  density  criteria  from  relocating  to  or  remaining  in  the  ESMR  band.  Airpeak,  for  example, 
 asserts  that  strictly  applying  the  high-  density  criteria  could  exclude  its  system  and  other  iDEN-  based  systems  from  relocating  to  or  remaining  in  the  ESMR  portion  of  the  band.  13 


 8.  We  agree  that  these  licensees  have  raised  a  legitimate  concern  that  requires  clarification  of  our  rules.  We  intended  the  term  high  density  cellular,  as  defined  in  our 
 800  MHz  rules,  only  as  a  limitation  on  the  kind  of  cellular  system  that  is  prohibited  in  the  non-  ESMR  portion  of  the  800  MHz  band.  It  was  not  our  intent  that  this  definition  should 
 limit  eligibility  for  operation  in  or  relocation  to  the  ESMR  band,  or  to  exclude  other 
 10  Herein,  we  refer  to  the  800  MHz  band  as  being  divided  into  two  parts,  the  ESMR  and  non-  ESMR 
 portions.  The  ESMR  portion  of  the  band  extends  from  817  MHz/  862  MHz  to  824  MHz/  869  MHz  in  most  of  the  country  and  from  813.5  MHz/  858.5  MHz  to  824  MHz/  869  MHz  in  the  Southeast  area.  The  non-  ESMR  portion  of 


 the  band  extends  from  806/  851  MHz  to  the  lower  limit  of  the  ESMR  portion  of  the  band  in  all  areas  of  the  country.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15051-  52,  15058    151,  166. 


 A  cellular  system  may  not  operate  in  the  non-  ESMR  portion  of  the  band  if  such  system  is  a  high  density  system,  which  is  defined  as:  (1)  having  more  than  five  overlapping  interactive  sites  featuring  hand-  off 
 capability;  and  (2)  any  one  of  such  sites  has  an  antenna  height  of  less  than  30.4  meters  (100  feet)  above  ground  level  with  an  antenna  height  above  average  terrain  (HAAT)  of  less  than  152.4  meters  (500  feet)  and  twenty  or 
 more  paired  frequencies.  800  MHz  R&  O,  19  FCC  Rcd  at  15060    172;  47  C.  F.  R.    90.7. 
 11  See  ex  parte  letter  from  Elizabeth  Sachs,  counsel  to  Airpeak,  to  Cathy  Seidel,  Acting  Chief,  Wireless 
 Telecommunications  Bureau,  dated  May  12,  2005.  See  also,  ex  parte  letter  from  Senator  Lindsey  Graham  and  Senator  Jim  DeMint,  to  Chairman  Kevin  Martin,  Federal  Communications  Commission,  dated  May  16,  2005 


 (advocating  allowing  SMR  licensees  that  do  not  meet  the  high-  density  cellular  criteria  to  relocate  to  the  ESMR  portion  of  the  band);  Letter  from  Robert  Ritter,  counsel  for  North  Point  Communications,  Inc.,  to  800  MHz 
 Transition  Administrator,  dated  May  12,  2005,  at  2,  n.  5  (asserting  that  North  Points  systems  are  eligible  for  relocation  to  the  ESMR  portion  of  the  band,  notwithstanding  the  fact  that  they  do  not  employ  twenty  or  more 
 paired  frequencies). 
 12  See  800  MHz  Transition  Administrator  Accepting  EA  Licensee  Relocation  Elections,  Press  Release 
 dated  Apr.  21,  2005,  stating:  If  electing  to  move  to  the  ESMR  Band  or  remain  in  the  ESMR  Band,  [a  licensee  must  file]  a  certification  that:  (1)  the  licensee  has  the  spectrum  capacity  to  build  and  operate  an  ESMR  system 


 pursuant  to  the  definition  of  ESMR  in  Section  90.7  of  the  FCCs  rules  (which  includes  having  more  than  five  overlapping  interactive  sites  with  hand-  off  capability  and  one  such  site  with  an  antenna  height  of  less  than  30.  4 
 meters  (100  ft.)  above  ground  level  and  a  HAAT  of  less  than  152.4  meters  (500  ft.)  and  20  or  more  paired  frequencies);  and  (2)  the  licensee  intends  to  operate  an  ESMR  system  within  the  ESMR  Band. 


 13  See  ex  parte  letter  from  Elizabeth  Sachs,  counsel  to  Airpeak,  to  Cathy  Seidel,  Acting  Chief,  Wireless 
 Telecommunications  Bureau,  dated  May  12,  2005. 
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 cellular-  architecture  systems,  e.  g.,  iDEN-  based  systems,  that  do  not  meet  the  high-density  criteria.  We  recognize,  however,  that  the  Commission  may  have  drafted  the 
 definition  in  a  way  that  led  the  TA  and  others  to  interpret  its  requirements  differently.  Therefore,  we  amend  and  clarify  our  rules  to  provide  a  broader  definition  of  800  MHz 
 cellular  systems  that  may  operate  in  the  ESMR  portion  of  the  band.  Specifically  we  define  a  800  MHz  cellular  system  as  a  system  that  uses  multiple,  interconnected, 
 multi-  channel  transmit/  receive  cells  capable  of  frequency  reuse  and  automatic  handoff  between  cell  sites  to  serve  a  larger  number  of  subscribers  than  is  possible  using  non-cellular 
 technology.  Under  this  definition,  conventional  high  site  systems  continue  to  be  excluded,  but  iDEN-  based  and  other  cellular  systems  are  not.  14 


 9.  Given  our  clarification  of  the  rules  for  operating  in  the  ESMR  band,  we  believe  that  licensees  with  cellular-  architecture  systems  who  do  not  meet  the  definition  of  high 
 density  cellular  should  be  given  the  opportunity  to  file  ESMR  elections.  In  addition,  in  light  of  the  rule  changes  discussed  at  paragraphs  11-  28  infra,  15  we  believe  that 
 licensees  who  have  already  selected  ESMR  status  should  have  the  opportunity  to  modify  their  previous  elections.  We  therefore  direct  the  TA  to  open  a  twenty-  day 
 window  during  which  (i)  licensees  with  cellular  architecture  systems  who  do  not  meet  the  definition  of  high  density  cellular  may  file  new  elections  to  relocate  to  the  ESMR 
 portion  of  the  band,  and  (ii)  licensees  who  have  already  selected  ESMR  status  can  modify  their  previous  elections,  consistent  with  the  rules  as  amended.  16 


 B.  Relocation  of  Incumbent  Licensees  into  the  ESMR  Portion  of  the  800  MHz  Band 
 10.  A  number  of  parties  seek  reconsideration  of  our  rules  regarding  the  rights  of  incumbent  licensees  to  relocate  or  operate  in  the  ESMR  band.  17  In  the  paragraphs 
 below,  we  address  the  petitions  for  reconsideration  pertaining  to  these  issues  and  modify  and  clarify  certain  aspects  of  our  rules. 


 1.  Relocation  Rights  of  EA-  Licensees  Operating  ESMR  Systems  in  the  Non-  ESMR  Portion  of  the  Band 
 11.  The  800  MHz  R&  O  provided  that  800  MHz  EA  licensees  operating  ESMR  systems  in  the  non-  ESMR  portion  of  the  band  have  the  option  to  relocate  into  the  ESMR 
 14  See  47  C.  F.  R.    90.7  in  Appendix  B  infra. 
 15  Among  other  things,  we  provide  that  licensees  who  move  to  the  ESMR  band  but  who  do  not  construct 
 their  licenses  will  forfeit  their  licenses.  See    27  infra. 
 16  While  we  direct  the  TA  to  open  an  additional  twenty-  day  election  window,  we  commit  to  the  TAs 
 discretion  the  date  on  which  such  window  must  open.  We  do,  however,  urge  the  TA  to  act  promptly. 
 17  See  Petition  for  Reconsideration,  filed  Mar.  10,  2005,  by  AIRPEAK  Communications  LLC,  (Airpeak 
 PFR  (of  Supplemental  Order)  at  5-  9);  Petition  for  Partial  Reconsideration  of  the  Safety  and  Frequency  Equity  Competition  Coalition,  filed  Mar.  10,  2005  (SAFE  PFR  (of  Supplemental  Order))  at  3-  4. 
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 portion  of  the  band.  18  EA  licensees  who  exercise  this  option  to  relocate  are  to  receive  equivalent,  encumbrance-  free  EA  licenses  in  the  ESMR  band,  and  are  entitled  to 
 relocate  their  systems  at  Nextel's  expense.  19  The  TA  has  received  elections  to  relocate  from  four  EA  licensees  (in  addition  to  Nextel  and  SouthernLINC)  that  were  operating 
 ESMR  systems  on  November  22,  2004,  the  date  of  Federal  Register  publication  of  the  800  MHz  R&  O.  20 


 12.  In  the  800  MHz  R&  O,  the  Commission  also  recognized  that  some  EA  licensees  operating  ESMR  systems  had  site-  based  licenses  for  base  stations  that  were 
 an  integral  part  of  their  ESMR  systems,  but  which  operated  on  channels  outside  the  channel  block  comprising  the  EA  license.  21  The  Commission  gave  these  licensees  the 
 option  to  relocate  their  site-  based  licenses,  together  with  their  EA  licenses,  to  the  ESMR  portion  of  the  band,  provided  that  they:  (a)  currently  hold  an  EA  license  in  the  relevant 
 market;  and  (b)  have  been  using  the  site-  based  license  as  part  of  a  cellular-  architecture  system  in  that  market  as  of  the  Federal  Register  publication  date  of  the  800  MHz  R&  O.  22 


 13.  In  the  Supplemental  Order,  the  Commission  specified  that  a  site-  based  license  is  integral  to  an  ESMR  system  if  (1)  the  40  dBV/  m  coverage  contour  of  the 
 station  overlaps  the  40  dBV/  m  coverage  contour  of  another  cell  in  the  ESMR  system,  and  (2)  the  station  is  capable  of  "hand-  off"  of  calls  to  and  from  one  or  more  overlapping 
 cells.  23  The  Commission  further  specified  that  in  order  for  a  site-  based  license  to  qualify  for  relocation,  the  station  must  have  been  operating  as  part  of  the  EA  licensees  EMSR 
 system  as  of  the  date  the  800  MHz  R&  O  was  published  in  the  Federal  Register.  24  The  Commission  also  stated  that,  when  a  site-  based  station  is  moved  into  the  ESMR  portion 
 of  the  band,  the  associated  license  will  be  limited  to  the  stations  40  dBV/  m  coverage  contour.  25  This  was  a  modification  of  the  800  MHz  R&  O,  in  which  the  Commission 


 18  See  800  MHz  R&  O,  19  FCC  Rcd  at  15056    162;  Transition  Administrator  Press  Release,  WT  Docket 
 02-  55,  Public  Notice,  20  FCC  Rcd  668  (WTB  2005). 
 19  See  Supplemental  Order,  19  FCC  Rcd  at  25154    77. 


 20  Elections  have  been  submitted  by  AIRPEAK  Communications,  LLC;  Airtel  Wireless,  LLC;  Preferred 
 Communications  Systems,  Inc.,  and  Colorado  Callcomm,  Inc.  See  Regional  Prioritization  Plan  of  the  800  MHz  Transition  Administrator  at  10-  11  (Jan.  31,  2005).  The  TA  also  received  correspondence  from  Nextel  and 


 SouthernLINC  indicating  their  intent  to  relocate  to  the  ESMR  band.  See  id.  at  12-  13  (confirming  receipt  of  Nextel,  SouthernLINC  ESMR  elections). 


 21  See  800  MHz  R&  O,  19  FCC  Rcd  at  15057    163. 
 22  Id. 
 23  Supplemental  Order,  19  FCC  Rcd  at  25154-  55    78. 
 24  Id. 
 25  Id. 
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 provided  that  integrated  site-  based  licenses  would  be  converted  to  EA-  wide,  unencumbered  licenses  in  the  ESMR  band.  26 
 14.  Airpeak  seeks  reconsideration  of  certain  aspects  of  the  Supplemental  Order  as  they  pertain  to  the  rights  of  EA  licensees  with  ESMR  systems  to  relocate  to  the 
 ESMR  band.  27  To  the  extent  that  the  Commission  does  not  grant  reconsideration,  Airpeak  also  seeks  the  same  relief  on  a  waiver  basis.  28  We  consider  Airpeaks 
 reconsideration  and  waiver  arguments  on  each  issue  jointly. 
 15.  Non-  Overlapping  Site-  Base  Stations.  First,  Airpeak  argues  that  all  site-  based  cells  currently  integrated  into  an  ESMR  network  not  just  those  having  an  overlapping 


 40  dBV/  m  coverage  contour  with  other  integral  site-  based  cells  should  be  eligible  for  relocation  into  the  ESMR  band.  29  In  support  of  its  argument,  Airpeak  notes  that  it  has 
 sites  that  are  integrated  into  its  network  switch  and  are  able  to  carry  communications  among  its  subscribers  even  though  they  do  not  have  contours  that  overlap  with  other 
 portions  of  the  network.  30  Airpeak  contends  that  this  is  a  common  feature  of  systems  that  serve  rural  areas,  particularly  in  the  earlier  phases  of  system  deployment.  We 
 agree  with  Airpeak  that  such  sites  may  be  regarded  as  integrated  even  if  they  do  not  have  overlapping  contours  with  other  sites.  Therefore,  we  grant  that  portion  of 
 Airpeaks  petition  for  reconsideration  and  will  allow  licensees  to  present  facts  to  the  TA  that  may  support  a  finding  that  non-  overlapping  stations  are,  in  fact,  an  integral  part  of 
 the  licensees  EA-  based  system.  31  For  example,  and  without  limitation,  a  licensee  could  satisfy  the  integrated  communications  system  standard  by  providing  documentation 
 establishing  that  the  isolated  station  is  served  by  the  same  switch  as  the  EA-  based  system,  and  that  the  stations  coverage  area  is  part  of  the  service  area  for  subscribers 
 to  the  EA-  based  system.  Thus,  we  grant  that  portion  of  Airpeaks  petition  for  reconsideration  and  direct  the  TA  to  evaluate  such  requests  in  light  of  the  discussion 
 above. 
 16.  Leased  Stations.  Airpeak  also  submits  that  it  should  be  able  to  relocate  site-based  facilities  that  it  acquired  through  the  Commissions  spectrum  lease  authority  that 


 26  Id. 
 27  See  Petition  for  Reconsideration,  filed  Mar.  10,  2005,  by  AIRPEAK  Communications  LLC  (Airpeak 
 PFR  (of  Supplemental  Order)  at  5-  9). 
 28  AIRPEAK  Communications,  LLC  800  MHz  ESMR  Election,  Request  for  Waiver,  filed  March  17, 
 2005  (Airpeak  Waiver  Request). 
 29  Airpeak  PFR  (of  Supplemental  Order)  at  8-  9. 


 30  Id. 
 31  The  EA-  based  systems  need  not  be  an  ESMR  system.  See    25  infra. 
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 are  integrated  into  its  EA-  based  system.  32  We  agree,  and  grant  that  portion  of  Airpeaks  waiver  request  to  the  extent  of  directing  the  TA  to  consider  site-  based  facilities  Airpeak 
 acquired  through  the  spectrum  lease  process  as  potentially  eligible  for  relocation  to  the  ESMR  portion  of  the  band.  However,  Airpeak  bears  the  burden  of  demonstrating  to  the 
 TA  that  the  leased  station  it  wishes  to  relocate  to  the  ESMR  portion  of  the  band  was  an  integral  part  of  its  EA-  based  system  as  of  the  effective  date  of  the  800  MHz  R&  O. 
 Airpeak  must  also  provide  the  consent  of  the  licensee  of  the  leased  station.  In  making  these  provisions,  we  are  informed  by  the  arguments  advanced  by  Airpeak  to  the  effect 
 that  we  would  otherwise  deprive  existing  subscribers  of  service  from  an  outlying  cell  when  it  relocated  to  the  ESMR  band.  33 


 17.  Conversion  of  Site-  based  Licenses  to  EA-  wide  Licenses.  Airpeak  also  seeks  reconsideration  or  waiver  of  the  Commissions  decision  in  the  Supplemental  Order  to 
 define  relocated  site-  based  licenses  associated  with  an  ESMR  system  based  on  the  stations  40  dBV/  m  coverage  contour,  instead  of  the  licensee  receiving  an  EA-  wide 
 license  as  provided  in  the  800  MHz  R&  O.  34  Airtel  Wireless,  LLC  seeks  similar  relief.  35  Airpeak  proposes  that  a  site-  based  license  or  licenses  eligible  for  relocation  should  be 
 converted  to  an  EA-  wide  license  if  the  22  dBV/  m  contours  of  the  site-  based  license  or  licenses  cover  at  least  fifty  percent  of  the  population  within  the  EA.  36  Airtel  argues  for 
 similar  relief  for  a  site-  based  license  or  licenses  eligible  for  relocation  whose  22  dBV/  m  contours  cover  at  least  thirty-  five  percent  of  the  population  within  the  EA.  37  Airpeak 
 argues  that  this  is  consistent  with  Section  90.685(  b)  of  the  Commissions  rules  whereby  one-  third  population  coverage  is  the  first  benchmark  for  demonstrating  satisfactory 
 spectrum  utilization  throughout  a  geographic  area  and  two-  thirds  coverage  is  used  to  demonstrate  conclusive  evidence  that  the  spectrum  is  being  used  productively.  38 
 Airpeak  posits  that  a  station  that  has  already  reached  a  fifty  percent  penetration  level 


 32  See  Airpeak  Waiver  Request;  Opposition  of  Nextel  Communications,  Inc.  to  Airpeak  Request  for 
 Waiver,  filed  March  28,  2005  by  Nextel  Communications,  Inc.  at  9-  10;  Reply  to  Opposition  to  Request  for  Waiver,  filed  April  4,  2005,  by  AIRPEAK  Communications,  LLC  (Airpeak  Waiver  Reply)  at  8-  9. 


 33  Airpeak  PFR  (of  Supplemental  Order)  at  8-  9. 
 34  Id.  at  7,  citing  800  MHz  R&  O,  19  FCC  Rcd  at  15057    163,  and  Supplemental  Order,  19  FCC  Rcd  at 
 25154-  55    78. 
 35  Airtel  Wireless,  LLC,  800  MHz  ESMR  Election,  Request  for  Waiver,  filed  March  25,  2005.  (Airtel 
 Waiver  Request.) 
 36  Airpeak  PFR  (of  Supplemental  Order)  at  8. 


 37  Airtel  Waiver  Request  at  4. 
 38  Id.  at  8-  9  citing  47  C.  F.  R.    90.685(  b). 
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 likely  has  captured  the  major  population  areas  within  the  market.  39  Airtel  argues  that  the  relief  it  seeks  is  warranted  by  considerations  of  equity  and  administrative  ease.  40 
 18.  We  are  not  persuaded  by  Airpeaks  argument  for  reconsideration  on  this  issue,  but  we  conclude  that  Airpeak  and  Airtel  may  be  entitled  to  partial  relief  on  a 
 waiver  basis.  We  will  allow  Airpeak  and  Airtel  to  obtain  an  EA-  wide  license  in  the  ESMR  band  for  any  site-  based  license  or  licenses  eligible  for  relocation,  provided  that  it  can 
 demonstrate  that  the  40  dBV/  m  contours  of  the  site-  based  license  or  licenses  cover  at  least  fifty  percent  of  the  population  within  the  EA.  We  believe  the  40  dBV/  m  contour 
 represents  a  better  metric  for  arguing  coverage  equivalency  rather  than  the  22  dBV/  m  contour  proposed  by  Airpeak  and  Airtel.  Section  90.693(  b)  defines  the  40  dBV/  m 
 contour  as  a  800  MHz  site-  based  stations  service  area  and  the  22  dBV/  m  contour  as  the  area  which  can  not  be  expanded  for  purposes  of  co-  channel  protection  to  other 
 stations.  41 
 19.  Acquired  Site-  Based  Licenses  Not  Integrated  Prior  to  November  22,  2004.  Airpeak  also  seeks  waiver  of  the  requirement  that  site-  based  cells  must  have  been 


 operating  as  part  of  an  integrated  communications  system  as  of  the  date  the  800  MHz  R&  O  was  published  in  the  Federal  Register.  Airpeak  asks  that  we  allow  it  to  relocate 
 certain  site-  based  stations  that  Airpeak  had  purchased  from  other  licensees  but  had  not  integrated  into  its  ESMR  systems  by  the  date  the  800  MHz  R&  O  was  published  in  the 
 Federal  Register.  42  Airpeak  notes  that  it  acquired  licenses  in  three  transactions  after  the  August  6,  2004  release  date  of  the  800  MHz  R&  O  but  before  November  22,  2004,  the 
 date  the  800  MHz  R&  O  was  published  in  the  Federal  Register.  43  Airpeak  states  that  it  had  integrated  approximately  one-  half  of  the  acquired  licenses  into  its  ESMR  systems 
 by  November  22,  2004  and  that  it  intended  to  integrate  the  other  site-  based  licenses  by  that  date,  but  was  prevented  from  doing  so  by:  (1)  time  required  to  obtain  zoning 
 approvals;  (2)  delay  in  obtaining  interconnection  lines  from  the  site-  based  cell  to  the  ESMR  switch;  (3)  the  need  to  relocate  the  licensee  sellers  customers  to  other  services, 
 and  (4)  other  logistical  difficulties  encountered  in  acquiring  site-  based  licenses  and  integrating  them  in  a  three  and  one-  half  month  time  frame.  44 


 39  Id.  at  9. 
 40  Airtel  Waiver  Request  at  4. 
 41  See  47  C.  F.  R.    90.693(  b). 
 42  See  Airpeak  Waiver  Request  at  12-  14.  Airpeak  lists  the  relevant  stations  at  Appendix  C  of  the  Waiver 
 Request. 
 43  See  ex  parte  letter  from  Elizabeth  R.  Sachs,  Counsel  for  Airpeak,  to  Catherine  Seidel,  Acting  Chief, 
 Wireless  Telecommunications  Bureau,  dated  July  6,  2005. 
 44  See  id. 
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 20.  The  Commissions  underlying  purpose  of  establishing  a  cutoff  date  in  connection  with  relocation  of  site-  based  licenses  into  the  ESMR  band  was  to  discourage 
 licensees  from  seeking  to  acquire  and  relocate  large  numbers  of  site-  based  licenses  to  the  ESMR  band  for  speculative  purposes.  We  believe,  however,  that  Airpeak  has 
 presented  sufficient  facts  to  demonstrate  that  it  acquired  site-  based  licenses  in  order  to  enhance  its  existing  service  to  subscribers  and  not  for  any  speculative  purpose.  We 
 believe  there  are  several  factors  meriting  the  grant  of  Airpeaks  requested  waiver:  (1)  Airpeak  was  operating  an  ESMR  system  in  the  EAs  in  which  it  acquired  the  site-  based 
 licenses;  (2)  Airpeak  has  shown  that  the  majority  of  acquired  licenses  were  needed  to  meet  growing  subscriber  demand;  (3)  some  of  the  acquired  licenses  were  on  channels 
 lying  within  Airpeaks  EA  spectrum  block;  and  (4)  Airpeak  exercised  reasonable  diligence  in  seeking  to  integrate  the  licenses  into  its  system,  and  some  of  the  delays  it 
 experienced  were  not  within  its  control. 
 21.  Moreover,  we  believe  that  unique  or  unusual  factual  circumstances  are  present  when  a  licensee  must  convert  site-  based  licenses  to  ESMR  cells  on  such  short 


 notice.  Although  Airpeak  could  have  acquired  the  site-  based  licenses  before  the  800  MHz  R&  O  was  released,  we  credit  its  representation  that  negotiations  were  in  progress 
 before  that  date.  We  also  recognize  that,  during  the  time  the  800  MHz  NPRM  was  pending  and  the  time  the  800  MHz  R&  O  was  released,  sufficient  uncertainty  about  how 
 site-  based  licenses  would  be  incorporated  into  the  overall  band  reconfiguration  process  existed  so  that  a  business  decision  on  whether  to  acquire  site-  based  licenses  was 
 problematic. 
 22.  We  grant  that  portion  of  Airpeaks  waiver  to  the  extent  of  directing  the  TA  to  consider  the  subject  site-  based  facilities  as  potentially  eligible  for  relocation  to  the 


 ESMR  portion  of  the  band.  However,  we  direct  Airpeak  to  provide  additional  detail  to  demonstrate  the  validity  of  its  contention  that  the  site-  based  licenses  at  issue  can  and 
 will  be  integrated  into  Airpeaks  ESMR  systems.  Specifically,  with  respect  to  the  unconstructed  licenses  that  Airpeak  seeks  to  include  for  relocation,  it  must  demonstrate 
 to  the  TA  that  the  40  dBV/  m  contours  of  the  acquired  stations  either  overlap  the  EA  served  by  Airpeaks  system  or  overlap  the  40  dBV/  m  contours  of  stations  that  link  back 
 to  the  EA.  Additionally,  Airpeak  must  demonstrate  to  the  TA  that  the  assignment  of  the  subject  licenses  had  been  consummated  by  the  date  the  800  MHz  R&  O  was  published 
 in  the  Federal  Register. 
 2.  Relocation  Rights  of  EA  Licensees  Operating  Non-  ESMR  Systems  in  the  Non-  ESMR  Portion  of  the  Band 


 23.  In  the  Supplemental  Order,  the  Commission  extended  the  option  to  relocate  to  the  ESMR  band  to  EA  licensees  that  were  not  operating  an  ESMR  system  as  of  the 
 Federal  Register  publication  date  of  the  800  MHz  R&  O,  including  those  EA  licensees 
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 27.  Failure  to  certify  the  implementation  of  ESMR  technology  by  the  deadline  will  result  in  the  automatic  cancellation  of  the  EA  license  (and  any  associated  site-  based 
 authorizations  the  licensee  has  elected  to  relocate  to  the  ESMR  portion  of  the  band)  for  failure  to  construct  an  ESMR  system  in  the  ESMR  Band.  55  In  such  an  event,  the 
 licensees  spectrum  would  revert  to  Nextel.  For  the  reasons  explained  supra  there  is  good  reason  for  expanding  the  classes  of  EA  licensees  eligible  to  relocate  to  the  ESMR 
 portion  of  the  band  and  potentially  reducing  the  amount  of  ESMR  band  spectrum  available  to  Nextel  in  the  process.  If  relocating  EA  licensees  fail  to  use  the  spectrum  by 
 the  end  of  their  license  term  access  to  that  spectrum  shall  revert  back  to  Nextel.  56  We  recognize  that  entities  may  wish  to  reconsider  their  ESMR  election  in  light  of  this 
 provision.  For  that  reason  we  have  directed  the  TA  to  open  a  twenty-  day  election  window  to  allow  such  reconsideration.  57 


 28.  Our  decisions,  supra,  strike  an  appropriate  balance  between  our  goal  of  ensuring  equitable  treatment  of  all  licensees  and  our  goal  of  alleviating  unacceptable 
 interference  to  public  safety  licensees.  Requiring  EA  licensees  located  in  the  ESMR  portion  of  the  band  to  construct  ESMR  systems  by  a  time  certain  has  a  threefold 
 purpose:  (1)  it  avoids  replicating,  in  the  ESMR  band,  the  same  incompatible  mix  of  technologies  that  resulted  in  unacceptable  interference  to  public  safety,  CII  and  other 
 "high  site"  licensees;  (2)  it  allows  licensees  genuinely  interested  in  competing  with  existing  ESMR  operators  to  have  the  opportunity  to  move  forward  with  their  business 
 plans;  and  (3)  it  requires  relocating  EA  licensees  to  timely  construct  an  ESMR  system,  thereby  avoiding  the  "  warehousing  "  of  spectrum. 


 C.  Non-  ESMR  Incumbents  Currently  Located  in  the  ESMR  Portion  of  the  Band 
 29.  In  the  Supplemental  Order,  the  Commission  declined  to  permit  non-  ESMR  operation  in  the  ESMR  band  segment.  58  The  Commission  stated  that  allowing  such 


 (Continued  from  previous  page)  Commissions  Rules.  See  47  U.  S.  C.    503(  b)(  1)(  B)  and  47  C.  F.  R.    1.80(  a)(  2).  See  also  Wireless 
 Telecommunications  Bureau  to  Enhance  its  Universal  Licensing  System  to  More  Accurately  Reflect  Termination  of  Unconstructed  Licenses,  Public  Notice,  20  FCC  Rcd  1455  (WTB  2005).  The  certification,  which  must  be 
 signed  by  a  licensee  principal,  must  be  sent  to  the  Chief,  Wireless  Telecommunications  Bureau,  Federal  Communications  Commission,  445  12  th  Street,  S.  W.  Washington,  DC  20554. 


 55  See  47  C.  F.  R.    1.946(  c). 
 56  This  is  similar  to  the  manner  in  which  the  Commission  treated  additional  unencumbered  white  area 
 available  from  non-  ESMR  EA  licensees  relocating  to  the  ESMR  Band.  Specifically,  in  the  Supplemental  Order,  the  Commission  emphasized  that  the  white  area  a  non-  ESMR  EA  licensee  attains  when  it  relocates  to  the  ESMR 


 portion  of  the  band  is  strictly  limited  to  the  boundaries  of  the  white  area  that  existed  before  it  relocated.  Thus  any  additional  unencumbered  area  in  the  EA  which  exists  after  the  non-  ESMR  EA  licensee  is  relocated  will  be 
 available  for  use  by  Nextel.  See  Supplemental  Order,  19  FCC  Rcd  at  25155    79. 
 57  See    8  supra. 


 58  See  Supplemental  Order,  19  FCC  Rcd  25156    81. 
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 operations  would  undercut  the  basic  tenet  of  this  proceeding:  that  incompatible  high-site  non-  ESMR  technology  must  be  segregated  from  low-  site  ESMR  technology  if 
 unacceptable  interference  is  to  be  avoided.  59  Communications  &  Industrial  Electronics,  Inc.  (C&  I)  and  North  Sight  Communications,  Inc.  (North  Sight)  have  filed  a  joint  request 
 for  clarification  of  the  Supplemental  Order  on  the  status  of  incumbents  that  currently  operate  in  the  ESMR  portion  of  the  band  but  are  currently  operating  non-  ESMR 
 systems.  60  C&  I  and  North  Sight  argue  that  the  Commissions  prohibition  on  non-  ESMRs  operating  in  the  ESMR  band  should  apply  only  to  entities  relocating  into  the  ESMR 
 band,  and  not  to  current  incumbents  operating  there.  61 
 30.  We  deny  the  C&  I/  North  Sight  petition  to  the  extent  it  asks  us  to  hold  that  incumbent  high  site  systems  operating  on  the  Upper  200  channels  may  remain  there 


 and  be  protected  against  interference  from  ESMR  systems.  Allowing  such  incumbent  high-  site  systems  to  remain  in  the  band  is  inconsistent  with  the  fundamental 
 interference  abatement  goals  of  this  proceeding,  which  dictate  that  incompatible  technologies  should  not  operate  in  the  same  segment  of  the  800  MHz  band. 
 Accordingly,  we  clarify  that  no  incumbent  licensee  in  the  ESMR  band  may  continue  to  operate  high  site  systems  in  the  ESMR  band.  We  also  clarify  that,  if  such  licensees 
 wish  to  continue  their  high  site  operations,  they  must  relocate  to  comparable  facilities  in  the  non-  ESMR  band  at  Nextel's  expense,  consistent  with  the  terms  of  the  800  MHz 
 R&  O  and  Supplemental  Order. 
 31.  We  note,  however,  that  North  Sight  is  not  required  to  relocate  out  of  the  ESMR  band  under  this  holding.  The  petition  indicates  that  North  Sight  operates  an 


 iDEN  cellular-  architecture  technology  system  on  its  EA  authorizations  in  the  ESMR  band,  coupled  with  site-  based  stations  operating  below  the  ESMR  band.  62  Thus,  under 
 our  clarification  of  the  rules  discussed  in  paragraphs  7-  8,  supra,  North  Sights  system  qualifies  as  a  cellular  system  that  may  operate  in  the  ESMR  band. 


 D.  Prohibition  on  High  Density  Cellular  Systems  in  the  Non-  ESMR  Portion  of  the  800  MHz  Band 
 32.  Coastal  and  SAFE  argue  that  the  initial  800  MHz  NPRM  did  not  provide  adequate  notice  under  Section  553  of  the  Administrative  Procedure  Act  (APA)  63 
 because  the  800  MHz  NPRM  did  not  apprise  SMR  licensees  of  the  impact  on  current 


 59  Id. 
 60  See  Request  for  Clarification  of  Communications  &  Industrial  Electronics,  Inc.  and  North  Sight 
 Communications,  Inc.  filed  May  4,  2005  (C&  I/  North  Sight  Clarification  Request). 
 61  Id.  at  4-  5. 


 62  Id.  at  2-  3. 
 63  5  U.  S.  C.    553. 
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 service  resulting  from  band  reconfiguration,  i.  e.,  that  limits  would  be  imposed  on  the  type  of  system  architecture  that  SMR  licensees  could  employ.  Specifically,  Coastal  and 
 SAFE  allege  that  there  was  not  adequate  notice  that  the  Commission  would  eliminate  licensee  discretion  to  convert  from  high-  site  SMR  operations  to  high-  density 
 configurations.  64  We  disagree  with  their  argument.  The  limitation  on  use  of  high-  density  cellular  operations  was  part  of  the  concept  of  spectral  separation  to  abate  unacceptable 
 interference,  a  concept  that  was  placed  at  issue  in  the  original  Nextel  White  Paper.  65  In  the  800  MHz  NPRM,  in  which  the  Commission  addressed  many  of  the  issues  raised 
 in  the  Nextel  White  Paper,  parties  were  put  on  notice  that  the  imperative  to  abate  unacceptable  interference  to  public  safety  systems  would  likely  result  in  substantial 
 changes  to  the  rules  affecting  the  800  MHz  band.  In  particular,  the  Commission  signaled  that  reconfiguration  of  the  band  into  non-  ESMR  and  ESMR  segments  was  a 
 foreseeable  outcome  of  the  proceeding.  66  The  Commission  also  sought  comment  on  a  restructuring  of  the  800  MHz  band  that  would  have  required  some  incumbent  site-  based 
 licensees  such  as  Coastal  and  SAFE  to  vacate  the  800  MHz  band  entirely  and  relocate  to  the  900  MHz  band  at  their  own  expense.  67  The  Commission  also  raised  the 
 possibility  that  800  MHz  site-  based  incumbents  might  be  required  to  operate  on  a  secondary  basis  to  public  safety  systems.  68 


 33.  Thus,  both  the  broad  scope  of  the  800  MHz  NPRM  and  the  specific  proposals  offered  within  it  made  clear  that  altering  what  Coastal  and  SAFE  claim  are  the  rights  of 
 conventional  SMR  licensees  was  at  issue  and  ripe  for  comment  in  order  to  achieve  the  Commissions  goal  of  resolving  unacceptable  interference  to  public  safety  systems 
 operating  in  the  800  MHz  band.  69  Moreover,  the  Commission  specifically  invited 
 64  See  Coastal  PFR  (of  R&  O)  at  7-  12;  see  also  SAFE/  Coastal  Reply  at  2-  3. 
 65  See  Promoting  Public  Safety  Communications    Realigning  the  800  MHz  Land  Mobile  Radio  Band  to 
 Rectify  Commercial  Mobile  Radio    Public  Safety  Interference  and  Allocate  Additional  Spectrum  to  Meet  Public  Safety  Needs,  filed  by  Nextel  Communications,  Inc.,  on  Nov.  21,  2001  (Nextel  White  Paper). 


 66  See  800  MHz  NPRM,  17  FCC  Rcd  at  4884-  89    20-  28. 
 67  Id.,  17  FCC  Rcd  at  4893-  95    34-  37. 
 68  Id.  17  FCC  Rcd  at  4893    34. 
 69  Federal  courts  have  also  held  that  the  APAs  notice  requirements  are  satisfied  where  the  final  rule  is  a 
 logical  outgrowth  of  the  proposed  rule.  See  1998  Biennial  Regulatory  Review  -  Streamlining  of  Mass  Media  Applications,  Rules,  and  Processes  Policies  and  Rules  Regarding  Minority  and  Female  Ownership  of  Mass  Media 


 Facilities,  Memorandum  Opinion  and  Order,  14  FCC  Rcd.  17525  at  17534  24  citing  Public  Service  Commission  of  the  District  of  Columbia  v.  FCC,  906  F.  2d  713,  717  (D.  C.  Cir.  1990).  A  rule  is  a  logical  outgrowth  of  a  Notice 
 if  [  the  party]  should  have  anticipated  that  such  a  requirement  might  be  imposed.  See  Provision  of  Aeronautical  Services  via  the  Inmarsat  System-  Aeronautical  Radio,  Inc.  and  the  Air  Transport  Association  of  America  Request 
 for  Waiver,  Order  on  Reconsideration  and  Further  Notice  of  Proposed  Rulemaking,  11  FCC  Rcd.  5330  at  5336    14  citing  Small  Refiner  Lead  Phase-  Down  v.  EPA,  705  F.  2d  506,  549  (D.  C.  Cir.  1983).  In  order  to  meet  this 
 standard,  it  has  been  held  that  the  agency's  notice  and  the  public's  comments  must  pass  the  reasonable  specificity  test.  This  standard  can  be  stated  as  whether  a  reasonable  person  would  be  put  on  notice  of  the  final 
 rule.  See  1998  Regulatory  Review,  Order  on  Reconsideration,  15  FCC  Rcd  9707  at  9710    7  citing  Smaller  (continued.) 
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 comment  on  the  Consensus  Parties  proposed  division  of  the  800  MHz  band  into  non-ESMR  and  ESMR  segments.  70  The  Commission  also  sought  further  comment  on  this 
 spectral  separation  proposal  when  the  Consensus  Parties  incorporated  the  proposal  in  a  subsequent  filing.  71 


 34.  In  fact,  the  Commission  received  and  considered  comments  in  support  of  the  Consensus  Parties  band  reconfiguration  proposal  from,  among  others,  Skitronics  a 
 member  of  the  SAFE  Coalition  which  said  it  had  no  problems  with  giving  unqualified  endorsement  to  the  Consensus  Plan  proposal  to  separate  incompatible  technologies  in 
 the  800  MHz  band.  72  This  filing  undercuts  the  SAFE  Coalition  assertion  that  its  members  lacked  adequate  notice  about  the  possibility  that  the  Commission  would  adopt 
 a  band  reconfiguration  proposal.  73 
 35.  In  sum,  we  believe  that  the  extensive  record  of  this  proceeding  reflects  the  fact  that  the  Commission  carefully  ensured  that  parties  were  made  aware  of  the 


 possible  outcomes  of  the  proceeding  as  it  progressed.  We  also  note  that  the  SAFE  Coalitions  and  Coastals  claims  of  inadequate  notice  notwithstanding  other 
 conventional  SMR  licensees  recognized,  and  commented  upon,  the  possibility  that  cellular  architecture  would  not  be  allowed  to  coexist  with  public  safetys  high  site 


 (Continued  from  previous  page)  Refiner  Lead  Phase-  Down  v.  EPA,  705  F.  2d  at  549;  LaMadrid  v.  Hegstrom,  830  F.  2d  1524,  1530-  31  (9th  Cir. 
 1987);  and  The  Logical  Outgrowth  Doctrine  in  Rulemaking,  Phillip  M.  Kannan,  48  Admin.  L.  Rev.  Spring  1996,  at  213. 


 70  The  Consensus  Parties  were  comprised  of  Nextel,  the  major  public  safety  organizations,  and  various 
 private  wireless  organizations.  See  800  MHz  R&  O,  19  FCC  Rcd  at  14974  n.  13.  They  first  submitted  the  Consensus  Plan  on  August  7,  2002,  during  the  reply  comment  cycle  of  this  rule  making  proceeding.  The 


 Wireless  Bureau  then  sought  comment  on  the  Consensus  Plan.  See  Wireless  Telecommunications  Bureau  Seeks  Comment  on  Consensus  Plan  Filed  in  the  800  MHz  Public  Safety  Interference  Proceeding,  Public  Notice,  17 
 FCC  Rcd  16755  (WTB  2002). 
 71  On  December  24,  2002,  the  Consensus  Parties  filed  Supplemental  Comments.  Thereafter,  the 
 Commission  sought  comment  on  these  Supplemental  Comments.  See  Wireless  Telecommunications  Bureau  Seeks  Comment  on  Supplemental  Comments  of  the  Consensus  Parties  Filed  in  the  800  MHz  Public  Safety 


 Interference  Proceeding,  WT  Docket  No.  02-  55,  Public  Notice,  18  FCC  Rcd  30  (WTB  2003).  This  Public  Notice  was  also  published  in  the  Federal  Register.  See  68  FR  6687  (Feb.  10,  2003). 


 72  See  Comments  of  Skitronics,  LLC,  filed  Feb.  25,  2003.  The  record  also  demonstrates  that  other 
 conventional  SMR  licensees  participated  in  this  round  of  comments.  See,  e.  g.,  Comments  of  Silver  Palm  filed  April  8,  2004. 


 73  Even  after  the  Commission  adopted  the  800  MHz  R&  O,  it  released  a  Public  Notice  seeking  comment 
 on  ex  parte  requests  for  clarification  of  the  800  MHz  R&  O,  including  the  conditions  under  which  non-  ESMR  systems  could  be  retuned  to  the  ESMR  band.  See  Commission  Seeks  Comment  on  Ex  Parte  Presentations  and 


 Extends  Certain  Deadlines  Regarding  the  800  MHz  Public  Safety  Interference  Proceeding,  WT  Docket  No.  02-  55,  Public  Notice,  19  FCC  Rcd  21492  (2004).  This  Public  Notice  was  subsequently  published  in  the  Federal  Register. 
 See  69  FR  67880  (2004).  In  response  the  Commission  received  and  considered  separately  filed  comments  from  SAFE  coalition  members  Coastal  and  Skitronics.  See  Comments  of  Coastal  SMR  Network,  L.  L.  C.,  filed  Dec.  2, 
 2004;  Comments  of  Mobile  Relay  Associates  and  Skitronics,  LLC,  filed  Dec.  2,  2004. 
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 architecture  in  the  same  portion  of  the  800  MHz  band.  74  Accordingly,  we  conclude  that  the  Commission  properly  discharged  its  duty  to  let  all  interested  parties  know  the 
 possible  outcomes  of  this  proceeding,  and  we  find  no  merit  in  the  SAFE  Coalitions  and  Coastals  claims  to  the  contrary. 


 E.  Comparable  Facilities 
 36.  In  the  800  MHz  R&  O,  the  Commission  declared  that  relocating  licensees 
 would  be  entitled  to  comparable  facilities.  75  However,  the  SAFE  Coalition  and  Coastal  argue  that  comparable  facilities  should  mean  more  than  comparable  equipment,  it 


 should  guarantee  post-  reconfiguration  replication  of  a  licensees  service  area  and  spectrum  capacity.  76  They  contend  that  in  order  to  achieve  service  area  replication,  we 
 must,  prior  to  assigning  replacement  frequencies,  undertake  a  technical  study,  analogous  to  the  study  the  Commission  conducted  in  establishing  the  Digital  Television 
 (DTV)  Table  of  Allotments,  and  adopt  a  similar  table  for  the  800  MHz  land  mobile  band.  77 


 37.  The  800  MHz  R&  O  did  not  say  that  the  comparable  facilities  requirement 
 was  satisfied  merely  by  providing  the  relocating  licensee  with  comparable  equipment.  The  800  MHz  R&  O  stated  that: 


 Comparable  facilities  are  those  that  will  provide  the  same  level  of  service  as  the  incumbents  existing  facilities,  with  transition  to  the  new  facilities  as  transparent 
 as  possible  to  the  end  user.  Specifically,  (1)  equivalent  channel  capacity;  (2)  equivalent  signaling  capability,  baud  rate  and  access  time;  (3)  coextensive 
 geographic  coverage;  and  (4)  operating  costs.  78 
 38.  Petitioners  have  failed  to  present  facts  that  convince  us  that  the  comparable  facilities  standard,  which  has  been  successfully  used  in  prior  band  reconfiguration 


 efforts,  79  is  somehow  inappropriate  here.  Use  of  the  comparable  facilities  standard  in 
 74  For  example,  the  American  Mobile  Telecommunications  Association,  a  signatory  to  the  Consensus 
 Plan  which  also  represents  the  interests  of  trunked  and  conventional  SMR  operators  in  the  800  MHz  band,  urged  the  Commission  to  adopt  the  Consensus  Plan  to  alleviate  interference  to  public  safety  but  also  recommended  that 


 the  Commission  ensure  that  entities  interested  in  deploying  cellular  technology  are  treated  equitably.  See  American  Mobile  Telecommunications  Association  Comments  at  5,  filed  Sep.  23,  2002.  See  also  Mobile  Relay 
 Associates  Supplemental  Comments  at  19,  filed  Feb.  10,  2003  (opposing  proposed  restriction  on  conventional  SMRs  converting  to  cellular  technology). 


 75  See  800  MHz  R&  O,  19  FCC  Rcd  at  15076-  77    201. 
 76  See  Coastal  PFR  (of  R&  O)  at  3-  4;  see  also  SAFE/  Coastal  Reply  at  4-  5. 
 77  Id. 
 78  See  800  MHz  R&  O,  19  FCC  Rcd  at  15076-  77    201. 
 79  The  comparable  facilities  standard  was  applied  to  a  previous  reconfiguration  of  the  800  MHz  band 
 when  Nextel  relocated  incumbents  from  the  Upper  200  channels.  See  Amendment  of  Part  90  of  the  Commission's  (continued.) 
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 connection  with  800  MHz  band  reconfiguration  has  been  endorsed  by  public  safety,  CII  and  private  radio  interests,  and  by  Nextel,  in  the  Consensus  Parties  Proposal.  80  The 
 Commission  had  an  extensive  record  before  it  when  it  applied  the  comparable  facilities  standard  to  800  MHz  band  reconfiguration,  and  the  standard  has  been  judicially 
 approved  in  connection  with  relocation  of  incumbents  in  other  contexts.  81  Accordingly,  we  find  that  the  Commission  did  not  act  arbitrarily  or  capriciously  when  it  decided  that 
 the  comparable  facilities  standard  should  apply  when  incumbents  are  relocated  within  the  800  MHz  band. 


 39.  While  we  do  not  preclude  the  possibility  that  an  engineering  analysis  may  be  appropriate  in  determining  what  constitutes  comparable  facilities  in  a  specific  case,  we 
 are  also  not  persuaded  by  petitioners  contention  that  the  Commission  must  first  conduct  a  market-  by-  market  analysis  and  derive  a  Table  of  Allotments  for  the  800  MHz 
 band  before  the  TA  can  assign  replacement  frequencies.  82  Petitioners  have  not  identified  any  deficiencies  in  the  long-  standing  licensing  process  for  800  MHz  land 
 mobile  facilities  that  would  merit  changing  to  a  Table  of  Allotments  licensing  scheme,  and  we  are  unable  to  see  how  the  cost  and  delay  inherent  in  making  such  a 
 fundamental  licensing  change  in  this  case  could  be  justified.  We  note  that  the  800  MHz  land  mobile  band  has  a  far  greater  number  of  facilities  and  channels  than  the  television 
 band,  a  factor  that  would  make  a  Table  of  Allotments  far  more  costly  to  implement.  83  Moreover,  compared  to  the  television  band,  where  the  channel  assignments  are 
 relatively  static,  the  800  MHz  land  mobile  band  is  highly  dynamic,  with  large  numbers  of  applications  for  new  licenses  and  modifications  of  existing  licenses  filed  each  day. 


 (Continued  from  previous  page)  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in  the  800  MHz  Frequency  Band,  PR  Docket  93-  144, 
 Second  Report  and  Order,  12  FCC  Rcd  19079  (1997)  (establishing  a  standard  for  comparable  facilities  based  on  (1)  a  comparable  system;  (2)  equivalent  channel  capacity;  (2)  same  quality  of  service;  and  (3)  comparable 
 operating  costs).  The  standard  was  also  applied  in  other  contexts,  e.  g.  when  fixed  microwave  systems  were  relocated  to  make  way  for  Personal  Communications  Service  (PCS)  systems.  See  Amendment  to  the 
 Commissions  Rules  Regarding  a  Plan  for  Sharing  the  Costs  of  Microwave  Relocation,  WT  Docket  95-  157,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  11  FCC  Rcd  8825  (1996)  (establishing  a  standard 
 for  comparable  facilities  based  on  throughput,  system  reliability,  and  operating  costs). 
 80  See  Supplemental  Comments  of  the  Consensus  Parties,  ex  parte  filing  dated  Dec.  24,  2002). 


 81  See,  e.  g.,  Teledesic,  LLC  v.  FCC,  275  F.  3d  75,  85-  86  (D.  C.  Cir.  2001);  Small  Bus.  in  Telecomms.  v. 
 FCC,  251  F.  3d  1015,  1017,  1026  (D.  C.  Cir.  2001)  (denying  in  part  and  dismissing  in  part  petition  for  review  of  relocation  regime  in  which  displaced  incumbents  would  be  given  comparable  facilities  to  ensure  a  seamless 


 transition);  Association  of  Public  Safety  Communications  Officials-  International,  Inc.,  v.  FCC,  76  F.  3d  395,  399  (D.  C.  Cir.  1996)  (upholding  the  elimination  of  an  exemption  for  public  safety  incumbents  from  a  relocation 
 regime  in  which  emerging  technology  licensees  would  pay  all  costs  associated  with  relocating  incumbents  to  comparable  facilities). 


 82  See  Coastal  PFR  (of  R&  O)  at  4. 
 83  For  example,  a  search  of  the  Universal  Licensing  System  database  shows  that  over  8100  800  MHz 
 applications  were  filed  during  the  six  months  prior  to  the  adoption  of  the  800  MHz  R&  O  (January  1,  2004-  July  1,  2004). 
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 Thus,  any  Table  of  Allotments  for  the  band  would  require  continuous  modification  to  track  licensing  activity  in  the  band,  at  a  considerable  and  continuing  cost.  84 
 40.  We  also  believe  that  petitioners  apparent  primary  concern,  that  incumbent  relocating  licensees  would  not  receive  replication  of  their  previous  service  areas,  has 
 adequately  been  addressed  by  the  safeguards  provided  for  incumbents  in  the  800  MHz  R&  O.  First,  a  relocating  incumbent  may  conduct  an  independent  technical  study  to 
 verify  that  a  replacement  channel  is  comparable  to  its  former  channel.  85  Second,  if  a  dispute  arises  concerning  the  comparability  of  a  new  channel,  the  licensee  has  recourse 
 to  the  TA  and  alternative  dispute  resolution  to  settle  the  matter.  86  Third,  if  an  incumbent  licensee  believes  that,  despite  these  protections,  it  is  not  being  provided  with 
 comparable  facilities,  it  may  seek  de  novo  review  from  the  Commission.  87  These  protections  afforded  relocating  incumbents  in  the  800  MHz  R&  O  makes  us  confident 
 that  incumbents  will  be  fairly  treated.  Accordingly,  we  are  denying  the  SAFE  Coalition  and  Coastal  petitions  for  reconsideration  to  the  extent  petitioners  seek  revision  of  that 
 portion  of  the  800  MHz  R&  O  that  deals  with  the  right  of  relocating  incumbents  to  receive  comparable  facilities. 


 F.  Frequency  Coordination 
 41.  In  the  Supplemental  Order,  the  Commission  held  that  evidence  of  frequency  coordination,  normally  required  for  license  modification  applications  in  the  800  MHz 


 band,  is  not  necessary  or  required  for  modification  applications  filed  to  implement  band  reconfiguration.  88  Several  parties  seek  reconsideration  of  that  determination, 
 contending  that  frequency  coordination  is  essential  here  because  it  provides  individual  licensees  an  additional  layer  of  protection  against  diminished  communications.  89 


 84  Indeed,  were  the  television  Table  of  Allotments  model  followed,  every  800  MHz  licensee  desiring  to 
 change  its  assignment  would  have  to  file  a  petition  for  rule  making  and  the  Commission  would  have  to  initiate  a  comment  cycle  and  prepare  and  issue  an  order,  which  then  would  be  subject  to  petitions  for  reconsideration, 


 applications  for  review  and  judicial  appeal.  The  burden  on  licensees  and  the  Commission,  alike,  would  be  substantial  and  to  no  advantageous  purpose.  Cf.  47  C.  F.  R.    1.401-  1.407. 


 85  See  800  MHz  R&  O,  19  FCC  Rcd  at  15075-  77    201.  The  TA  must  adhere  to  the  Commissions 
 minimum  seventy  mile  co-  channel  spacing  requirements,  except  when  the  applicable  technical  parameters  permit  a  reduced  spacing  of  up  to  fifty-  five  miles,  or  less  than  fifty-  five  miles  with  the  consent  of  the  co-  channel 


 licensees.  As  with  the  rules  for  applications  for  new  licenses,  the  TA  need  not  consider  adjacent  channel  stations  when  specifying  a  replacement  channel.  See  47  C.  F.  R.    90.621(  b). 


 86  See  800  MHz  R&  O,  19  FCC  Rcd  at  15071-  72    194. 
 87  Id. 
 88  See  Supplemental  Order,  19  FCC  Rcd  at  25146    60,  25148    65-  66.  Frequency  coordination, 
 however,  is  required  for  modification  applications  requesting  major  modifications  other  than  adding  frequencies  specified  by  the  TA  to  implement  band  reconfiguration.  See  id.  19  FCC  Rcd  25146  at  n.  132. 


 89  See  Petition  for  Partial  Reconsideration  of  Supplemental  Order  and  Order  on  Reconsideration,  filed  by 
 the  Association  of  Public-  Safety  Communications  Officials  International,  Inc.,  International  Association  of  Chiefs  (continued.) 
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 These  petitioners  also  argue  that  the  frequency  coordinators  have  efficient  application  processing  systems  that  can  help  speed  the  rebanding  process.  90 
 42.  As  an  initial  matter,  we  generally  agree  with  these  parties  characterization  of  the  benefits  of  frequency  coordination,  and  we  emphasize  that  the  Commission 
 anticipated  that  frequency  coordinators  could  play  an  important  role  in  800  MHz  band  reconfiguration.  Thus,  the  Commission  did  not  prohibit  frequency  coordinators  from 
 participation  in  the  rebanding  process,  and  the  TA  is  free  to  use  a  third  party  or  parties,  including  Part  90  frequency  coordinators,  to  determine  the  most  appropriate 
 replacement  channels.  91  Also,  licensees  are  free  to  use  the  services  of  frequency  coordinators  or  other  entities  to  file  applications  on  their  behalf.  92  However,  we  do  not 
 believe  that  frequency  coordination  is  a  necessity,  particularly  in  the  case  of  the  National  Public  Safety  Planning  Advisory  Committee  (NPSPAC)  channels  where  all 
 NPSPAC  licensees  are  being  relocated  to  channels  fifteen  megahertz  below  their  current  operating  channels,  thus  exactly  preserving  the  coverage/  interference 
 environment  in  the  old  and  new  NPSPAC  bands.  93  In  that  case,  we  believe  that  requiring  frequency  coordination  would  be  unnecessary  and  might  delay  band 
 reconfiguration.  Additionally,  we  expect  that  the  TA  will  make  replacement  channel  assignments  in  a  manner  that  assures  comparable  facilities  and  could  utilize  the 
 services  of  frequency  coordinators  if  it  desired.  94  If  a  licensee  is  dissatisfied  with  its  channel  assignment  and  contests  the  TAs  comparable  facilities  determination,  it  can 
 enlist  the  services  of  a  frequency  coordinator  to  assist  it  in  reviewing  the  TAs  determination  or  seek  de  novo  review  from  the  Commission.  We  therefore  decline  to 
 mandate  frequency  coordination  for  all  relocation  applications. 
 G.  Expansion  Band  Issues 
 43.  The  Commission  designated  the  815-  816  MHz/  860-  861  MHz  segment  of  the  800  MHz  band  as  an  Expansion  Band  intended  to  provide  public  safety  licensees 


 spectral  separation  from  the  ESMR  band  segment.  Although  the  Commission  provided  Expansion  Band  licensees  full  protection  against  unacceptable  interference,  public 
 safety  licensees  currently  located  in  the  Expansion  Band  have  the  option  to  relocate 
 (Continued  from  previous  page)  of  Police,  International  Association  of  Fire  Chiefs,  International  Municipal  Signal  Association,  Inc.,  Major  Cities 


 Chiefs  Association,  Major  County  Sheriffs  Association,  and  National  Sheriffs  Association,  filed  Feb.  1,  2005  (APCO  PFR  (of  Supplemental  Order))  at  4. 


 90  Id.  at  2. 
 91  See  800  MHz  R&  O,  19  FCC  Rcd  at  15071  n.  517A. 
 92  Id.,  19  FCC  Rcd  at  15075  n.  520. 
 93  See  Supplemental  Order,  19  FCC  Rcd  at  25148    65.  The  NPSPAC  channels  are  six  megahertz  of 
 spectrum  designated  for  exclusive  public  safety  use.  See  800  MHz  R&  O,  19  FCC  Rcd  at  14991    37. 
 94  See  id.,  19  FCC  Rcd  at  25146    60. 
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 below  the  Expansion  Band,  at  Nextels  expense,  and  no  public  safety  licensee  will  be  forced  to  relocate  into  or  remain  in  the  Expansion  Band.  95  The  Commission  did  not 
 extend  either  relocation  option  to  CII  licensees,  however. 
 1.  Critical  Infrastructure  Industry  (CII)  Relocation 
 44.  Entergy  argues  that  CII  entities  should  be  allowed  to  relocate  their  facilities  out  of  the  Expansion  Band  on  the  same  basis  as  public  safety  licensees  and  that  they 


 should  have  the  same  rights  as  public  safety  licensees  not  to  be  relocated  into  the  Expansion  Band.  It  argues  that  the  Commission  intended  the  Expansion  Band  to  be 
 used  as  a  haven  for  licensees  that  employ  campus-  type    or  similar  interference-resistant  systems  and  that  the  majority  of  CII  licensees  do  not  employ  campus-  type 
 systems.  96  Although  the  Commission  stated  in  the  800  MHz  R&  O  that  certain  licensees  might  wish  to  activate  campus-  type  systems  in  the  Expansion  Band,  97  it  did  not  limit  the 
 use  of  the  band  to  campus-  type  systems  or  suggest  that  the  band  was  unsuitable  for  non  campus-  type  operations. 


 45.  We  do  not  agree  with  the  argument  that,  because  CII  communications  may,  on  occasion,  relate  to  the  safety  of  life  and  property,  CII  licensees  should  have  the 
 identical  rights  in  the  Expansion  Band  as  public  safety  licensees.  98  Because  CII  licensees  in  the  Expansion  Band  receive  full  protection  against  unacceptable 
 interference  after  band  reconfiguration,  99  and  because  the  realities  of  band  reconfiguration  are  such  that  we  cannot  guarantee  both  public  safety  and  CII  equivalent 
 spectral  separation  from  the  ESMR  band  without  comprising  band  reconfiguration,  we  decline  to  alter  the  parameters  of  the  Expansion  Band  as  they  apply  to  CII  licensees. 
 We  note  that  our  decision  in  this  regard  is  consistent  with  our  decision  in  the  spectrum  refarming  proceeding  to  afford  public  safety  and  CII  licensees  certain  protections 
 relative  to  frequency  coordination,  but  not  to  place  them  under  identical  frequency  coordination  regimes.  100  There,  as  here,  we  concluded  that  differential  treatment  of 


 95  See  800  MHz  R&  O,  19  FCC  Rcd  at  15053    154. 
 96  See  Petition  for  Reconsideration  of  Entergy  Corporation  and  Entergy  Services,  Inc.  (Entergy),  filed 
 Dec.  22,  2004  (Entergy  PFR  (of  R&  O))  at  5-  6  citing  800  MHz  R&  O,  19  FCC  Rcd  at  15053    154. 
 97  See  800  MHz  R&  O,  19  FCC  Rcd  at  15053    154. 


 98  See  Entergy  PFR  (of  R&  O)  at  5. 
 99  The  full  protection  is  afforded  after  band  reconfiguration  is  completed  in  a  given  NPSPAC  region;  in 
 the  interim,  such  licensees  are  provided  a  lesser  level  of  protection.  See    50,  infra. 
 100  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  Assignments  Policies  of  the  Private  Land  Mobile  Services,  PR  Docket  92-  235,  Second  Report  and  Order,  12  FCC  Rcd  14307  at  14327-  29    37-  41 


 (1997). 
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 public  safety  and  CII  was  appropriate  because  CII  licensees  communications  are  not  primarily  related  to  the  safety  of  life  and  property.  101  Thus,  we  deny  the  Entergy  petition. 
 2.  Expansion  Band  in  Atlanta 
 46.  In  the  800  MHz  R&  O,  the  Commission  found  that  the  ESMR  band  segment  boundaries  adopted  for  most  of  the  United  States  are  too  restrictive  to  accommodate 


 both  SouthernLINC  and  Nextel  in  the  area  of  the  southeastern  United  States  in  which  SouthernLINC  operates,  because  an  inadequate  number  of  channels  exist  in  the  816- 
 824/  861-  869  MHz  band  segment  to  replicate  both  companies  existing  channel  capacity.  102  Accordingly,  the  Commission  expanded  the  ESMR  band  segment  in  the 
 southeastern  United  States  to  the  813.5-  824  MHz/  858.5-  869  MHz  segment.  103  As  a  result,  there  is  no  Guard  Band  in  this  area  and  the  Expansion  Band  encompasses 
 812.5-  813.5  MHz/  857.5-  858.5  MHz.  104 
 47.  In  its  petition  for  reconsideration,  SouthernLINC  asks  us  to  eliminate  the  Expansion  Band  within  a  seventy  mile  radius  of  Atlanta,  Georgia,  or,  alternatively,  to 


 reduce  the  Expansion  Band  in  Atlanta  to  one-  half  megahertz  at  813-  813.5  MHz/  858-  858.5  MHz.  105  In  support  of  its  petition,  SouthernLINC  offers  evidence  that  in  the  Atlanta 
 area,  it  will  be  impossible  to  relocate  public  safety  licensees  currently  operating  in  the  Expansion  Band  to  channels  vacated  by  B/  ILT  licensees  moving  into  the  Expansion 
 Band  because  there  are  too  few  B/  ILT  licensees  in  the  interleaved  spectrum.  106  SouthernLINC  contends  that  either  proposal  will  accommodate  all  incumbents,  but 
 notes  that  under  its  alternative  proposal,  all  non-  public  safety  incumbents  operating  in  the  interleaved  portion  of  the  band  will  have  to  accept  relocation  to  the  Expansion 
 Band.  107 


 101  Id. 
 102  See  800  MHz  R&  O,  19  FCC  Rcd  at  15057    164. 
 103  Id. 
 104  Id.,  19  FCC  Rcd  at  15058    166. 
 105  See  Petition  for  Reconsideration  of  Southern  Communications  Services,  Inc.  d/  b/  a/  SouthernLINC 
 filed  December  22,  2004  (SouthernLINC  PFR  (of  R&  O))  at  3.  See  also  Comments  on  Petitions  for  Reconsideration  of  Southern  Communications  Services,  Inc.  d/  b/  a/  SouthernLINC  filed  April  21,  2005 


 (SouthernLINC  Comments  on  PFR)  at  3. 
 106  See  generally  SouthernLINC  PFR  (of  R&  O).  Public  safety  systems  represent  over  eighty-  five 
 percent  of  all  incumbent  systems  that  must  be  relocated  in  the  Atlanta  area.  Thus  a  one-  for-  one  channel  swap  that  moves  public  safety  incumbents  out  of  the  Expansion  Band  and  non-  public  safety  incumbents  into  the 


 Expansion  Band  is  not  possible.  Id.  at  4.  See  also  SouthernLINC  Comments  on  PFR  at  3. 
 107  Id.  at  4-  5. 
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 48.  SouthernLINC  has  not  persuaded  us  that  we  should  eliminate  the  Expansion  Band  altogether.  We  have  studied  the  incumbency  situation  in  Atlanta,  however,  and 
 find  it  sufficiently  different  from  the  rest  of  the  United  States  to  merit  reducing  the  Expansion  Band  to  one-  half  megahertz  within  a  seventy  mile  radius  of  Atlanta.  We 
 believe  that  retaining  a  portion  of  the  Expansion  Band  is  important  to  afford  public  safety  some  spectral  separation  from  the  ESMR  portion  of  the  band,  which  is  particularly 
 important  because  of  the  lack  of  a  Guard  Band  in  the  Atlanta  region.  108  We  believe  that  careful  choice  of  the  location  of  public  safety  channels  in  the  band  may  mitigate 
 interference  problems.  We  therefore  direct  the  TA  to  survey  public  safety  licensees  in  the  affected  area  and  to  ascertain  which  systems,  and  which  channels  within  those 
 systems,  are  used  primarily  to  carry  mission-  critical  communications,  as  opposed  to  administrative  traffic.  Based  on  the  information  obtained,  the  TA  shall  endeavor  to 
 relocate  the  channels  carrying  mission-  critical  communications  as  far  as  feasible  below  the  Expansion  Band.  Accordingly,  we  update  Section  90.617  to  reflect  the  distribution 
 of  channels  between  the  various  pool  categories  in  the  SouthernLINC/  Nextel  counties.  109 
 49.  We  realize  that  under  this  band  plan,  some  Atlanta-  based  B/  ILT  incumbents  that  would  otherwise  not  be  required  to  change  frequencies  will  be  required  to  relocate 


 to  the  Expansion  Band.  We  believe  this  is  a  necessary  concession  for  maintaining  adequate  protection  of  public  safety  systems  against  unacceptable  interference  and  that 
 it  will  not  unduly  disadvantage  B/  ILT  licensees  because  the  rules  guarantee  all  stations  in  the  Expansion  Band  full  protection  against  unacceptable  interference.  110 


 H.  Operational  Issues 
 1.  Interim  Interference  Values 
 50.  In  the  800  MHz  R&  O,  the  Commission  adopted  minimum  signal  strength  threshold  values  (-  101  dBm  (portable)  and  -104  dBm  (mobile))  that  non-  cellular  systems 


 must  maintain  to  qualify  for  full  interference  protection.  111  The  Commission  further  provided  that  if  a  non-  cellular  800  MHz  licensee  encounters  a  degradation  of  carrier  to 
 noise  ratio  below  20  db  in  areas  in  which  its  received  power  level  is  at  or  above  the  relevant  threshold  value,  the  source  or  sources  of  the  interfering  signal  are  jointly  and 
 severally  responsible  for  abating  the  interference.  112  In  the  Supplemental  Order,  the 
 108  See  800  MHz  R&  O,  19  FCC  Rcd  at  15058    166.  No  Guard  Band  was  included  in  the  band  plan  for 
 the  SouthernLINC  markets.  Id. 
 109  See    90.617  (as  amended  in  Appendix  B  infra).  We  also  note  that  when  the  Commission  updated  its 
 rules  to  reflect  the  reconfigured  band  plan  in  the  800  MHz  band  it  inadvertently  omitted  the  mutual  aid  channels  from    90.617(  a).  Therefore,  we  insert  a  reference  to  the  mutual  aid  channels  into    90.617(  a)(  1)  and  note  their 


 new  channel  numbers  based  on  the  reconfigured  band  plan. 
 110  47  C.  F.  R.    90.672,  90.673,  90.674. 


 111  See  800  MHz  R&  O,  19  FCC  Rcd  at  15030    106. 
 112  See  47  C.  F.  R.    90.673. 
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 Commission  modified  this  interference  standard  on  an  interim  basis  in  response  to  a  showing  by  Nextel  that  imposing  the  final  standard  prior  to  the  completion  of  band 
 reconfiguration  would  result  in  a  material  restriction  in  the  service  afforded  to  subscribers.  113  Accordingly,  the  Commission  established  an  interim  standard  whereby 
 non-  cellular  systems  must  achieve  signal  strength  threshold  levels  of  -85  dBm  (portable)  or  -88  dBm  (mobile)  in  order  to  be  entitled  to  full  interference  protection.  The 
 Commission  provided  that  this  interim  standard  would  apply  in  each  NPSPAC  region  until  completion  of  band  reconfiguration  in  that  region,  whereupon  the  more  stringent 
 threshold  levels  would  take  effect.  114 
 51.  The  Tri-  State  Radio  Planning  Committee  (Tri-  State)  urges  us  to  apply  the  final  rather  than  the  interim  standard  to  stations  that  will  continue  operating  in  the  original 


 NPSPAC  band  (821-  824  MHz/  866-  869  MHz)  while  band  reconfiguration  is  completed  in  a  given  region.  Tri-  State  asserts  that  the  NPSPAC  channels  will  not  encounter  undue 
 amounts  of  interference  because  they  are  not  interleaved  with  channels  used  by  licensees  employing  cellular-  architecture  systems.  115  Tri-  State  submits  drive-  test  data 
 purporting  to  show  that  application  of  the  interim  standard  to  its  system  would  reduce  the  area  where  Tri-  State  is  eligible  for  full  interference  protection  from  ninety-  three 
 percent  (under  the  final  standard)  to  sixty-  six  percent  of  its  service  area  (under  the  interim  standard).  116 


 52.  We  continue  to  believe  that  applying  the  interim  standard  in  the  original  NPSPAC  band  during  band  reconfiguration  appropriate.  Although,  as  Tri-  State  points 
 out,  the  original  NPSPAC  block  is  not  interleaved  with  channels  used  by  cellular  architecture  systems,  there  are  Part  22  Cellular  Radiotelephone  systems  and  ESMR 
 systems  operating  on  adjacent  channels  above  and  below  the  NPSPAC  block  whose  ability  to  adequately  serve  their  subscribers  could  be  affected  during  band 
 reconfiguration  if  the  final  interference  standard,  as  opposed  to  the  interim  standard,  were  implemented  immediately.  117  Moreover,  pursuant  to  provisions  contained  in  the 
 Supplemental  Order,  Tri-  States  public  safety  system  is  entitled  to  protection  from  unacceptable  interference  in  areas  where  its  system  does  not  meet  the  interim  signal 
 strength  threshold  but  does  meet  the  final  signal  strength  threshold  values  adopted  in 
 113  See  Supplemental  Order,  19  FCC  Rcd  at  25137    38  citing  Letter,  dated  Sep.  28,  2004,  from 
 Lawrence  R.  Krevor,  Vice-  President  Government  Affairs,  Nextel,  to  Marlene  H.  Dortch,  Secretary,  FCC  at  1-  5. 
 114  See  Supplemental  Order,  19  FCC  Rcd  at  25137-  38    39.  We  note  that  the  interim  levels  were 
 supported  by  several  commercial,  private  and  public  safety  members  of  the  800  MHz  community.  Id. 
 115  See  Letter,  dated  Jan.  20,  2005,  from  Peter  Meade,  Chairman,  Region  8  to  Marlene  Dortch,  Secretary, 
 Federal  Communications  Commission  (Tri-  State  PFR  (of  Supplemental  Order)).  See  also  Letter,  dated  Apr.  28,  2005,  from  Peter  Meade,  Chairman,  Region  8  to  Marlene  Dortch,  Secretary,  Federal  Communications 


 Commission  (Tri-  State  Reply). 
 116  See  Attachment  to  Tri-  State  PFR  (of  Supplemental  Order). 


 117  See  800  MHz  R&  O,  19  FCC  Rcd  at  15023-  24    91. 
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 the  800  MHz  R&  O.  118  These  provisions  require  CMRS  carriers  to  mitigate  unacceptable  interference  on  public  safety  control  channels  and  exercise  best  efforts  to  mitigate 
 CMRS/  public  safety  interference  on  public  safety  voice  channels.  119  Finally,  we  note  that,  since  Tri-  State  is  located  in  Wave  1  of  the  band  reconfiguration  schedule,  it  is  in 
 one  of  the  first  NPSPAC  regions  to  complete  band  reconfiguration  and  therefore,  will  be  subject  to  a  rapid  transition  from  the  interim  standards  to  the  final  standards  established 
 in  the  800  MHz  R&  O.  120  We  therefore  deny  Tri-  States  request  to  make  the  interim  standards  inapplicable  to  stations  operating  in  the  current  NPSPAC  block. 


 53.  The  American  Petroleum  Institute  and  the  United  Telecom  Council  (API/  UTC)  ask  that  we  extend  to  all  PLMR  licensees,  or,  in  the  alternative,  only  to  CII  licensees, 
 the  protections  that  the  Commission  provided  to  public  safety  systems  that  do  not  meet  the  -85  dBm  (portable)  or  -88  dBm  (mobile)  interim  threshold  values  but  do  meet  the 
 minimum  threshold  values  adopted  in  the  800  MHz  R&  O.  121  Citing  budgetary  constraints  and  unwieldy  budget  processes,  API  and  UTC  argue  that  non-  public  safety 
 PLMR  licensees  should  not  have  to  implement  costly  system  upgrades  merely  to  be  eligible  for  transitional  interference  protection  under  the  interim  standards.  122  After 
 carefully  considering  APIs  and  UTCs  contentions,  we  continue  to  find  that  the  balance  struck  by  the  Commission  in  the  Supplemental  Order  should  be  retained.  Relative  to 
 public  safety  entities,  CII  entities  have  greater  financial  resources  and  budgetary  latitude  to  address  temporary  interference  issues  that  may  not  be  fully  addressed  by  the  interim 
 standard  used  during  rebanding.  Therefore,  we  reaffirm  that  only  facilities  directly  used  for  police,  fire,  emergency  medical  services,  and  other  governmental  uses  involving 
 safety  of  life  and  property  will  be  afforded  additional  interference  protection  even  if  they  do  not  meet  the  interim  threshold  values. 


 54.  For  similar  reasons,  we  decline  to  adopt  Entergys  proposal  that  we  provide  CII  entities  with  an  interference  safety  valve  analogous  to  what  the  Commission 
 established  for  public  safety  entities.  123  The  Commission  adopted  the  safety  valve  to  address  the  infrequent  but  highly  critical  circumstance  in  which  a  qualified  governmental 
 official  charged  with  protection  of  safety  of  life  and  property  perceives  that  interference 
 118  Id.,  19  FCC  Rcd  25139-  40    42. 
 119  Id. 
 120  See  Regional  Prioritization  Plan  of  the  800  MHz  Transition  Administrator  at  23-  24  (Jan.  31,  2005). 
 The  Commission  charged  the  TA  with  developing  a  relocation  schedule  on  a  NPSPAC  region-  by-  region  basis,  prioritizing  the  regions  on  the  basis  of  population  and  interference.  See  also  800  MHz  R&  O,  19  FCC  Rcd  15072   


 195. 
 121  See  Petition  for  Reconsideration  of  the  American  Petroleum  Institute  and  the  United  Telecom  Council, 
 filed  Mar.  10,  2005  (API/  UTC  PFR  (of  Supplemental  Order))  at  3-  9. 
 122  Id. 


 123  See  Entergy  PFR  (of  R&  O)  at  5-  7. 
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 poses  an  imminent  threat  to  life  or  property.  124  Under  such  extraordinary  circumstances,  the  800  MHz  R&  O  provides  that  a  CMRS  provider  may  be  required  to  immediately 
 discontinue  operation  of  any  suspected  interference  source.  Given  the  extraordinary  nature  of  this  remedy  and  the  potential  impact  it  may  have  on  CMRS  providers,  we 
 believe  it  is  appropriate  to  limit  its  use  to  public  safety  officials,  whose  primary  charge  is  the  protection  of  life  and  property.  We  therefore  deny  the  API/  UTC  petition  for 
 reconsideration. 
 55.  On  a  related  matter,  we  deny  CTIAs  petition  to  relieve  cellular  and  ESMR  carriers  of  the  obligation  to  investigate  interference  complaints  or  take  corrective  action 


 if  complaining  licensees  fail  to  cooperate.  125  In  the  800  MHz  R&  O,  the  Commission  stated  that  all  parties  involved  in  an  interference  incident,  including  public  safety  and  CII 
 licensees,  are  under  an  affirmative  duty  to  act  in  good  faith  in  resolving  an  interference  dispute.  This  good  faith  requirement  includes  without  limitation,  the  obligation  to  timely 
 meet  appointments  and  provide  whatever  technical  assistance  is  appropriate  under  the  circumstances.  126  We  reaffirm  the  Commissions  commitment  that  it  will  neither 
 hesitate  to  act  when  the  obligation  of  good  faith  is  breached  nor  sanction  any  disingenuous  allegations  that  the  good  faith  obligation  has  been  breached.  127  In  this 
 connection,  we  note  that  whether  a  party  is  acting  in  good  faith  is  necessarily  a  matter  that  we  will  decide  on  a  case-  by-  case  basis.  We  are  unwilling  to  place  the 
 determination  of  whether  a  complaining  party  is  cooperating  or  not  in  the  hands  of  the  party  making  the  allegation  of  non-  cooperation.  Thus,  until  and  unless  we  determine 
 that  a  licensee  is  acting  in  bad  faith;  both  parties  to  an  interference  incident  remain  obliged  to  take  all  reasonable  measures  to  cooperate  in  its  resolution. 


 2.  Minimum  Receiver  Performance  Criteria 
 56.  Non-  cellular  licensees  in  the  800  MHz  band  must  use  receivers  with  minimum  performance  standards  in  order  to  be  entitled  to  full  protection  against  unacceptable 


 interference.  128  The  performance  values  the  Commission  chose  in  the  800  MHz  R&  O  were  based  on  the  expected  performance  from  affordable  public  safety  and  CII  radios.  129 
 Consolidated  Edison  Company  of  New  York,  Inc.  (ConEd)  seeks  reconsideration  of  the  minimum  receiver  performance  standards,  arguing  that  it  purchased  approximately 
 3,300  mobile/  portable  units  for  operation  on  its  Motorola  iDEN  system  that  fall  short  of 


 124  See  800  MHZ  R&  O,  19  FCC  Rcd  at  15044-  45    140. 
 125  See  CTIA  PFR  (of  R&  O)  at  4. 
 126  See  800  MHz  R&  O,  19  FCC  Rcd  at  15043    137-  138. 
 127  Supplemental  Order,  19  FCC  Rcd  at  25143    50. 
 128  See  800  MHz  R&  O,  19  FCC  Rcd  at  15032    109-  110. 
 129  Id. 
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 these  standards.  130  ConEd  contends  that,  at  the  time  it  purchased  its  equipment,  receivers  that  satisfied  the  minimum  performance  standard  were  unavailable  for  its 
 iDEN  system.  131 
 57.  As  an  initial  matter,  we  note  that  the  rules  do  not  regulate  receiver  performance  standards  per  se,  but  only  set  a  benchmark  against  which  entitlement  to 


 interference  protection  may  be  measured.  Thus,  nothing  in  the  rules  prohibits  ConEd  from  continuing  to  use  the  radios  it  purchased.  Secondly,  receiver  performance  comes 
 into  play  only  in  the  circumstance  in  which  systems  not  employing  cellular  architecture  encounter  interference.  132  ConEds  iDEN  system,  however,  is  a  cellular  architecture 
 system.  Cellular  architecture  systems  employ  frequency  reuse  and  are  interference-limited  within  the  system,  i.  e.,  the  predominant  source  of  interference  to  a  cellular 
 architecture  system  is  cells  within  the  system  itself.  Thus,  typically,  before  a  receiver  in  such  a  system  becomes  affected  by  interference  from  another  cell  on  the  same 
 frequency  or  from  an  external  interference  source  it  is  handed-  off  to  another  cell  on  another  frequency.  In  recognition  of  that  fact,  the  800  MHz  R&  O  made  no  changes  to 
 the  rules  governing  interference  to  cellular  architecture  systems.  Therefore,  we  see  no  reason  to  change  the  rules  for  interference  protection  to  non-  cellular  systems  to 
 accommodate  the  characteristics  of  cellular  architecture  receivers  and  are  denying  ConEds  petition  for  reconsideration. 


 58.  We  note  that  our  decision  not  to  factor  the  performance  characteristics  of  cellular  architecture  receivers  into  the  interference  equation  does  not  mean  that  non-cellular, 
 e.  g.,  public  safety,  systems  using  receivers  that  do  not  meet  the  performance  standards  for  obtaining  maximum  protection  against  interference  are  entirely  without 
 protection.  The  Commission  recognized  that  such  licensees  may  employ  older  radios  that  fail  to  conform  to  the  performance  threshold  standard.  133  In  such  a  case,  the 
 licensee  is  afforded  interference  protection,  but  subject  to  a  proportionately  higher  received  signal  threshold:  for  each  one  dB  by  which  the  receiver  does  not  meet  the 
 performance  standard,  there  is  a  one  dB  increase  in  the  -104  dBm  (mobile)  or  -101  dBm  (portable)  signal  strength  threshold.  134 


 130  See  Petition  for  Clarification  and  Reconsideration,  filed  Dec.  22,  2004,  by  Consolidated  Edison 
 Company  of  New  York,  Inc.  (ConEd  PFR  (of  R&  O))  at  6.  See  also  Reply  to  Opposition  to  Petitions  for  Clarification  and  Reconsideration,  filed  May  2,  2004,  by  Con  Ed  (ConEd  Reply)  at  2  (field  testing  reveals  that 


 their  mobile  units  will  actually  meet  the  minimum  intermodulation  rejection  requirements  established  in  the  800  MHz  R&  O). 


 131  See  ConEd  PFR  (of  R&  O)  at  6-  7. 
 132  See  47  C.  F.  R.    90.672. 
 133  See  800  MHz  R&  O,  19  FCC  Rcd  15033    112. 
 134  Id. 
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 63.  We  find  that  MPAA,  the  precedent  cited  by  Coastal  relative  to  the  Commissions  jurisdiction,  is  inapposite  here.  In  MPAA,  the  United  States  Court  of 
 Appeals  for  the  District  of  Columbia  Circuit  (D.  C.  Circuit)  specifically  bounded  the  Commissions  authority  to  deal  with  video  description  because  Congress  had  only 
 directed  the  Commission  to  produce  a  report  on  video  description  nothing  more,  nothing  less.  153  Here,  the  Commissions  authority  to  resolve  the  interference  problems 
 that  exist  in  the  800  MHz  band  was  not  similarly  limited.  As  noted  in  the  800  MHz  R&  O,  in  the  Auction  Reform  Act  of  2002,  Congress  clearly  indicated  its  approval  of  the 
 Commission  considering  allocating  spectrum  outside  the  800  MHz  band  in  order  to  resolve  the  interference  problems  in  the  800  MHz  band.  154 


 64.  We  reiterate  that  the  Commission  has  the  legal  authority  under  the  Communications  Act  to  modify  Nextels  licenses  pursuant  to  Section  316  so  long  as  it 
 serves  the  public  interest.  155  The  starting  point  of  the  Commissions  public  interest  analysis  under  Section  316  was  Section  1  of  the  Act,  which  explicitly  directs  the 
 Commission  to  promote  safety  of  life  and  property  through  radio  communications  156  its  exact  objective  in  the  instant  proceeding.  California  Mobile  Metro  Communications  v. 
 FCC  (CMMC)  157  and  other  cases  demonstrate  that  Section  316  confers  on  the  Commission  broad  discretion  to  modify  licenses  in  the  public  interest.  158  Indeed,  the 
 D.  C.  Circuit  has  held  that  license  modifications  do  not  have  to  be  entirely  consensual;  159  (Continued  from  previous  page) 
 150  47  U.  S.  C.    151. 


 151  47  U.  S.  C.    154(  i)  (stating  that  "[  t]  he  Commission  may  perform  any  and  all  acts,  make  such  rules  and 
 regulations,  and  issue  such  orders,  not  inconsistent  with  this  Act,  as  may  be  necessary  in  the  execution  of  its  functions"). 


 152  See  800  MHz  R&  O,  19  FCC  Rcd  at  15010-  11    64. 
 153  See  MPAA,  309  F.  3d  at  807. 
 154  See  800  MHz  R&  O,  19  FCC  Rcd  at  15010    63  citing  the  Auction  Reform  Act  of  2002,  Pub.  L.  No. 
 107-  195,  116  Stat.  715,    2(  4)  (2002)  (Auction  Reform  Act).  Congress  observed  that  [  t]  he  Federal  Communications  Commission  is  also  in  the  process  of  determining  how  to  resolve  the  interference  problems  that 


 exist  in  the  800  megahertz  band,  especially  for  public  safety.  One  option  being  considered  for  the  800  megahertz  band  would  involve  the  700  megahertz  band.  The  Commission  should  not  hold  the  700  megahertz  auction  before 
 the  800  megahertz  interference  issues  are  resolved  or  a  tenable  plan  has  been  conceived. 
 155  See  800  MHz  R&  O,  19  FCC  Rcd  at  15011-  12    65-  67. 


 156  See  47  U.  S.  C.    151;  see  generally  800  MHz  R&  O,  19  FCC  Rcd  at  15011    64. 
 157  California  Metro  Mobile  Communications  v.  FCC,  365  F.  3d  38,  45  (D.  C.  Cir  2004). 
 158  Id. 
 159  See  Peoples  Broadcasting  Co.  v.  United  States,  209  F.  2d  286,  288  (D.  C.  Cir.  1953)  (upholding  the 
 Commission's  authority  to  modify  a  television  station  license  without  an  application  by  the  licensee  for  such  a  modification,  noting  that  if  modification  of  licenses  were  entirely  dependent  upon  the  wishes  of  existing 


 licensees,  a  large  part  of  the  regulatory  power  of  the  Commission  would  be  nullified). 
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 that  license  holders  may  be  moved  on  a  service-  wide  basis,  without  license-  by-  license  consideration;  160  and  that  eliminating  harmful  interference  is  an  accepted  basis  for 
 ordering  such  wholesale  license  modifications.  161 
 65.  Some  parties  contend  that  the  license  modifications  that  the  Commission  ordered  to  abate  interference  exceeded  the  license  modification  authority  conferred  on 


 the  Commission  by  Section  316  of  the  Act.  James  Kay  argues  that  the  Commissions  Section  316  public  interest  finding  was  flawed  because  the  Commissions  goals  could 
 have  been  met  otherwise,  i.  e.,  that  adequate  interference  abatement  could  be  achieved  by  enforcement  of  the  Commissions  technical  rules  and  reliance  on  market  forces  to 
 cause  Nextel  to  cease  causing  interference.  162  Kay  also  argues  that  a  generic  finding  that  Nextels  ESMR  operations  are  causing  interference  does  not  justify  modification  of 
 the  licenses  of  non-  ESMR  licensees  that  have  not  caused  interference  to  public  safety.  163  Citing  CMMC,  he  further  asserts  that  the  Commission  may  invoke  Section  316 
 only  to  modify  the  licenses  of  stations  that  actually  or  potentially  cause  interference  or  to  correct  errors  in  frequency  coordination.  164 


 66.  Neither  Kay  nor  any  other  party  has  convinced  us  that  band  reconfiguration  is  not  an  essential  solution  for  abating  interference  to  public  safety  systems  in  the  800 
 MHz  band.  As  the  800  MHz  R&  O  discusses  in  detail,  unacceptable  interference  can  result  even  when  all  contributors  to  that  interference  are  operating  in  accordance  with 
 the  rules.  165  Although  Nextel  has  been  implicated  in  interference  incidents,  the  record  reflects  that  the  interference  problem  the  Commission  has  sought  to  remedy  in  this 
 proceeding  is  highly  complex  and  has  not  been  caused  by  any  single  party.  166  The  cause  is  the  fact  that  systems  with  incompatible  technologies  operate  in  spectral 
 proximity  to  one  another.  167  We  continue  to  believe  that  the  only  feasible  means  to  protect  public  safety  licensees  from  unacceptable  interference,  now  and  in  the  future,  is 


 160  See  Community  Television,  Inc.  v.  FCC,  216  F.  3d  1133,  1140  (D.  C.  Cir.  2000)  (upholding  the 
 Commissions  rules  establishing  procedures  and  a  timetable  under  which  television  broadcasting  would  migrate  from  analog  to  digital  technology). 


 161  See  CMMC,  365  F.  3d  at  41. 
 162  See  Kay  PFR  (of  R&  O)  at  4-  5. 
 163  Id. 
 164  Id. 
 165  See  800  MHz  R&  O,  19  FCC  Rcd  at  15034-  37    115-  123. 
 166  See  id.,  19  FCC  Rcd  at  15113    300. 
 167  See  id. 
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 the  spectral  separation  the  Commission  achieved  in  relocating  public  safety  channels  as  far  in  frequency  as  possible  from  ESMR  and  cellular  telephone  operations.  168 
 67.  As  noted  in  the  800  MHz  R&  O,  the  holding  in  CMMC  actually  reinforces  the  Commissions  legal  authority  to  order  band  reconfiguration.  169  At  issue  in  CMMC  was 
 whether  the  time  limit  established  by  Section  405  of  the  Act  170  precluded  the  Commission  from  modifying  a  license  that  had  the  potential  to  cause  interference  to  an 
 existing  licensee.  The  CMMC  court  stated  that  the  boundaries  of  Section  316  are  not  to  be  measured  relative  to  the  time  limits  of  Section  405,  but  rather  by  the  public  interest 
 standard  of  Section  316.  171  Although  the  action  under  review  in  CMMC  related  to  a  frequency  coordination  error,  the  court  did  not  hold  that  the  Commissions  right  to 
 invoke  Section  316  is  limited  to  modifying  licenses  of  stations  that  cause  interference  or  correcting  technical  errors,  as  Kay  argues.  Instead,  as  noted  above,  the  central  holding 
 of  CMMC  and  other  cases  affirming  the  Commissions  Section  316  authority  is  that  the  Commission  has  broad  discretion  in  modifying  licenses  when  doing  so  would  serve  the 
 public  interest. 
 b.  Competitive  Bidding  Arguments 
 68.  Preferred  contends  that  modifying  Nextels  license  to  afford  it  access  to  spectrum  at  1.9  GHz  is  impermissible  under  CMCC  because  CMMC  applies  to  license 


 modifications,  not  to  initial  licensing  scenarios.  According  to  Preferred,  assigning  Nextel  1.9  GHz  access  to  spectrum  represents  a  modification  that  is  so  different  in  kind  that  it 
 constitutes  issuance  of  an  initial  license  under  the  standards  enunciated  in  Fresno  Mobile  Radio,  172  and  by  the  Commission  in  the  Competitive  Bidding  Second  R&  O  173  and 
 as  reflected  in  Section  1.929(  a)(  6)  174  of  the  Commissions  Rules.  175 


 168  See  id.,  19  FCC  Rcd  at  15050-  15052    150-  153. 
 169  See  800  MHz  R&  O,  19  FCC  Rcd  at  15011    65  n.  214. 
 170  47  U.  S.  C.    405. 
 171  See  CMMC,  365  F.  3d  at  45-  46. 
 172  See  Fresno  Mobile  Radio,  Inc.,  et  al.  v.  FCC,  165  F.  3d  965,  970  (D.  C.  Cir.  1999)  (Fresno). 
 173  Implementation  of  Section  309(  j)  of  the  Communications  Act-  Competitive  Bidding,  PP  Docket  No. 
 93-  253,  Second  Report  and  Order,  9  FCC  Rcd  2348  (1994)  (Competitive  Bidding  Second  R&  O). 
 174  47  C.  F.  R.    1.929(  a)(  6). 


 175  See  Preferred  PFR  (of  R&  O)  at  33-  44.  Preferred  contends  that  the  award  of  a  nationwide  license 
 would  be  considered  an  initial  license  under  the  Commissions  rules  since  it  would  be  a  major  modification.  Id.  at  36.  Under  the  Commissions  rules,  Preferred  argues,  a  licensee  request  to  add  spectrum  for  which  the 


 applicant  is  not  currently  authorized  is  considered  a  major  modification.  Id.  citing  47  C.  F.  R.    1.929(  a)(  6)  (application  or  amendment  to  application  requesting  new  frequencies  for  which  the  applicant  is  not  currently 
 authorized  should  be  classified  as  a  major  filing).  According  to  Preferred,  the  Commission  has  long-  recognized  (continued.) 
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 69.  We  reaffirm  our  conclusion  that  the  grant  to  Nextel  of  access  to  1.9  GHz  spectrum  was  well  within  the  scope  of  the  Commissions  Section  316  license 
 modification  authority  and  past  precedent,  and  that  the  Commission  was  not  precluded  from  granting  such  rights  by  license  modification  as  opposed  to  initial  licensing.  176 
 Contrary  to  Preferreds  contention,  the  Fresno  case  does  not  suggest  that  the  Commission  exceeded  its  license  modification  authority  here.  As  an  initial  matter, 
 Fresno  did  not  even  address  the  scope  of  the  Commissions  license  modification  authority  under  Section  316,  but  only  the  question  of  whether  the  Commission  properly 
 exercised  its  initial  licensing  authority  under  Section  309(  j)(  1)  of  the  Communications  Act.  At  issue  in  that  case  was  a  challenge  to  the  Commissions  creation  and  auction  of 
 new  EA-  based  geographic  overlay  licenses  in  the  800  MHz  band  for  geographic  areas  in  which  there  were  existing  site-  based  SMR  incumbents.  Because  the  Commission 
 was  creating  an  entirely  new  service  and  licensing  rules  for  the  band,  with  EA  licensees  receiving  significantly  expanded  spectrum  rights  and  flexibility  in  comparison  to  existing 
 site-  based  licensees,  the  Commission  rejected  attempts  by  some  incumbents  to  obtain  EA  licenses  by  modification  of  their  existing  site-  based  licenses.  The  Fresno  court 
 found  that  declining  to  do  so  was  a  reasonable  exercise  of  the  Commissions  initial  licensing  authority.  The  court  found  that  in  order  for  a  license  to  be  considered  initial 
 under  Section  309(  j)(  1),  a  newly  issued  license  must  differ  in  some  significant  way  from  the  license  it  displaces.  177  The  court  noted  that  nothing  in  the  text  of  [section  309(  j)] 
 forecloses  [the  FCC]  from  considering  a  license  initial  if  it  is  the  first  awarded  for  a  particular  frequency  under  a  new  licensing  scheme,  that  is,  one  involving  a  different  set 
 of  rights  and  obligations  for  the  licensee.  178  However,  as  the  Commission  stated  in  the  800  MHz  R&  O,  the  authorizations  that  Nextel  will  hold  as  a  result  of  the  restructuring 
 process  do  not  differ  significantly  enough  in  terms  of  rights  and  responsibilities  from  Nextels  existing  authorizations  to  warrant  their  being  regarded  as  the  issuance  of  a  new 
 license  rather  than  a  modification  of  license.  179 
 70.  Although  the  Commission  had  the  authority  to  auction  licenses,  it  was  not  required  to  do  so,  as  Preferred  argues.  Section  309(  j)  supports  our  conclusion  that  we 


 have  the  authority  to  avoid  mutual  exclusivity  in  this  context  when  it  is  in  the  public  interest  to  do  so.  The  Commission,  acting  within  the  discretion  afforded  it  by  Section 


 (Continued  from  previous  page)  such  a  major  modification  as  the  equivalent  of  an  initial  license  that  is  subject  to  the  competitive  bidding 
 provisions  of  Section  309(  j).  Preferred  reliance  on  this  rule  is  misplaced  because  the  standard  enunciated  in  the  Competitive  Bidding  Second  Report  &  Order,  states  that  the  Commission  will  consider  the  nature  of  the 
 modification  among  other  factors  in  determining  whether  a  modification  should  be  treated  as  an  initial  license.  See    70  infra. 


 176  See  800  MHz  R&  O,  19  FCC  Rcd  at  15015    73,  n.  236. 
 177  See  Fresno,  165  F.  3d  at  970. 
 178  Id. 
 179  See  800  MHz  R&  O,  19  FCC  Rcd  at  15015    73,  n.  236. 
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 309(  j),  declined  to  auction  the  1.9  GHz  spectrum  and  thus  did  not  accept  applications  that  would  have  been  mutually  exclusive  with  the  modification  of  Nextels  license.  The 
 plain  language  of  Section  309(  j)  does  not  require  the  Commission  to  subordinate  its  duty  of  promoting  safety  of  life  and  property  in  order  to  generate  auction  revenues  and 
 promote  competition.  Section  309(  j)(  6)(  E)  provides  that  "[  nothing  in  this  subsection  shall]  be  construed  to  relieve  the  Commission  of  the  obligation  in  the  public  interest  to 
 continue  to  use  engineering  solutions,  negotiation,  threshold  qualifications,  service  regulations,  and  other  means  in  order  to  avoid  mutual  exclusivity  in  application  and 
 licensing  proceedings.  180  Thus,  as  the  Commission  stated  in  the  800  MHz  R&  O,  in  Section  309(  j)(  6)(  E),  Congress  recognized  that  the  Commission  can  determine  that  its 
 public  interest  obligation  warrants  action  that  avoids  mutual  exclusivity,  and  that  this  obligation  extends  to  applications  and  licensing  proceedings  (which  include  license 
 modifications),  not  just  initial  licensing  matters.  181  As  the  Commission  found  in  the  800  MHz  R&  O,  the  conclusion  that  it  has  the  authority  to  avoid  mutual  exclusivity  in  this 
 context  when  it  is  in  the  public  interest  to  do  so  is  supported  by  the  Acts  legislative  history,  182  subsequent  court  and  Commission  decisions,  183  and  other  provisions  of  the 
 Act.  184 
 71.  The  800  MHz  R&  O  was  faithful  to  Congress  directive  that  the  Commission  consider  a  variety  of  public  interest  objectives  when  identifying  classes  of  licenses  and 


 permits  to  be  issued  by  competitive  bidding,  in  specifying  the  eligibility  and  other  characteristics  of  such  licenses  and  permits,  and  in  designing  methodologies  for  use 
 under  this  subsection.  185  The  public  interest  objectives  of  Section  309(  j)(  3)  apply  broadly  to  the  threshold  issue  of  which  licenses  should  be  subject  to  auction.  Thus, 
 Section  309(  j)(  3)  of  the  Act  requires  us  to  consider  our  Title  I  obligations,  pursuant  to  Section  151  of  the  Act,  which  includes  promoting  safety  of  life  and  property  through 
 radio  communications.  In  sum,  Sections  151  and  303  of  the  Act  and  recent  Congressional  statements  buttress  the  conclusion  that  assigning  Nextel  1.9  GHz 
 spectrum  rights  as  part  of  the  Commissions  plan  to  solve  interference  is  a  valid  use  of  spectrum  in  the  public  interest.  186 


 72.  Similarly,  we  reject  Kays  argument  that  assigning  spectrum  to  Nextel  undermines  the  economic  purpose  of  Section  309(  j).  His  economic  policy  paper 
 180  47  U.  S.  C.  309(  j)(  6)(  E)  (emphasis  added). 
 181  See  800  MHz  R&  O,  19  FCC  Rcd  at  15015    73. 
 182  Id.  at  15015  n.  237. 
 183  Id. 
 184  Id.  at  15016  n.  238. 
 185  47  U.  S.  C.    309(  j)(  3). 
 186  See  800  MHz  R&  O,  19  FCC  Rcd  at  15010    63  citing  Auction  Reform  Act. 
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 arguing  that  market  based  valuations  are  superior  to  third-  party  appraisals  in  assessing  the  value  of  spectrum  187  does  not  alter  our  conclusion  that  assigning  the  1.9  GHz 
 spectrum  to  Nextel  in  this  case  is  in  the  public  interest.  Section  309(  j)(  7)  prohibits  the  Commission  from  basing  a  decision  to  auction  spectrum  solely  on  the  expectation  of 
 auction  revenues.  188  Although  the  recovery  of  auction  revenue  and  promoting  competition  are  important  purposes  of  the  auction  statute,  189  Congress  recognized  that 
 there  may  be  more  important  uses  for  spectrum  than  generating  revenues  for  the  Treasury.  We  believe  that  in  the  instant  case  the  public  interest  benefit  of  having 
 reliable  interference-  free  communications  for  the  nations  first  responders  in  paramount. 
 c.  Regulatory  Parity 
 73.  We  also  find  unpersuasive  claims  that  considerations  of  regulatory  parity  codified  in  Section  332  of  the  Act  190  either  require  the  Commission  to  open  access  to  1.9 


 GHz  spectrum  to  non-  Nextel  EA  licensees,  191  or  prohibit  assigning  replacement  spectrum  exclusively  to  Nextel  as  compensation  for  its  spectrum  and  monetary 
 contributions  to  band  reconfiguration.  192  By  way  of  background,  in  1993  Congress  amended  Section  332  of  the  Act  to  require  the  Commission  to  classify  all  mobile  radio 
 services  as  either  commercial  or  private.  193  For  certain  services  classified  as  Commercial  Mobile  Radio  Services  (CMRS),  the  Commission  was  required  to 
 promulgate  technical  requirements  that  are  comparable  to  the  technical  requirements  that  apply  to  licensees  that  are  providers  of  substantially  similar  [commercial] 
 services.  194  The  Commission  subsequently  concluded  that  SMR  licensees  offering  for-profit  interconnected  services  i.  e.,  those  involving  both  radio  and  landline  telephone 
 communications  are  substantially  similar  to  cellular  telephone  and  Personal  Communication  Service  (PCS)  services  and  should  therefore  be  subject  to  comparable 


 187  See  Market-  Based  Valuation  vs.  Third  Party  Appraisals  as  a  Means  to  Ensure  Fair  Valuation  and 
 Efficient  Allocation  of  1.  9  GHz  Spectrum,  Lee  L.  Selwyn  and  Helen  E.  Goldberg  (Dec.  2004)  attached  to  Kay  PFR  (of  R&  O). 


 188  47  C.  F.  R.    309(  j)(  7). 
 189  47  C.  F.  R.    309(  j)(  3). 
 190  47  U.  S.  C.    332(  c)(  8). 
 191  See  Preferred  PFR  (of  R&  O)  at  38,  40  citing  Omnibus  Budget  Reconciliation  Act  of  1993,  Pub.  L. 
 No.  6002(  d)(  3)(  B),  107  Stat.  397  (1993);  Guskey  PFR  (of  R&  O)  at  3-  9. 
 192  See  Coastal  PFR  (of  R&  O)  at  14-  16. 


 193  See  47  U.  S.  C.    332(  c). 
 194  See  Pub.  L.  No.  103-  66,    6002(  d)(  3)(  B),  107  Stat.  312  (1993)  (requiring  the  Commission  to  determine 
 if  a  reclassified  private  land  mobile  service  is  substantially  similar  to  a  common  carrier  service  and,  if  so,  the  extent  to  which  it  is  necessary  and  practical  to  modify  our  rules  to  ensure  that  the  two  services  are  subject  to 


 comparable  technical  requirements). 
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 regulatory  regimes.  195  However,  although  achieving  regulatory  parity  is  a  significant  policy  goal  that  can  yield  important  pro-  competitive  and  pro-  consumer  benefits,  the 
 Commission  has  long  recognized  that  parity  for  its  own  sake  is  not  required  by  Section  332  or  any  other  provision  of  the  Act.  196  In  fact,  Congress  recognized  that  differential 
 regulatory  treatment  of  CMRS  providers  is  permissible,  197  because  Section  332  explicitly  authorizes  the  Commission  to  distinguish  between  CMRS  providers,  198  and  instructs  us 
 to  look  beyond  the  scope  of  economic  competition  when  making  spectrum  management  decisions,  so  that  we  may  consider  the  effect  of  our  actions  on  safety  of  life  and 
 property.  Indeed,  the  Commission  may  not  do  otherwise:  the  D.  C.  Circuit  has  stated  that  [  t]  he  Commission  is  not  at  liberty  to  subordinate  the  public  interest  to  the  interest  of 
 equalizing  competition  among  competitors.    199  Thus,  because  the  Commission,  in  the  800  MHz  R&  O,  provided  a  reasoned  explanation  of  why  Nextels  unique  role  in  solving 
 the  unacceptable  interference  problem  justified  differential  treatment,  it  complied  with  Section  332  and  the  cases  interpreting  it. 


 74.  We  also  disagree  with  Preferreds  contention  that  precedent  dictates  that  the  Commission  could  only  assign  the  1.9  GHz  spectrum  outside  the  auction  process  if  it 
 made  it  available  to  all  EA  licensees.  200  In  support  of  this  claim,  Preferred  cites  language  in  court  cases  to  the  effect  that  the  Commission  may  not  establish  a  license 
 by  rule,  i.  e.,  that  the  Commission,  merely  by  invoking  its  rulemaking  authority,  cannot 


 195  See  Implementation  of  Sections  3(  n)  and  332  of  the  Communications  Act,  GN  92-  235,  Third  Report 
 and  Order,  9  FCC  Rcd  7988,  8001-  8036,  8042    22-  79,  94  (1994).  In  this  connection,  we  note  the  Commission  previously  classified  SMR  licensees  who  offer  interconnected  service  as  CMRS  whereas  SMR  licensees  who  do 


 not  offer  interconnected  service  were  classified  as  PMRS.  See  Implementation  of  Sections  3(  n)  and  332  of  the  Communications  Act,  GN  92-  235,  Second  Report  and  Order,  9  FCC  Rcd  1411,  1510    269  (1994). 


 196  See  Year  2000  Biennial  Regulatory  Review  --  Amendment  of  Part  22  of  the  Commissions  Rules  to 
 Modify  or  Eliminate  Outdated  Rules  Affecting  the  Cellular  Radiotelephone  Service  and  Other  Commercial  Mobile  Radio  Services,  WT  Docket  No.  01-  108,  Order  on  Reconsideration,  19  FCC  Rcd  3239  at  3248    21 


 (2004). 
 197  See  H.  R.  Rep.  No.  111,  103d  Cong.,  1st  Sess.,  1993,  reprinted  in  1993  U.  S.  Code  Cong.  &  Admin. 
 News  378,  586-  89. 
 198  See  47  U.  S.  C.  332(  c)(  1)(  A)  (  A  person  engaged  in  the  provision  of  a  service  that  is  commercial 
 mobile  radio  service  shall,  insofar  as  such  person  is  so  engaged,  be  treated  as  a  common  carrier  for  purposes  of  this  chapter,  except  for  such  provisions  of  subchapter  II  of  this  chapter  as  the  Commission  may  specify  by 


 regulation  as  inapplicable  to  that  service  or  person.). 
 199  SBC  Communications,  Inc.  v.  FCC,  56  F.  3d  1484,  1491  (D.  C.  Cir.  1995).  See  Hawaiian  Telephone 
 Co.  v.  FCC,  498  F.  2d  771,  776  (D.  C.  Cir.  1974)  (FCC  did  not  conform  to  public  interest  mandate  in  approving  applications  where  it  considered  the  factor  of  competition  not  in  terms  primarily  as  to  benefit  the  public  but 


 specifically  with  the  objective  of  equalizing  competition  among  competitors).  See  also  W.  U.  Telephone  Co.  v.  FCC,  665  F.  2d  1112,  1122  (.  .  .  equalization  of  competition  is  not  itself  a  sufficient  basis  for  Commission 
 action). 
 200  See  Preferred  PFR  (of  R&  O)  at  37. 
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 avoid  the  adjudicatory  procedures  required  for  granting  and  modifying  individual  licenses.  201  However,  the  cases  cited  on  this  point  by  Preferred  cannot  reasonably  be 
 read  to  say  that,  in  the  case  of  modification  of  Nextels  licenses,  the  Commission  was  either  obligated  to  auction  the  1.9  GHz  spectrum  or,  if  not,  to  accept  mutually  exclusive 
 applications  for  the  spectrum.  202  For  example,  in  ARINC,  the  D.  C.  Circuit  overturned  a  Commission  decision  awarding  a  license  to  a  consortium  of  qualified  and  interested 
 parties  rather  than  a  single  licensee.  203  The  ARINC  court  found  only  that  the  Commissions  rule  making  authority  did  not  extend  to  requiring  interested  applicants 
 (which  had  not  filed  their  applications  as  a  consortium)  to  join  a  consortium  and  forego  the  opportunity  to  obtain  individual  licenses.  204  The  narrow  holding  in  ARINC  is 
 inapposite  here,  because,  pursuant  to  Section  309(  j)  of  the  Act,  the  Commission  did  not  and  was  not  required  to  open  the  1.9  GHz  spectrum  to  mutually  exclusive 
 applicants,  much  less  require  such  applicants  to  establish  a  consortium  to  serve  as  the  licensee.  205 


 d.  Market  Entry  Barriers 
 75.  We  similarly  disagree  with  arguments  that  Section  257  of  the  Act  requires  the  Commission  to  provide  spectrum  rights  in  the  1.9  GHz  band  to  non-  Nextel  EA 


 licensees.  206  Section  257  requires  the  Commission  to  conduct  a  proceeding  to  identify  and  eliminate  market  entry  barriers  for  entrepreneurs  and  other  small  businesses  in  the 
 provision  and  ownership  of  telecommunications  services  and  information  services  within  fifteen  months  of  the  enactment  of  the  Telecommunications  Act  of  1996,  and 
 periodically  to  review  its  regulations  and  report  to  Congress  regarding  the  existence  of  any  such  barriers.  207  The  Commission  concluded  the  requisite  initial  proceeding  in 
 1997  208  and  has  since  issued  three  Section  257  Reports  to  Congress,  the  most  recent  in  2004.  209  A  Section  257  review  does  not  negate  the  Commissions  Title  I  mandate  to 
 promote  safety  of  life  and  property  through  radio  communications.  Thus,  we  are  not 
 201  See  Preferred  PFR  (of  R&  O)  at  38  citing  Aeronautical  Radio,  Inc.  v.  FCC,  928  F.  2d  428,  451  (D.  C. 
 Cir.  1991)(  ARINC);  Committee  for  Effective  Cellular  Rules  v.  FCC,  53  F.  3d  1309,  1313  (D.  C.  Cir.  1995);  New  South  Media  Corp.  v.  FCC,  685  F.  2d  708  (D.  C.  Cir.  1982). 


 202  See  Preferred  PFR  (of  R&  O)  at  37-  38. 
 203  See  ARINC,  928  F.  3d  at  428. 
 204  See  id.,  928  F.  3d  at  451-  53. 
 205  See  800  MHz  R&  O,  19  FCC  Rcd  at  15013    69. 
 206  See  Preferred  PFR  (of  R&  O)  at  39. 
 207  See  47  U.  S.  C.    257(  a). 
 208  See  Section  257  Proceeding  To  Identify  and  Eliminate  Market  Entry  Barriers  For  Small  Businesses, 
 Report,  GN  Docket  No.  96-  113,  12  FCC  Rcd  16802  (1997). 
 209  See  Section  257  Triennial  Report  to  Congress,  Report,  19  FCC  Rcd  3034  (2004). 
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 persuaded  that  our  obligation  to  report  to  Congress  and  to  review  our  regulations  concerning  market  barriers  translates  to  the  conclusion,  urged  by  petitioners,  that  we 
 are  foreclosed  from  providing  the  nations  first  responders  with  reliable  800  MHz  communications  systems  on  account  of  what  they  apparently  perceive  as  a  barrier 
 against  their  entry  into  the  telecommunications  marketplace. 
 e.  Appropriations  Statutes 
 76.  Finally,  we  disagree  with  Coastals  contention  that  the  800  MHz  R&  O  failed  to  adequately  address  concerns  that  the  assignment  of  1.9  GHz  spectrum  to  Nextel 


 violates  the  Anti-  Deficiency  Act  (ADA)  or  the  Miscellaneous  Receipts  Act  (MRA).  210  The  800  MHz  R&  O  fully  addressed  the  ADA,  the  MRA  and  other  other  legal  issues  raised  by 
 various  commenting  parties,  and  concluded  that  these  statutes  did  not  limit  the  Commissions  authority  to  reallocate  spectrum  or  to  require  a  licensee  to  pay  others' 
 relocation  costs  in  the  manner  provided  in  the  800  MHz  R&  O.  211  However,  aware  that  a  member  of  Congress  had  asked  the  Government  Accountability  Office  (GAO)  to  render 
 an  opinion  on  the  applicability  of  those  statutes,  the  Commission  committed  to  revisit  the  matter  should  the  Comptroller  General,  the  head  of  the  GAO,  unambiguously 
 conclude  that  the  Commissions  actions  violated  either  the  ADA  or  the  MRA.  212  Subsequently,  the  GAO  analyzed  the  800  MHz  R&  O  and  the  Comptroller  General 
 rendered  an  opinion  consistent  with  the  Commissions  analysis.  The  GAO  found  that  providing  Nextel  spectrum  rights  in  exchange  for  its  spectral  and  financial  contributions 
 to  band  reconfiguration  does  not  violate  the  ADA,  because  the  800  MHz  R&  O  does  not  involve  FCC  obligations  or  expenditures  under  the  ADA.  213  Similarly,  with  regard  to 
 the  MRA,  the  GAO  found  that  modification  of  Nextels  licenses  results  in  no  money  owed  the  government,  and  it  deferred  to  the  Commissions  interpretation  of  the 
 Commissions  authority  to  assign  Nextel  spectrum  pursuant  to  a  license  modification.  214  Coastal  has  failed  to  address  the  GAO  decision  or  present  any  new  argument  that 
 would  suggest  a  violation  of  these  appropriations  statutes.  Accordingly  we  reaffirm  the  Commissions  sound  conclusion  that  the  800  MHz  R&  O  did  not  violate  the  ADA  and 
 MRA. 


 210  See  Coastal  PFR  (of  R&  O)  at  17  n.  36. 
 211  Id.  at  15020-  21    85-  87. 
 212  See  id.  at  15021    86. 
 213  See  Letter,  dated  Nov  8,  2004,  from  Anthony  Gamboa,  General  Counsel,  General  Accounting  Office 
 to  the  Honorable  Frank  R.  Lautenberg,  U.  S.  Senate  (GAO  Letter).  The  ADA,  31  U.  S.  C.    1341(  a)(  1)(  B),  prohibits  federal  agencies  from  obligating  or  expending  funds  in  excess  or  in  advance  of  the  amount  Congress  has 


 appropriated.  Id  at  9-  10. 
 214  GAO  Letter  at  18-  22.  The  MRA,  31    U.  S.  C.  3302(  b),  requires  that  money  received  for  the  United 
 States  be  deposited  in  the  Treasury  and  an  agency  cannot  avoid  the  statute  by  changing  the  form  of  its  transaction  to  avoid  receiving  money  that  would  otherwise  be  owed  to  it  unless  so  authorized  by  law. 
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 2.  Valuation 
 77.  In  the  800  MHz  R&  O,  the  Commission  estimated  that  a  fair  market  value  of  the  1.9  GHz  band  replacement  spectrum  rights  was  $1.70  per  MHz  per  person  (MHz-pop) 


 or  approximately  $4.86  billion,  215  which  it  based,  in  part,  on  two  benchmark  secondary  market  transactions:  a  December  2002  purchase  by  Verizon  Wireless  of  fifty 
 Northcoast  licenses  and  a  Fall  2003  agreement  by  Cingular  Wireless  to  purchase  NextWave  spectrum  in  thirty-  four  cities.  216  One  petitioner  contends  that  we  must  revalue 
 the  1.9  GHz  spectrum  based  on  Verizon  Wirelesss  July  8,  2004  purchase  of  ten  megahertz  of  PCS  spectrum  in  New  York  for  $930  million  instead  of  the 
 Verizon/  Northcoast  transaction  in  which  Verizon  paid  only  $481  million  to  purchase  a  ten  megahertz  New  York  license.  217  This  substitution,  it  is  argued,  would  raise  the  fair 
 market  value  of  the  1.9  GHz  band  spectrum  rights  to  $2.19  MHz-  pop.  218 
 78.  We  decline  to  reconsider  the  valuation  performed  in  the  800  MHz  R&  O.  As  an  initial  matter,  we  note  that  the  valuation  method  used  by  the  Commission  is  not  in 


 dispute,  but  rather  whether  we  should  revalue  the  1.9  GHz  band  spectrum  rights  based  on  a  more  recent  transaction.  The  Commission  performed  the  valuation  in  the  800  MHz 
 R&  O  using  the  most  recent  arms-  length  transactions  involving  the  purchase  of  large  numbers  of  spectrum  licenses.  219  The  Commission  found  that  these  transactions  most 
 accurately  reflected  the  value  of  a  nationwide  license  because  they  involved  a  large  number  of  licenses  spanning  a  representative  range  of  small  to  large  markets  and  no 
 assets  other  than  the  licenses  themselves  were  involved.  220 
 79.  The  Commission  recognized  that  the  spectrum  value  could  change  after  the  order  was  adopted  but  emphasized  that  the  value  of  spectrum  is  seldom  static  because 


 it  hinges  on  multiple  variables,  some  intangible,  which  exist  at  the  moment  a  willing  buyer  and  willing  seller  agree  to  a  transaction  or  when  an  informed  bidder  places  its  bid 
 in  an  auction.  221  Thus,  the  estimate  performed  by  the  Commission  was  a  snapshot  based  on  the  best  available  data  at  that  time.  Although  the  Verizon  transaction 
 occurred  on  July  8,  2004,  the  day  the  800  MHz  R&  O  was  adopted,  it  would  have  been  impossible  for  the  Commission  to  factor  this  transaction  into  its  valuation  without  further 
 delay  of  the  order.  We  see  no  reason  to  revisit  the  valuation  based  on  the  Verizon  or 
 215  See  800  MHz  R&  O,  19  FCC  Rcd  at  15112    297. 
 216  Id.,  19  FCC  Rcd  at  15111    293. 
 217  Guskey  PFR  (of  R&  O)  at  4-  5. 
 218  Id. 
 219  See  800  MHz  R&  O,  19  FCC  Rcd  at  15111    294. 
 220  See  id. 
 221  See  id.,  19  FCC  Rcd  at  15107    283. 
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 any  subsequent  transaction.  We  believe  that  continuing  to  alter  our  valuation  based  on  the  latest  transactions  would  create  continuing  uncertainty,  undermine  the  band 
 reconfiguration  process,  and  violate  the  cardinal  regulatory  principal  of  administrative  finality. 


 3.  Effect  of  the  Proposed  Sprint/  Nextel  Merger 
 80.  On  December  14,  2004,  Sprint  Corporation  (Sprint)  and  Nextel  announced  their  intention  to  merge  into  a  single  company,  to  be  called  Sprint  Nextel.  222  On 


 February  8,  2005,  Sprint  and  Nextel  filed  joint  applications  requesting  that  the  Commission  approve  the  transfer  of  control  of  licenses  and  authorizations  currently  held 
 or  controlled,  directly  or  indirectly,  by  Nextel  in  connection  with  their  proposed  merger.  223  In  their  merger  application,  Sprint  and  Nextel  agree  to  accept  the  obligations  placed  on 
 Nextel  in  the  800  MHz  R&  O.  224  We  approved  the  merger  on  August  3,  2005.  225 
 81.  Some  petitioners  claim  that  we  should  reevaluate  our  actions  in  this  proceeding  in  light  of  the  proposed  merger.  226  For  example,  Duncan  contends  that  the 


 Commission  would  presumably  require  the  proposed  merged  entity  to  divest  itself  of  1.9  GHz  spectrum  given  the  spectral  overlaps  between  Sprints  holdings  and  1.9  GHz 
 spectrum  to  be  licensed  to  Nextel.  227  Our  approval  of  the  merger  renders  Duncans 


 222  See  Joint  Press  Release  of  Sprint  and  Nextel,  dated  Dec.  15,  2004  Sprint  and  Nextel  to  Combine  in 
 Merger  of  Equals  available  at  http://  sprintnextel.  mergerannouncement.  com/?  refurl=  uhp_  globalnav_  merger  (Merger  Press  Release). 


 223  See  Applications  for  the  Transfer  of  Control  of  Licenses  and  Authorizations  from  Nextel 
 Communications,  Inc.  and  its  Subsidiaries  to  Sprint  Corporation,  WT  Docket  05-  63,  Order,  DA  05-  423,  20  FCC  Rcd  3607  (WTB  2005). 


 224  See  File  No.  0002031766,  Application,  WT  Docket  No.  05-  63  at  62-  63.  See  also  Nextel  Opposition 
 to  PFR  at  21.  In  this  connection,  we  reject  the  argument  that  we  should  refrain  from  assigning  Nextel  1.9  GHz  spectrum  until  completion  of  band  reconfiguration.  See  Guskey  PFR  (of  R&  O)  at  4.  Such  a  request  is 


 unnecessary  given  that  the  R&  O  imposes  several  conditions  on  Nextels  1.9  GHz  licenses,  including  the  requirement  to  complete  band  reconfiguration. 


 225  See  Applications  of  Nextel  Communications,  Inc.  and  Sprint  Corporation  For  Consent  to  Transfer 
 Control  of  Licenses  and  Authorizations,  Memorandum  Opinion  and  Order,  FCC  05-  148  (rel.  Aug.  8,  2005). 
 226  See  Petition  for  Reconsideration  of  Report  and  Order,  Fifth  Report  and  Order,  Fourth  Memorandum 
 Opinion  and  Order,  and  Order,  filed  Dec.  22,  2004  by  Richard  W.  Duncan  d/  b/  a  Anderson  Communications  (Duncan  PFR  (of  R&  O))  at  5;  Reply  to  Opposition  and  Comments  of  Nextel  Ommunicaions[  sic],  Inc.  Regarding 


 Petitions  for  Reconsideration  filed  Apr.  28,  2005  by  Richard  W.  Duncan  d/  b/  a  Anderson  Communications  (Duncan  Reply)  at  3-  4.  See  also  Reply  to  Oppositions  to  Petitions  for  Reconsideration,  filed  May  2,  2005,  by 
 Preferred  Communication  Systems,  Inc.  (Preferred  Reply)  at  3-  4. 
 227  See  Duncan  PFR  (of  R&  O)  at  5-  6.  As  noted  below,  we  herein  resolve  some  of  the  issues  raised  in  the 
 petition  for  reconsideration  filed  by  Richard  W.  Duncan  d/  b/  a  Anderson  Communications.  We  subsequently  will  address  any  remaining  issues  raised  in  that  petition. 
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 request  to  stall  the  band  reconfiguration  process  pending  a  Commission  ruling  on  the  Nextel  Sprint  merger  moot. 
 82.  Duncan  also  claims  that  the  Nextel  Sprint  merger  obviates  the  need  for  Nextel  to  use  1.9  GHz  to  develop  a  next  generation  network,  and  therefore  the  valuation  of 
 spectrum  surrendered  by  Nextel  fails  to  take  into  account  what  Duncan  describes  as  $3  billion  in  cost-  savings  if  it  flips  the  1.9  GHz  spectrum  at  a  profit.  228  Again,  Duncan 
 relies  solely  on  speculation  about  Nextels  business  plans  and  offers  no  support  for  the  supposition  that  Nextel  will  not  use  1.9  GHz  spectrum  to  develop  a  next-  generation 
 network.  His  claim  that  Nextel  would  realize  a  cost  savings  as  a  consequence  of  the  merger  is  similarly  speculative  and  unsupported.  Although  there  is  no  assurance  that  a 
 merged  Nextel  Sprint  entity  would  be  successful,  the  combination  of  the  two  licensees  financial  resources  suggests  that  the  merged  entity  would  be  better  equipped  to  bear 
 the  cost  of  band  reconfiguration.  Accordingly,  we  decline  to  revisit  the  fair  market  value  of  the  1.9  GHz  spectrum  based  on  any  alleged  cost  savings  Nextel  will  receive  as  a 
 consequence  of  the  merger.  As  noted  in  paragraph  79  supra,  considerations  of  administrative  finality  preclude  our  re-  evaluating  our  estimates  every  time  there  is  a 
 financial  event  in  the  wireless  industry  that  could  bear  on  the  value  of  the  1.9  GHz  spectrum.  229  We  also  reject,  as  speculative  and  unsupported,  Duncans  claim  that  the 
 Commission  intended  to  solve  the  interference  problems  in  the  800  MHz  band  by  having  Nextel  migrate  its  current  network  to  the  1.9  GHz  band.  Neither  the  800  MHz 
 R&  O  nor  the  Supplemental  Order  reflect  such  an  intention. 
 83.  Finally,  we  reject  Guskeys  argument  that  we  should  refrain  from  assigning  Nextel  1.9  GHz  spectrum  until  completion  of  band  reconfiguration.  230  We  believe  that 


 the  800  MHz  R&  O  imposes  sufficient  conditions  on  the  1.9  GHz  license  to  ensure  that  Nextel  will  perform  its  band  reconfiguration  obligations.  231 


 J.  800  MHz  Spectrum  Rights  Valuation 
 84.  As  one  component  of  its  value  for  value  analysis,  the  Commission  estimated  the  market  value  of  the  800  MHz  spectrum  rights  that  Nextel  would  relinquish  as  a  result 


 of  band  reconfiguration.  232  Parties  ask  us  to  reconsider  this  valuation,  arguing  that  the  Commission  overvalued  Nextels  General  Category  spectrum  rights,  and  should  not 


 228  See  Duncan  PFR  (of  R&  O)  at  6-  7;  Duncan  Reply  at  4-  5.  Duncan  only  cites  a  recent  report  in  the 
 Wall  Street  Journal  as  the  basis  for  his  argument. 
 229  See  also    79,  supra;  800  MHz  R&  O,  19  FCC  Rcd  at  15105-  25    279-  332. 


 230  See  Guskey  PFR  (of  R&  O)  at  4. 
 231  See  800  MHz  R&  O,  19  FCC  Rcd  at  15081-  82    214. 
 232  See  id.,  19  FCC  Rcd  at  15117-  21    314-  323. 
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 have  credited  Nextel  for  restricting  its  use  of  the  800  MHz  band  at  the  ESMR  band  edge  and  Nextels  costs  for  new  filters  for  Nextel  cells  operating  there.  233 
 1.  General  Category  Spectrum  Rights 
 85.  The  Commission  established  a  baseline  value  of  $1.70  per  MHz-  pop  for  contiguous  spectrum  in  the  800  MHz  band  and  applied  this  value  to  Nextels  General 


 Category  spectrum.  234  It  discounted  Nextels  interleaved  spectrum  by  12.5  percent  because  Nextel  would  likely  experience  reduced  capacity  while  operating  on  interleaved 
 spectrum.  235  The  reduced  capacity  stems  from  the  fact  that,  on  interleaved  channels,  Nextel  must  limit  its  operations  to  avoid  causing  out-  of-  band  emission  (OOBE) 
 interference  to  adjacent  channel  licensees.  236 
 86.  Some  parties  claim  that  the  Commission,  in  addition  to  applying  a  discount  for  channels  in  the  interleaved  portion  of  the  band,  should  have  applied  a  similar  discount 


 to  Nextels  current  General  Category  spectrum  rights.  237  We  reject  these  claims  because  they  fail  to  recognize  that  there  are  far  fewer  site-  based  incumbents  in  the 
 General  Category  than  in  the  interleaved  channels,  and  hence  fewer  licensees  subject  to  potential  interference.  Moreover,  the  Commission  specifically  accounted  for  these 
 site-  based  incumbents  when  it  accepted  Nextels  granular  data  on  usable  channels  in  the  General  Category.  238 


 2.  Credit  for  Operational  Restrictions  at  the  Edge  of  ESMR  Portion  of  the  Band 
 87.  In  the  800  MHz  R&  O,  the  Commission  granted  Nextel  a  credit  for  the  operational  restrictions  that  Nextel  would  encounter  at  the  bottom  edge  of  its  contiguous 
 800  MHz  ESMR  spectrum  in  the  817-  824  MHz/  862-  869  MHz  band  segment  because  of  the  need  to  limit  out-  of-  band  emissions  (OOBE).  The  Commission  concluded  that  these 
 restrictions  would  effectively  limit  Nextels  use  of  half  a  megahertz  of  its  ESMR  spectrum  after  rebanding.  239  We  disagree  with  the  contention  that  this  credit  was 


 233  See  Guskey  PFR  (of  R&  O)  at  7-  8.  We  disagree  with  Guskeys  assertion  that  the  Commission  should 
 not  have  given  Nextel  credit  for  spectrum  that  Nextel  Partners  will  relinquish.  Id.  at  9-  10.  Nextel  Partners  and  Nextel  jointly  agreed  that  this  is  how  the  Commission  should  apportion  that  credit.  See  Comments  of  Nextel 


 Communications,  Inc.,  and  Nextel  Partners  Inc.,  filed  Dec.  2,  2004  at  9-  10.  We  decline  to  overturn  that  agreement. 


 234  See  800  MHz  R&  O,  19  FCC  Rcd  at  15117    315. 
 235  See  id.,  19  FCC  Rcd  at  15118-  19    318. 
 236  See  id. 
 237  See,  e.  g.,  Guskey  PFR  (of  R&  O)  at  7. 
 238  See  Supplemental  Order,  19  FCC  Rcd  25134-  35    31  n.  69. 
 239  Id.,  19  FCC  Rcd  at  15118    316. 
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 inappropriate  because  Nextel  already  had  been  given  credit  for  relinquishing  its  Guard  Band  and  Expansion  Band  spectrum  below  817/  862  MHz.  240  This  argument  fails  to  take 
 into  account  that  there  will  be  stations  operating  in  the  Guard  Band  and  Expansion  Band,  and  that  Nextel  must  afford  them  interference  protection,  albeit  on  a  sliding  scale 
 starting  below  the  upper  portion  of  the  Guard  Band.  241  To  achieve  this  protection,  Nextel  must  avoid  the  use  of  certain  channels  in  the  lower  portion  of  the  ESMR  band,  or 
 provide  filtering  equipment  for  cells  operating  there.  We  therefore  conclude  that  the  Commission  properly  took  these  factors  into  account  when  it  performed  its  valuation 
 calculation. 
 3.  Credit  for  Installing  Filters 
 88.  Guskey  argues  that  by  crediting  Nextel  for  the  cost  of  filters  Nextel  will  install  to  protect  non-  cellular  systems  operating  below  817  MHz/  862  MHz,  the  Commission 


 inappropriately  gave  Nextel  credit  for  costs  it  would  incur  in  any  event  to  comply  with  Commission  regulations.  242  As  the  Commission  noted  in  the  800  MHz  R&  O,  Nextel 
 must  extensively  modify  its  systems  to  accommodate  band  reconfiguration.  243  When  the  Commission  directed  Nextel  to  confine  its  ESMR  operations  to  frequencies  above 
 817/  862  MHz,  it  recognized  that,  at  the  ESMR/  non-  ESMR  intersection,  Nextel  would  have  to  install  additional  filtering  at  its  cell  sites  if  it  was  to  avoid  interference  to  stations 
 in  the  Guard  Band,  immediately  below.  244  Assuming,  arguendo,  that  the  expenses  that  Nextel  must  incur  relate  to  compliance  with  the  Commissions  rules,  they  are  actual 
 expenses,  nonetheless,  that  Nextel  is  incurring  as  a  direct  consequence  of  band  reconfiguration.  Accordingly,  the  Commission  properly  factored  the  cost  of  such  filtering 
 equipment  into  its  value-  for-  value  analysis.  We  therefore  deny  this  element  of  Guskeys  petition. 


 K.  EA  and  Site-  Based  Vacated  Spectrum 
 89.  Pursuant  to  the  800  MHz  R&  O,  Nextel  will  relinquish  all  of  its  800  MHz  spectrum  holdings  below  817/  862  MHz  as  part  of  band  reconfiguration.  245  Pursuant  to 


 the  Supplemental  Order  and  the  decisions  we  take  in  the  instant  MO&  O,  other  EA  licensees  may  also  relocate  their  EA  and,  in  some  instances,  site-  based  holdings  from 
 the  lower  portion  of  the  800  MHz  band  into  the  ESMR  band  segment.  246  Should  any  of 
 240  Guskey  PFR  (of  R&  O)  at  8. 


 241  See  800  MHz  R&  O,  19  FCC  Rcd  at  15054-  55    158. 
 242  See  Guskey  PFR  (of  R&  O)  at  8;  800  MHz  R&  O,  19  FCC  Rcd  at  15113-  14    301-  302. 
 243  See  800  MHz  R&  O,  19  FCC  Rcd  at  15113-  14    301-  302. 
 244  Id. 
 245  See  800  MHz  R&  O,  19  FCC  Rcd  at  14977    11. 
 246  See  generally    10-  28  supra. 
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 the  vacated  spectrum  (EA  or  site-  based)  consist  of  public  safety  pool  channels,  those  channels  will  remain  in  the  public  safety  pool  and  only  eligible  public  safety  entities  may 
 apply  for  them.  Non-  public  safety  pool  vacated  spectrum  (EA  or  site-  based)  will  be  available  for  three  years  only  to  public  safety  eligibles,  and  in  the  following  two  years, 
 only  public  safety  and  CII  eligibles  may  apply  for  such  channels.  247  The  three-  year  and  two-  year  (cumulatively  five-  year)  periods  must  be  measured  from  the  date  that  band 
 reconfiguration  is  completed  in  a  given  NPSPAC  region.  248  In  response  to  the  requests  of  several  parties,  249  we  note  that  the  construction  requirements  of  Section  90.155  of  our 
 rules  continue  to  apply  to  these  channels,  including  those  pertaining  to  the  ability  of  public  safety  licensees  to  seek  extended  implementation  pursuant  to  section  90.629  of 
 our  rules.  250 
 90.  Because  of  the  limitations  on  public  safety  entities  operating  in  the  Guard  Band  and  the  Expansion  Band,  the  foregoing  eligibility  restriction  applies  only  to  vacated 


 spectrum  below  the  Expansion  Band.  251  Vacated  spectrum  in  the  Expansion  Band  or  Guard  Band  will  be  open  to  any  entity  eligible  for  licensing  on  these  channels.  For 
 instance,  a  B/  ILT  channel  in  the  Expansion  Band  which  is  vacated  by  a  relocating  EA  licensee  will  be  available  after  band  reconfiguration  for  licensing  to  any  B/  ILT  eligible.  252 


 91.  We  appreciate  the  concern  raised  by  the  American  Electric  Power  Company  that  public  safety  or  CII  licensees  could  acquire  channels  pursuant  to  the  restricted 
 eligibility  provisions  discussed  above  and  then  flip  the  licenses  to  entities  that  otherwise  would  be  ineligible,  e.  g.,  transferees  seeking  to  use  the  channels  for 


 247  See  47  C.  F.  R.    90.617(  g)  (as  amended  in  Appendix  B  infra).  Limited  eligibility  will  also  apply  to 
 channels  vacated  by  licensees  choosing  to  relocate  to  the  Guard  Band.  See  47  C.  F.  R.    90.617(  h)  (as  amended  in  Appendix  B  infra). 


 248  See  800  MHz  R&  O,  19  FCC  Rcd  at  15052    152;  47  C.  F.  R.    90.615,  90.617(  g).  While  the 
 Commission  originally  restricted  eligibility  to  this  vacated  spectrum  relative  to  the  effective  date  of  the  800  MHz  R&  O,  it  subsequently  modified  this  date  to  ensure  that  all  public  safety  and  CII  licensees  enjoy  the  same  temporal 


 amount  of  exclusive  access  to  ESMR-  vacated  spectrum  following  the  conclusion  of  band  reconfiguration  in  a  NPSPAC  region.  See  Supplemental  Order,  19  FCC  Rcd  at  25145  58. 


 249  See  Petition  for  Clarification  of  American  Electric  Power  Company,  Inc.,  filed  Dec.  21,  2004  (AEP 
 PFR  (of  R&  O))  at  6;  Opposition  to  Petition  for  Clarification  of  American  Electric  Power  Company,  Inc.,  filed  by  the  Association  of  Public-  Safety  Communications  Officials-  International,  Inc.,  International  Association  of  Chiefs 


 of  Police,  International  Association  of  Fire  Chiefs,  International  Municipal  Signal  Association,  Inc.,  Major  Cities  Chiefs  Association,  Major  County  Sheriffs  Association,  and  National  Sheriffs  Association,  filed  Apr.  21,  2005 
 (APCO  Opposition)  at  2. 
 250  Extended  implementation  refers  to  the  ability  of  licensees  to  request  a  period  of  up  to  five  years  to 
 place  their  systems  in  operation.  See  47  C.  F.  R.    90.629. 
 251  See  47  C.  F.  R.    90.617(  g),  (h). 


 252  Cf.  47  C.  F.  R.    90.615. 
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 CMRS.  253  Such  conduct  would  be  inconsistent  with  Commissions  intention  in  this  proceeding.  While  we  decline  to  take  a  specific  action  here  such  as  requiring  a 
 holding  period  we  will  monitor  developments  and  stand  ready  to  take  action  in  the  future  if  the  public  safety/  CII  access  provision  is  abused. 


 92.  In  the  Supplemental  Order,  the  Commission  noted  that  it  will  issue  a  public  notice  specifying  when  entities  may  begin  filing  for  vacated  spectrum  in  a  given 
 NPSPAC  region.  254  We  will  issue  such  a  public  notice  when  reconfiguration  is  complete  in  a  given  NPSPAC  region.  255  The  release  date  of  the  public  notice  will  serve  as  the 
 start  date  for  the  limited  five-  year  eligibility  clock,  (i.  e.,  three  years  for  public  safety  and  the  following  two  years  for  public  safety  and  CII).  We  delegate  to  the  Chief  of  the 
 Wireless  Bureau  the  authority  to  issue  such  public  notices. 
 93.  Exelon  seeks  reconsideration  of  the  Commissions  decision  not  to  afford  CII  entities  the  same  priority  for  obtaining  EA  Incumbent-  vacated  spectrum  as  public  safety 


 entities.  256  We  decline  to  do  so  because  the  Commission  has  repeatedly  stressed  that  one  of  the  paramount  goals  of  this  proceeding  is  to  provide  additional  800  MHz 
 spectrum  that  can  be  quickly  accessed  by  public  safety  agencies  and  rapidly  integrated  into  their  existing  systems.  257  As  noted  in  paragraph  45,  supra,  the  communications  of 
 public  safety  entities  and  CII  entities  are  readily  distinguishable,  i.  e.,  the  communications  of  CII  licensees  relate  primarily  to  their  core  businesses  and  only 
 occasionally  matters  affecting  public  safety,  whereas  public  safety  licensees  have,  as  their  central  purpose,  the  use  of  radio  communications  to  protect  life  and  property.  258 
 Therefore,  we  deny  Exelons  petition. 
 94.  We  also  decline  to  require  public  safety  agencies  applying  for  EA  incumbent-vacated  spectrum  to  abide  by  a  frequency  plan  derived  by  an  800  MHz  Regional 


 Planning  Committee  (RPC).  259  We  have  not  been  shown  that  the  benefit  of  such  a  plan  would  be  commensurate  with  the  cost,  complexity,  and  delay  that  implementing  it  would 
 be  likely  to  entail.  We  note  that  the  Commission  assigned  the  TA  the  responsibility  of 


 253  See  AEP  PFR  (of  R&  O)  at  6. 
 254  See  Supplemental  Order,  19  FCC  Rcd  25145    58. 
 255  The  determination  of  whether  or  not  band  reconfiguration  will  be  deemed  substantially  complete  is 
 highly  fact-  dependent  and  will  be  determined  at  the  Commissions  discretion  at  the  time  the  Public  Notice  is  issued. 


 256  See  Petition  for  Reconsideration,  filed  Dec.  22,  2004,  by  Exelon  Corporation  (Exelon  PFR  (of  R&  O)) 
 at  5. 
 257  See  800  MHz  R&  O,  19  FCC  Rcd  at  14973    2. 


 258  See  47  U.  S.  C.  337(  f)  (definition  of  public  safety  services). 
 259  See  APCO  Opposition  at  2-  3. 
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 choosing  channel  assignments  for  relocating  licensees  and  we  expect  the  TA  to  do  so  in  an  efficient  manner.  We  also  note  that  the  Commission  developed  RPCs  specifically  to 
 administer  the  NPSPAC  frequencies,  which  consisted  of  large  blocks  of  vacant  spectrum.  The  RPC  construct  would  be  of  questionable  value  if  applied  to  EA-  vacated 
 channels  scattered  throughout  spectrum  occupied  by  existing  B/  ILT,  public  safety  and  conventional  SMR  systems. 


 L.  Application  Freeze 
 95.  In  the  800  MHz  R&  O,  the  Commission  stated  that  it  would  freeze  the  processing  of  applications  on  a  NPSPAC  region-  by-  NPSPAC  region  basis  and  that  the 


 freeze  would  correspond  to  the  relocation  negotiation  schedule.  260  Subsequently,  the  TA  provided  a  proposed  two-  part  relocation  schedule  that  contemplated  two  separate 
 negotiation  periods  in  each  NPSPAC  region.  The  first  negotiation  period  applied  to  licensees  outside  the  original  NPSPAC  band  segment,  and  the  second  schedule  applied 
 to  licensees  currently  located  within  the  original  NPSPAC  band  segment.  The  Bureau  concurred  in  the  TAs  recommendations.  261  In  a  subsequent  Public  Notice,  the  Bureau 
 explained  that  under  the  two-  part  negotiation  schedule,  each  NPSPAC  region  would  undergo  two  freeze  periods,  one  affecting  licensees  operating  outside  the  original 
 NPSPAC  band  segment  and  the  second  affecting  licensees  within  the  original  NPSPAC  band  segment.  262  The  Bureau  stated  that  the  two-  freeze  approach  would  make  band 
 reconfiguration  more  efficient,  and  minimize  any  adverse  effect  that  a  longer-  term  single  freeze  period  would  have  on  incumbent  licensees  and  new  applicants.  263 


 96.  In  a  joint  petition  for  reconsideration  filed  by  a  group  of  public  safety  organizations,  we  are  requested  to  further  clarify  the  provision  in  the  Freeze  Clarification 
 PN  concerning  which  stations  must  be  frozen.  264  Specifically,  petitioners  maintain  that 
 260  800  MHz  R&  O,  19  FCC  Rcd  at  15078    204. 
 261  See  Wireless  Telecommunications  Bureau  Approves  the  Basic  Reconfiguration  Schedule  put  Forth  in 
 the  Transition  Administrator's  800  MHz  Regional  Prioritization  Plan,  WT  Docket  No.  02-  55,  Public  Notice,  DA  05-  619,  70  Fed.  Reg.  21786  (2005).  The  Reconfiguration  Schedule  filed  by  the  TA  is  available  on  the 


 Commissions  800  MHz  band  reconfiguration  web  page  at  http://  www.  800MHz.  gov.  See  also  Wireless  Telecommunications  Bureau  Announces  That  800  MHz  Band  Reconfiguration  Will  Commence  June  27,  2005,  in 
 the  NPSPAC  Regions  Assigned  to  Wave  1  and  Specifies  800  MHz  Reconfiguration  Benchmark  Compliance  Dates,  Public  Notice,  DA  05-  1546,  rel.  May  27,  2005  (Starter  PN). 


 262  See  Wireless  Telecommunications  Bureau  Outlines  Applications  Freeze  Process  For  Implementation 
 of  800  MHz  Band  Reconfiguration,  Public  Notice,  DA  05-  1340  (WTB  May  11,  2005)  (Freeze  Clarification  PN). 
 263  Id.  at  2. 


 264  See  Petition  for  Clarification  or  Partial  Reconsideration  of  Freeze  Process  for  Implementation  of  800 
 MHz  Band  Reconfiguration,  filed  by  Association  of  Public-  Safety  Communications  Officials-  International-  Inc.,  International  Association  of  Chiefs  of  Police,  International  Association  of  Fire  Chiefs,  International  Municipal 


 Signal  Association,  Inc.,  Major  Cities  Chiefs  Association,  Major  County  Sheriffs  Association  and  National  Sheriffs  Association  (Public  Safety  Organizations  Petition)  at  2-  3  (May  16,  2005). 
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 it  is  unnecessary  to  include  public  safety  channels  in  the  interleaved  portion  of  the  band  (i.  e.,  809.75-  815/  854.75-  860  MHz)  in  the  freeze,  and  therefore  request  that  such 
 stations  be  entirely  exempted  from  the  application  freeze.  265 
 97.  We  acknowledge  that  most  of  the  applications  for  license  modification  to  be  filed  by  public  safety  licensees  will  be  for  channels  in  the  new  NPSPAC  band  segment 


 at  806-  809/  851-  854  MHz.  However,  there  will  also  be  instances  where  public  safety  entities  (e.  g.,  public  safety  systems  currently  located  in  the  Guard  Band  and  the 
 Expansion  Band)  will  be  relocated  into  channels  in  the  809-  815/  854-  860  MHz  portion  of  the  band.  266  In  order  for  the  TA  to  determine  the  channels  to  which  these  systems  are  to 
 be  relocated,  the  TA  must  have  a  stable  spectrum  environment  in  which  licensees  are  not  allowed  to  change  channels  or  expand  their  coverage.  Otherwise,  for  example,  if 
 the  TA  were  to  select  channel  X  for  a  relocating  licensee,  mutually  exclusive  applications  could  be  filed  and  granted  while  the  relocating  licensee  is  evaluating  the 
 suitability  of  channel  X  as  part  of  the  negotiation  process,  which  then  would  have  to  be  re-  started  once  the  TA  selected  a  new  channel.  This  scenario  could  be  replicated 
 multiple  times,  particularly  in  large  and  heavily  populated  NPSPAC  regions  where  usable  channels  are  at  a  premium.  The  resultant  delay  and  expense  would  be 
 inconsistent  with  the  Commissions  express  goal  in  this  proceeding  that  band  reconfiguration  be  completed  within  a  thirty-  six-  month  timeframe.  Accordingly,  we  deny 
 the  petition  for  reconsideration.  We  remain,  however,  keenly  aware  of  the  vital  role  public  safety  communications  plays  in  the  protection  of  life  and  property  and  are 
 committed  to  minimize  any  disruption  the  freeze  could  cause  to  this  critical  resource.  Thus,  we  will  expedite  an  evaluation  of  requests  for  waiver  of  the  freeze  filed  by  public 
 safety  entities. 
 98.  We  also  take  this  opportunity  to  restate  that  we  will  not  accept  license  modification  applications  that  request  more  channels  than  are  necessary  to  effect  a 


 given  licensees  relocation.  267  We  also  will  not  accept  modification  applications  that  propose  to  expand  the  coverage  area  of  an  existing  system.  This  includes,  for  example, 
 modification  applications  that  seek  to  correct  the  operating  parameters  of  existing  stations,  such  as  effective  radiated  power,  antenna  elevation  or  geographical 
 coordinates,  when  to  do  so  would  expand  the  licensees  currently  authorized  coverage  contours.  In  short,  modification  applications  are  limited  to  adding  the  new  agreed-  upon 
 frequencies  (i.  e.,  frequencies  consistent  with  the  TA  plan)  or  deleting  the  old  frequencies.  Thus,  licensees  are  strongly  cautioned  to  carefully  verify  the  accuracy  of 


 265  Id.  As  noted  above,  the  decision  to  freeze  channels  was  adopted  in  the  800  MHz  R&  O.  See  800  MHz 
 R&  O,  19  FCC  Rcd  at  15078    204.  Thus,  any  request  to  eliminate  certain  channels  from  the  freeze  should  have  been  filed  as  a  petition  for  reconsideration  of  the  800  MHz  R&  O.  Nevertheless,  we  will  address  this  issue  herein. 


 266  Although  most  such  relocations  will  be  to  channels  vacated  by  ESMR  licensees,  there  is  no  certainty 
 that  there  will  be  an  adequate  number  of  such  channels  to  accommodate  all  public  safety  relocations. 
 267  800  MHz  R&  O,  19  FCC  Rcd  at  15078    204. 
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 their  current  authorizations  and  file  any  corrective  applications  prior  to  the  time  the  band  is  frozen  in  their  NPSPAC  regions  or  after  the  freeze  is  lifted.  268 
 M.  Cost  Reporting  and  Accounting  Issues 
 99.  Pursuant  to  the  800  MHz  R&  O,  the  TA  is  required  to  file  quarterly  progress  reports  with  the  Commission  in  addition  to  an  annual  report  to  be  filed  on  each 


 anniversary  of  the  effective  date  of  the  800  MHz  R&  O.  The  TA  proposes  a  modification  of  the  schedule  to  coordinate  the  reporting  process  with  Securities  and  Exchange 
 Commission  (SEC)  financial  reporting  regulations,  applicable  to  Nextel,  that  forbid  public  disclosure  of  material  financial  information  before  Nextels  quarterly  and  annual 
 submissions  are  made  to  the  SEC.  269  The  TA  proposes  that  it  file  its  quarterly  and  annual  reports,  which  will  contain  material  financial  information  concerning  Nextel,  with 
 the  Commission  on  the  first  business  day  following  Nextels  anticipated  quarterly  and  annual  filings  with  the  SEC.  270  We  believe  that  the  TAs  request  is  reasonable,  and 
 amend  section  90.676  of  our  rules  accordingly.  271 
 N.  BAS/  MSS  Issues 
 1.  NAB/  MSTV/  SBE  and  Nextel  Petitions  for  Reconsideration  and  Nextel/  MSTV/  NAB  Request  for  Declaratory  Ruling 


 100.  The  800  MHz  R&  O  granted  Nextel  the  use  of  spectrum  at  1.9  GHz  and  established  provisions  for  Nextels  clearing  the  1990-  2025  MHz  band  segment  of 
 Broadcast  Auxiliary  Service  (BAS)  incumbents.  272  Specifically,  Nextels  licenses  are 


 268  See  Supplemental  Order,  19  FCC  Rcd  at  25148    65.  Applications  to  correct  errors  in  data  in  the 
 Commissions  licensing  database  may  be  filed  after  reconfiguration  has  been  completed  in  the  relevant  NPSPAC  region. 


 269  See  Motion  of  800  MHz  Transition  Administrator,  LLC  to  Revise  the  Annual  Progress  Reporting 
 Schedule,  filed  June  17,  2005. 
 270  Id. 


 271  See  47  C.  F.  R.    90.676  (as  amended  in  Appendix  B  infra). 
 272  See  800  MHz  R&  O,  19  FCC  Rcd  at  15095-  15100    251-  263.  BAS  includes  mobile  TV  pickup 
 (TVPU)  stations  land  mobile  stations  used  for  the  transmission  of  TV  program  material  and  related  communications,  including  electronic  newsgathering  (ENG)  operations,  from  scenes  of  events  back  to  the  TV 


 station  or  studio  and  fixed  BAS  operations  such  as  studio-  to-  transmitter  link  (STL)  stations,  TV  relay  stations,  and  TV  translator  relay  stations.  The  majority  of  these  fixed  operations  are  in  higher  frequency  bands  allocated  to 
 the  BAS.  See  47  C.  F.  R.    74.601(  a),(  b)(  listing  classes  of  TV  broadcast  auxiliary  stations).  See  generally  47  C.  F.  R.  74.600  (Eligibility  for  license).  In  addition,  BAS  spectrum  in  the  2  GHz  band  is  authorized  for  use  by  the 
 Cable  Television  Relay  Service  (CARS)  and  the  Local  Television  Transmission  Service  (LTTS).  See  47  C.  F.  R.    74.602,  78.18(  a)(  6)  and    101.801.  For  convenience,  we  refer  to  these  services  herein  under  the  collective 
 term  BAS.  Thus,  decisions  herein  that  refer  to  BAS  also  apply  to  CARS  and  LTTS  operations  in  the  band.  The  original  2  GHz  BAS  channel  plan,  which  is  still  in  use,  is  as  follows:  Channel  1  (1990-  2008  MHz),  Channel  2 
 (continued.) 
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 conditioned  on  Nextel  following  a  relocation  procedure  based  on  a  plan  submitted  to  the  Commission  by  Nextel,  the  Association  for  Maximum  Service  Television  (MSTV),  and 
 the  National  Association  of  Broadcasters  (NAB).  273 
 101.  Prior  to  the  effective  date  of  the  800  MHz  R&  O  rules,  the  Commission  had  established  a  plan  by  which  2  GHz  Mobile  Satellite  Service  (MSS)  licensees  would 


 relocate  incumbent  BAS  operations  in  the  entire  1990-  2025  MHz  band.  274  However,  in  the  800  MHz  R&  O,  the  Commission  found  that  the  best  way  to  ensure  the  continuity  of 
 BAS,  a  critical  part  of  the  broadcasting  system  by  which  emergency  information  and  entertainment  content  is  provided  to  the  American  public,  during  the  transition  was  to 
 retain  the  existing  MSS  relocation  rules  but  also  to  overlay  procedures  by  which  Nextel  may  relocate  BAS  incumbents.  275  Therefore,  Nextel  is  also  obligated  to  clear  the  entire 
 1990-  2025  MHz  band  of  incumbent  BAS  operations.  276  The  plan  adopted  by  the  Commission  calls  for  Nextels  relocation  of  all  BAS  licensees  from  the  1990-  2025  MHz 
 band  to  comparable  facilities  within  thirty  months  after  the  effective  date  of  the  800  MHz  R&  O.  277  The  Commission  directed  Nextel  to  clear  the  1990-  2025  MHz  band  in  two 


 (Continued  from  previous  page)  (2008-  2025  MHz),  Channel  3  (2025-  2042  MHz),  Channel  4  (2042-  2059  MHz),  Channel  5  (2059-  2076  MHz), 
 Channel  6  (2076-  2093  MHz),  and  Channel  7  (2093-  2110  MHz). 
 273  See  800  MHz  R&  O,  19  FCC  Rcd  at  15131-  32    353. 


 274  See  Amendment  of  Section  2.106  of  the  Commissions  Rules  to  Allocate  Spectrum  at  2  GHz  for  use 
 by  the  Mobile-  Satellite  Service,  ET  Docket  No.  95-  18,  Second  Report  and  Order  and  Second  Memorandum  Opinion  and  Order,  15  FCC  Rcd  12315,  12365-  66    24  (2000)  (MSS  Second  R&  O).  In  2003,  the  Commission 


 reallocated  fifteen  megahertz  of  spectrum  from  MSS  in  the  1990-  2025  MHz  band  to  support  new  fixed  and  mobile  services  ten  megahertz  in  the  1990-  2000  MHz  band  and  five  megahertz  in  the  2020-  2025  MHz  band.  See 
 Amendment  of  Part  2  of  the  Commissions  Rules  to  Allocate  Spectrum  Below  3  GHz  for  Mobile  and  Fixed  Services  to  Support  the  Introduction  of  New  Advanced  Wireless  Services,  Including  Third  Generation  Wireless 
 Systems,  ET  Docket  No.  00-  258,  Third  Report  and  Order,  Third  Notice  of  Proposed  Rulemaking  and  Second  Memorandum  Opinion  and  Order,  18  FCC  Rcd  2223,  2231-  32  15  (2003)  (AWS  Third  R&  O,  Third  NPRM,  and 
 Second  MO&  O).  Given  the  need  to  provide  for  the  rapid  introduction  of  advanced  wireless  services  (AWS)  in  the  2  GHz  BAS  band,  the  Commission  modified  the  plan  that  2  GHz  MSS  licensees  were  to  follow  when  relocating 
 incumbent  BAS  licensees  in  the  1990-  2025  MHz  band.  See  Amendment  of  Section  2.106  of  the  Commissions  Rules  to  Allocate  Spectrum  at  2  GHz  for  Use  by  the  Mobile-  Satellite  Service,  ET  Docket  No.  95-  18,  Third  Report 
 and  Order  and  Third  Memorandum  Opinion  and  Order,  18  FCC  Rcd  23638,  23653-  61    29-  44  (2003)  (MSS  Third  R&  O). 


 275  See  800  MHz  R&  O,  19  FCC  Rcd  at  15094-  95    250.  In  that  regard,  the  Commission  further  modified 
 the  MSS-  BAS  relocation  plan  to  no  longer  require  BAS  licensees  in  TV  markets  31-  210  to  cease  operations  on  channels  1  and  2  (1990-  2008  MHz  and  2008-  2025  MHz,  respectively)  until  they  have  been  relocated  to  the  new 


 band  plan  at  2025-  2110  MHz.  The  Commission  found  that  this  modification  was  appropriate  to  accommodate  Nextels  entry  into  the  band  under  the  adopted  Nextel-  BAS  plan,  which  did  not  require  BAS  incumbents  in 
 markets  31  and  above  to  cease  operations  on  these  two  channels  without  receiving  compensation  prior  to  vacating  the  spectrum.  See  id.  at  15102    269. 


 276  See  800  MHz  R&  O,  19  FCC  Rcd  at  15095-  15100    251-  263. 
 277  See  id,  19  FCC  Rcd  at  15096    253.  The  Commission  subsequently  extended  this  deadline  by  forty-five 
 days  to  September  7,  2007.  See  Commission  Seeks  Comment  on  Ex  Parte  Presentations  and  Extends  Certain  (continued.) 
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 stages:  during  stage  one,  Nextel  will  relocate  all  BAS  incumbents  in  markets  where  Nextel  elects  to  deploy  1.9  GHz  service  immediately,  and  in  any  adjacent  markets  that 
 raise  BAS  inter-  market  coordination  and  interference  problems,  as  well  as  any  fixed  BAS  facilities,  regardless  of  market  size;  and  during  stage  two,  Nextel  will  relocate  BAS 
 incumbents  in  all  remaining  markets.  278 
 102.  The  Commission  required  Nextel  and  the  BAS  licensees  to  negotiate  BAS  relocation  on  two  schedules,  both  tied  to  Nextels  stage  one  and  stage  two 


 implementation.  279  The  800  MHz  R&  O  specified  that  mandatory  negotiations  in  the  stage  one  markets  had  to  be  concluded  by  July  15,  2005,  and  the  mandatory 
 negotiations  in  the  stage  two  markets  had  to  be  concluded  by  May  15,  2006.  280 
 103.  The  NAB,  MSTV  and  the  Society  of  Broadcast  Engineers,  Inc.  (SBE)  have  jointly  requested  that  the  Commission  extend  the  mandatory  negotiation  period  for 


 stage  one  BAS  relocations  to  March  21,  2006,  and  for  stage  two  relocations  to  March  21,  2007.  281  Nextel  filed  a  petition  for  reconsideration  in  support  of  this  request.  282  NAB, 
 MSTV  and  SBE  ask  that  the  Commission  adjust  the  schedule  for  mandatory  BAS  relocation  negotiations  by  tying  the  schedule  to  the  effective  date  of  the  800  MHz  R&  O, 


 (Continued  from  previous  page)  Deadlines  Regarding  the  800  MHz  Public  Safety  Interference  Proceeding  WT  Docket  No.  02-  55,  Public  Notice 
 (rel.  Oct.  22,  2004)  (October  2004  Public  Notice). 
 278  Stage-  one  relocations  are  to  be  completed  within  eighteen  months  and  stage  two  within  thirty  months 
 after  the  effective  date  of  the  800  MHz  R&  O.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15095    251.  The  Commission  subsequently  extended  these  deadlines  by  forty-  five  days.  See  October  2004  Public  Notice.  For  relocation 


 purposes,  BAS  markets  consist  of  Nielsen  Designated  Market  Areas  (DMAs)  as  they  existed  on  June  27,  2000.  MSS  Second  R&  O,  15  FCC  Rcd  at  12329-  30    42. 


 279  The  Commission  stated  that  MSS  licensees  may  voluntarily  join  in  these  negotiations  in  order  to 
 relocate  BAS  operations  in  markets  31  and  above  and  any  fixed  BAS  operations,  regardless  of  market  size.  We  encouraged  MSS  licensees  to  work  cooperatively  with  Nextel  in  these  negotiations  because  all  parties  would 


 collectively  benefit  from  the  expeditious  relocation  of  BAS  incumbents  to  the  new  band  plan.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    258. 


 280  The  original  deadlines  were  May  31,  2005  for  stage  one  relocations  and  March  31,  2006  for  stage  two 
 relocations.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    258.  The  Commission  subsequently  extended  the  mandatory  negotiation  periods  to  July  15,  2005  for  stage  one  relocations  and  May  15,  2006  for  stage  two 


 relocations.  See  October  2004  Public  Notice. 
 281  See  Letter,  dated  Dec  2,  2004,  from  Lawrence  A.  Walke,  National  Association  of  Broadcasters 
 (NAB),  David  L.  Donovan,  Association  for  Maximum  Service  Television  (MSTV)  and  Christopher  D.  Imlay,  Counsel  for  Society  of  Broadcast  Engineers,  Inc.  (SBE)  to  Marlene  H.  Dortch,  Secretary,  Federal 


 Communications  Commission  (NAB/  MSTV/  SBE  Letter). 
 282  See  Nextel  Petition  for  Clarification  and/  or  Reconsideration  dated  Dec.  22,  2004  (Nextel  Petition). 
 We  note  that  Nextel  withdrew  this  petition  except  for  the  request  to  extend  the  Nextel-  BAS  mandatory  negotiation  deadlines  as  proposed  by  the  broadcast  industry  parties.  See  Letter,  dated  Apr.  21,  2005,  from  James  B. 


 Goldstein,  Senior  Attorney,  Government  Affairs,  Nextel,  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission. 
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 as  reflected  by  the  dates  referenced  above,  thereby  giving  incumbent  BAS  licensees  and  Nextel  sufficient  time  to  negotiate  and  complete  BAS  relocation.  283  The  parties 
 claim  that  an  extension  is  necessary  because  negotiations  could  only  commence  after  Nextel  has  accepted  the  license  modifications  and  obligations  set  forth  in  the  [800  MHz 
 R&  O]  and  because  the  negotiation  clock  began  before  the  800  MHz  R&  O  became  effective,  which  shortens  the  amount  of  time  available  for  negotiation.  284  NAB,  MSTV 
 and  SBE  further  claim  that  extending  the  mandatory  negotiation  periods  should  not  affect  Nextels  other  deadlines,  i.  e.,  the  actual  completion  of  the  BAS  relocation 
 process,  filing  progress  reports,  seeking  reimbursement  from  MSS  licensees,  and  filing  the  BAS  relocation  plan.  285 


 104.  We  decline  to  extend  the  mandatory  negotiation  periods  as  the  petitioners  request.  Nextels  acceptance  of  the  license  modifications,  obligations  and  conditions 
 set  forth  in  the  800  MHz  R&  O  and  subsequent  decisions  has  now  occurred  and  thus  eliminates  uncertainty  regarding  the  timing  of  Nextels  BAS  relocation  obligations.  286 
 The  Commission  allotted  adequate  time  for  incumbent  BAS  licensees  to  prepare  for  relocation  negotiations  with  new  entrants  (e.  g.,  MSS  licensees  and  Nextel)  in  the  1990- 
 2025  MHz  band,  including  ample  time  to  inventory  their  equipment  and  coordinate  their  relocation  to  the  new  channel  plan  at  2025-  2110  MHz.  287  Moreover,  since  Nextel  is 
 required  to  complete  the  stage  one  relocation  of  BAS  licensees  by  September  7,  2006  and  the  stage  two  relocation  of  BAS  licensees  by  September  7,  2007,  extending  the 
 mandatory  negotiation  periods  to  March  21,  2006  for  stage  one  relocations  and  March  21,  2007  for  stage  two  relocations  would  place  the  negotiation  deadlines  within  six 
 months  of  the  deadlines  for  the  actual  completion  of  BAS  relocation  itself.  We  also  are  concerned  that  a  six-  month  period  may  not  be  sufficient  for  Nextel  to  complete  BAS 
 relocation  prior  to  Nextels  800  MHz  true-  up.  288  Absent  sufficient  time,  Nextel  could  be  prejudiced  by  the  inability  to  claim  credit  for  some  BAS  relocation  expenses  because 


 283  NAB/  MSTV/  SBE  Letter  at  3. 
 284  Id.  at  2. 
 285  Id.  at  3. 
 286  See  Letter,  dated  Feb.  7,  2005,  from  Tim  Donahue,  President  and  Chief  Executive  Officer,  Nextel,  to 
 Michael  K.  Powell,  Chairman,  Federal  Communications  Commission. 
 287  Under  involuntary  relocation,  a  new  MSS  entrant  may,  at  its  own  expense,  make  necessary 
 modifications  to  or  replace  an  incumbent  licensees  BAS  equipment  such  that  the  BAS  licensee  receives  comparable  performance  from  the  modified  or  replaced  equipment.  However,  under  the  mandatory  negotiation 


 periods  adopted  in  the  MSS  Third  R&  O,  the  one-  year  mandatory  negotiation  period  for  MSS  and  BAS  licensees  in  markets  1-  30  and  all  BAS  fixed  stations,  regardless  of  market  size,  has  already  passed.  It  ended  on  December  8, 
 2004.  See  MSS  Third  R&  O,  18  FCC  Rcd  at  23659-  60    42. 
 288  In  the  true  up  at  the  conclusion  of  800  MHz  band  reconfiguration,  Nextel  will  be  credited  for  the 
 cost  of  relocating  BAS  facilities,  less  the  amount,  if  any,  that  MSS  licensees  reimbursed  Nextel.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15114    304. 
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 those  expenses  could  have  occurred  after  the  true-  up  date  had  passed.  We  therefore  find  that  an  extension  of  the  mandatory  negotiation  periods  is  unnecessary  and  deny 
 NAB,  MSTV,  SBE  and  Nextels  petitions  for  reconsideration. 
 105.  Nextel,  MSTV  and  NAB  also  filed  a  petition  seeking  a  declaratory  ruling,  or  alternately,  clarification  that  Nextel  will  receive  credit  in  the  800  MHz  true-  up  process  for 


 the  costs  it  incurs  to  relocate  BAS  operations  licensed  after  June  27,  2000  but  before  November  22,  2004;  and  that  BAS  licensees  will  not  be  entitled  to  reimbursement  for 
 the  cost  of  relocating  equipment  which  is  purchased  to  supplement  existing  facilities  and  which  was  acquired  after  November  22,  2004,  with  specific  exceptions  relating  to  the 
 replacement  or  repair  of  malfunctioning  equipment.  289  SBE  and  Window  to  the  World  Communications,  Inc.  (WTTW)  filed  ex  parte  comments  in  support.  290  As  background, 
 the  Commission  decided  in  the  MSS  Second  R&  O  that  BAS  facilities  could  continue  to  operate  on  a  primary  basis  until  relocated  by  MSS  licensees  provided  that  the  receipt 
 date  of  the  initial  application  was  prior  to  June  27,  2000    the  adoption  date  of  the  MSS  Second  R&  O.  291  Initial  applications  filed  after  June  27,  2000  have  been  licensed  on  a 
 secondary  basis  and  this  condition  has  been  noted  on  the  authorization  issued  by  the  Commission  to  the  BAS  licensee.  292  The  Commission  concluded  that  new  entrants 
 would  not  be  required  to  relocate  these  operations  because  secondary  operations,  by  rule,  cannot  cause  harmful  interference  to  primary  operations  nor  claim  protection  from 
 harmful  interference  from  primary  operations.  293 
 106.  While  not  required  to  do  so,  Nextel  has  voluntarily  agreed  to  fund  the  relocation  of  the  secondary  BAS  incumbents  that  were  licensed  after  June  27,  2000  but 


 before  November  22,  2004,  so  long  as  it  receives  credit  for  these  costs  in  the  800  MHz 
 289  See  Nextel/  MSTV/  NAB  Request  for  Declaratory  Ruling  dated  Jun.  20,  2005  (Nextel/  MSTV/  NAB 
 Request). 
 290  See  SBE  Jun.  29,  2005  Ex  Parte;  WTTW  Jul.  7,  2005  Ex  Parte.  WTTW  is  the  licensee  of  a 
 noncommercial  educational  television  station  in  the  Chicago  area. 
 291  47  C.  F.  R.    2.106  Footnote  NG  156.  See  also  MSS  Second  R&  O,  15  FCC  Rcd  at  12335,    59.  This 
 relocation  process  also  applies  to  those  BAS  licenses  meeting  the  cut-  off  date  for  which  licensees  filed  subsequent  facilities  modification  applications. 


 292  Authorizations  granted  by  the  Commission  after  June  27,  2000  included  the  following  language  as  a 
 special  condition:  In  accordance  with  Paragraph  59  of  the  Commissions  Second  Report  and  Order  and  Second  Memorandum  Opinion  and  Order  in  ET  Docket  No.  95-  18,  and  Section  2.106,  Table  of  Frequency  Allocations, 


 footnote  NG156,  as  amended,  any  new  frequencies  in  or  overlapping  the  2008-  2025  MHz  frequency  band  are  permitted  only  on  a  basis  secondary  to  the  Mobile-  Satellite  Service  (MSS)  and  will  be  required  to  cease  operation 
 during  Phase  2  of  the  relocation  to  accommodate  MSS.  Further,  all  new  frequencies  in  or  overlapping  the  greater  2008-  2110  MHz  frequency  band  will  be  required  to  relocate  consistent  with  the  Phase  1  and  Phase  2  band  plans 
 adopted  jointly  by  the  BAS  Frequency  Coordinator  and  Existing  Licensees  of  their  Nielsen  Designated  Market  Area,  as  described  in  Section  75.690(  e),  and  will  not  be  eligible  for  relocation  by  an  MSS  entity,  but  each  licensee 
 must  prepare  for  such  relocations  at  its  own  expense. 
 293  47  C.  F.  R.    2.105(  c). 
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 true-  up  process.  294  Nextel,  MSTV,  and  NAB  argue  that,  because  Nextel  is  coordinating  the  BAS  relocation  on  a  market-  by-  market  basis,  there  are  public  interest  benefits  to 
 allowing  Nextel  to  relocate  these  BAS  licensees  and  to  obtain  credit  for  the  relocation.  Specifically,  if  there  are  few  (or  no)  BAS  incumbents  left  in  a  particular  market  that  could 
 interfere  with  or  otherwise  complicate  the  deployment  of  Nextels  operations  in  the  band,  it  would  help  ensure  that  the  BAS  relocation  is  completed  without  complication  by 
 2007,  will  minimize  disruption  to  BAS  operations,  and  will  simplify  negotiations  with  BAS  incumbents.  295  Nextel,  MSTV,  and  NAB  argue  that,  because  Nextel  is  coordinating  the 
 BAS  relocation  on  a  market-  by-  market  basis,  there  are  public  interest  benefits  to  allowing  Nextel  to  relocate  these  BAS  licensees  and  to  obtain  credit  for  the  relocation. 
 Specifically,  if  there  are  few  (or  no)  BAS  incumbents  left  in  a  particular  market  that  could  interfere  with  or  otherwise  complicate  the  deployment  of  Nextels  operations  in  the 
 band,  it  would  help  ensure  that  the  BAS  relocation  is  completed  without  complication  by  2007,  will  minimize  disruption  to  BAS  operations,  and  will  simplify  negotiations  with  BAS 
 incumbents.  296  Nextel,  MSTV  and  NAB  also  claim  the  costs  of  relocating  these  BAS  licensees  (which  represent  5.5%  of  all  BAS  licensees  that  will  be  relocated)  would  be 
 minimal  (4.5%  of  the  estimated  total  cost  of  BAS  relocation).  297  In  addition,  Nextel,  MSTV  and  NAB  note  that  MSS  licensees  would  not  be  obligated  to  pay  for  any 
 relocation  of  secondary  BAS  operations  and  Nextel  would  not  seek  reimbursement  from  MSS  licensees  for  the  costs  to  relocate  these  secondary  BAS  operations.  298 


 107.  We  note  that  we  do  not  alter  the  well  established  principle  that  secondary  licensees  are  not  entitled  to  relocation  or  reimbursement.  Rather,  the  only  issue  we  are 
 considering  here  is  whether  to  allow  Nextel  to  obtain  credit  for  the  costs  of  relocating  secondary  BAS  incumbents  licensed  before  November  22,  2004  in  the  800  MHz  true-  up 
 process  based  on  a  voluntary  relocation  agreement  between  the  parties.  We  find  that  the  public  interest  is  best  served  by  Nextels  timely  clearing  of  all  incumbent  operations 
 in  the  1990-  2025  MHz  band,  which  in  turn  will  facilitate  the  timely  transition  of  the  800  MHz  band  as  well.  Furthermore,  the  costs  associated  with  relocating  these  secondary 
 BAS  licensees  do  not  significantly  alter  the  total  costs  associated  with  implementing  the  800  MHz  relocation  plan.  For  these  reasons,  we  will  allow  Nextel  to  claim  credit  for  the 
 costs  to  relocate  secondary  BAS  incumbents  licensed  before  November  22,  2004,  as  the  parties  have  agreed.  We  note  that  MSS  licensees  will  not  be  obligated  to  reimburse 
 Nextel  for  the  costs  to  relocate  these  secondary  BAS  licensees.  Our  decision  today  does  not  otherwise  alter  the  relocation  obligations  of  MSS  licensees  with  respect  to 


 294  Nextel/  MSTV/  NAB  Request  at  3. 
 295  Nextel/  MSTV/  NAB  Request  at  3. 
 296  Id.  at  3-  4. 
 297  Nextel/  MSTV/  NAB  Request  at  5. 
 298  Id.  at  6. 
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 primary  BAS  incumbents,  nor  alter  our  overall  relocation  policy  that  secondary  operations  are  not  entitled  to  relocation  or  reimbursement  from  new  entrants. 
 108.  With  respect  to  Nextel,  MSTV  and  NABs  request  for  declaratory  ruling  or  clarification  that  Nextel  is  not  required  to  reimburse  BAS  licensees  for  the  costs  of 
 incremental  equipment  acquired  after  November  22,  2004,  unless  acquired  for  replacement  or  repair,  we  find  no  action  on  our  part  is  necessary  at  this  time.  The 
 Commission  has  designed  its  relocation  policy  to  allow  the  parties  flexibility  to  negotiate  relocation  terms  during  the  mandatory  negotiation  process,  subject  to  the  requirement 
 to  negotiate  in  good  faith,  and  disagreements  are  best  addressed  on  a  case-  by-  case  basis.  299  Because  Nextel,  the  new  entrant,  and  the  various  entities  representing  BAS 
 incumbents  have  all  agreed  to  interpret  the  Commissions  comparable  facility  requirement  for  relocation  in  this  manner,  we  find  that,  as  a  practical  matter,  there  is  no 
 need  for  a  resolution  by  the  Commission  when  no  disagreement  is  present. 
 2.  TMI/  TerreStar  Petition  for  Clarification 
 109.  Under  the  800  MHz  R&  O,  Nextel  is  entitled  to  seek  pro  rata  reimbursement  for  eligible  costs  incurred  in  clearing  incumbent  BAS  licensees  in  the 


 1990-  2025  MHz  band  from  MSS  licensees  that  commence  operation  anytime  prior  to  the  thirty-  six  month  800  MHz  band  reconfiguration  period.  300  TMI  and  TerreStar  jointly 
 request  that  the  Commission  either  (  i)  relieve  an  MSS  party  that  enters  the  market  after  Nextels  thirty-  month  BAS  relocation  period  from  having  any  reimbursement  obligation 
 to  Nextel,  or  (ii)  at  a  minimum,  clarify  that  the  MSS  reimbursement  obligation  ends  thirty-  six  months  after  the  effective  date  of  the  [800  MHz  R&  O]  i.  e.,  January  21,  2008.  301 
 These  parties  argue  that  it  would  be  more  equitable  to  tie  the  MSS  reimbursement  obligation  to  the  thirty-  month  BAS  relocation  period  than  to  the  thirty-  six  month  800  MHz 
 band  reconfiguration  period.  302  Nextel  contends,  however,  that  the  public  interest  is  best  served  by  synchronizing  the  MSS  reimbursement  obligation  with  the  completion  of  800 
 MHz  reconfiguration  and  the  true-  up  process  established  by  the  [800  MHz  R&  O].  303  Nextel  also  contends  that  granting  TMI  and  TerreStars  request  would  give  MSS 
 licensees  an  incentive  to  delay  the  initiation  of  service  simply  to  avoid  the  reimbursement  obligation.  304 


 299  See  47  C.  F.  R.    101.73. 
 300  See  800  MHz  R&  O,  19  FCC  Rcd  at  15099    261. 
 301  See  TMI  Communications  Company  (TMI)  and  TerreStar  Networks  (TerreStar)  Joint  Request  for 
 Clarification  dated  Dec.  22,  2004  at  2  (TMI/  TerreStar  PFR  (of  R&  O));  see  also  TMI  and  TerreStar  Reply  to  Nextel  Opposition  dated  May  2,  2005  (TMI/  TerreStar  Reply). 


 302  See  TMI/  TerreStar  PFR  (of  R&  O)  at  5-  6. 
 303  See  Nextel  Opposition  at  22. 
 304  Id. 
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 110.  We  first  address  TMI  and  TerreStars  argument  that  an  MSS  licensee  that  enters  after  Nextels  thirty-  month  BAS  relocation  deadline  should  be  relieved  of  its 
 reimbursement  obligation  to  Nextel  because  Nextel  would  be  receiving  credit  for  its  relocation  costs  in  the  800  MHz  true-  up  process  in  any  event.  305  As  noted  in  the  800 
 MHz  R&  O,  under  the  Nextel-  BAS  relocation  plan,  Nextel  agreed  to  pay  the  upfront  BAS  relocation  costs  and  requested  that  the  Commission  require  MSS  licensees  in  the  1990- 
 2025  MHz  band  thereafter  to  pay  their  pro  rata  share  of  the  cost  of  clearing  this  spectrum.  306  Nextel  proposed  that  the  payments  by  other  entrants  be  made  to  the  U.  S. 
 Treasury.  307  The  Commission  declined  to  adopt  that  proposal  because  it  was  inconsistent  with  the  core  objective  of  relocating  BAS  licensees  to  comparable  facilities, 
 an  objective  that  is  best  met  by  allowing  Nextel  to  relocate  incumbent  BAS  licensees  in  a  manner  consistent  with  the  Commissions  existing  rules  that  also  allow  MSS  licensees 
 to  relocate  BAS  incumbents.  308  We  see  no  benefit  in  a  proposal  that  would  relieve  an  MSS  licensee  from  paying  its  established  BAS  relocation  obligation  simply  because 
 Nextel  will  be  receiving  credit  for  relocation  costs  at  the  end  of  the  800  MHz  band  reconfiguration  process. 


 111.  Further,  as  described  in  the  MSS  Second  R&  O,  800  MHz  R&  O  and  AWS  Sixth  R&  O,  the  Commission  has  adhered  to  the  cost  sharing  principle  that  the  licensees 
 that  ultimately  benefit  from  the  spectrum  cleared  by  the  first  entrant  shall  bear  the  cost  of  reimbursing  the  first  entrant  for  the  accrual  of  that  benefit.  309  Thus,  the  initial  entrant 
 may  seek  reimbursement  from  subsequent  entrants  for  the  proportional  share  of  the  initial  entrants  costs  in  clearing  BAS  spectrum  at  1990-  2025  MHz,  on  a  pro  rata  basis 
 according  to  the  amount  of  spectrum  other  new  entrants  are  assigned.  The  Commission  assigned  Nextel  rights  to  five  megahertz  of  spectrum,  MSS  entities  rights 
 to  twenty  megahertz  of  spectrum  and  AWS  entities  rights  to  ten  megahertz  of  spectrum.  310  Under  the  equitable  reimbursement  calculus,  Nextel,  as  the  first  entrant,  is 
 entitled  to  seek  pro  rata  reimbursement  of  eligible  clearing  costs  from  subsequent  entrants,  including  MSS  licensees.  Therefore:  (a)  the  Nextel  pro  rata  share  represents 
 the  cost  to  relocate  BAS  licensees  from  one-  seventh  of  the  spectrum  (reflecting  that  Nextel  will  have  the  use  of  five  megahertz,  or  one-  seventh  of  the  thirty-  five  megahertz 
 being  cleared),  (b)  the  MSS  licensees  pro  rata  share,  collectively,  represents  the  cost  to 


 305  See  TMI/  TerreStar  PFR  (of  R&  O)  at  5-  6. 
 306  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    260. 
 307  See  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  8,  submitted  in  WT  Docket  No.  02-  55  and  ET 
 Docket  Nos.  00-  258  and  95-  18. 
 308  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    260,  n.  628. 


 309  See  MSS  Second  R&  O,  15  FCC  Rcd  at  12336-  38    64-  69;  800  MHz  R&  O,  19  FCC  Rcd  at  15098-  99 
   259-  62;  AWS  Sixth  R&  O,  19  FCC  Rcd  at  20753-  54    72-  73. 
 310  See  AWS  Sixth  R&  O,  19  FCC  Rcd  at  20754    73. 
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 relocate  BAS  incumbents  from  four-  sevenths  of  the  spectrum,  and  (c)  the  AWS  licensees  pro  rata  share,  collectively,  represents  the  cost  of  relocating  BAS  incumbents 
 from  two-  sevenths  of  the  spectrum  (one-  seventh  for  each  five  megahertz  block). 
 112.  In  light  of  the  unique  circumstances  surrounding  Nextels  entry  into  the  band,  the  Commission  confined  Nextels  reimbursement  obligation  so  that  it  applies  only 


 to  MSS  licensees  that  enter  the  band  prior  to  the  end  of  the  800  MHz  band  reconfiguration  period.  311  Nextel  must  pay  all  upfront  costs  and  will  receive  credit  for 
 BAS  relocation  as  part  of  the  800  MHz  true-  up  process,  less  any  reimbursement  it  receives  from  MSS  and  AWS  licensees.  However,  once  the  true-  up  is  completed, 
 Nextel  may  not  obtain  reimbursement  from  subsequent  entrants  to  the  band.  312  Nextel's  right  to  reimbursement  is  further  constrained  by  the  fact  that  it  may  obtain 
 reimbursement  only  for  the  expenses  it  incurs  for  relocating  non-  fixed  BAS  incumbents  in  the  top  thirty  markets  and  relocating  all  BAS  incumbents  fixed  facilities,  regardless  of 
 the  market  size.  Moreover,  Nextel  may  only  receive  reimbursment  for  an  MSS  licensee's  pro  rata  share  of  the  1990-  2025  MHz  spectrum.  313  Also,  Nextel  is  obligated  to 
 reimburse  MSS  licensees  for  Nextels  pro  rata  share  of  the  MSS  licensees  relocation  expenses,  should  the  MSS  licensee  trigger  involuntary  relocation  or  otherwise 
 participate  in  the  relocation  process  before  Nextel  has  completed  its  nationwide  clearing  of  the  band.  314  In  limiting  the  amount  of  Nextels  reimbursement  in  this  manner,  the 
 Commission  struck  an  appropriate  balance  that  is  not  unreasonably  burdensome  on  either  Nextel  or  the  MSS  licensees,  315  and  we  have  not  been  shown  how  this  equitable 
 apportionment  process  intrudes  on  the  rights  of  any  affected  licensee.  We  therefore  deny  that  part  of  the  TMI/  TerreStar  petition  for  reconsideration  that  seeks  reversal  of  the 
 reimbursement  procedures  established  in  the  800  MHz  R&  O. 
 113.  We  now  address  TMI  and  TerreStars  request  to  clarify  that  the  MSS  reimbursement  obligation  ends  thirty-  six  months  after  the  effective  date  of  the  800  MHz 


 R&  O  and  not  the  end  date  of  the  thirty-  six  month  800  MHz  band  reconfiguration  process.  316  The  Commission  decided  to  end  the  reimbursement  obligations  of  other 
 entrants  to  Nextel,  and  any  reimbursement  by  Nextel  to  other  entrants,  at  the  end  of  the  800  MHz  band  true-  up  period  for  administrative  efficiency  in  the  accounting  process  and 


 311  See  800  MHz  R&  O,  19  FCC  Rcd  at  15099    261. 
 312  Id. 
 313  Id. 
 314  See  id.,  19  FCC  Rcd  at  15099    262. 
 315  Under  the  MSS  plan,  MSS  licensees  are  required  to  clear  the  top  thirty  BAS  markets  and  all  fixed 
 BAS  stations,  regardless  of  market  size,  before  beginning  operations.  However,  the  accounting  among  MSS  licensees  to  settle  relocation  expenditures  would  not  occur  until  after  the  end  of  the  MSS  relocation  process.  See 


 MSS  Second  R&  O,  15  FCC  Rcd  at  12338    68. 
 316  See  TMI/  TerreStar  PFR  (of  R&  O)  at  6-  8;  TMI/  TerreStar  Reply  at  3-  6. 
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 because  of  the  unique  circumstances  in  Nextels  receipt  of  BAS  spectrum.  To  address  potential  MSS  licensees  concerns  of  uncertainty  regarding  their  reimbursement 
 obligations  to  Nextel,  the  Commission  required  Nextel  to  inform  the  Commission  and  MSS  licensees,  twelve  months  after  the  effective  date  of  the  800  MHz  R&  O,  whether  or 
 not  it  will  be  seeking  reimbursement  from  the  MSS  licensees.  317  Further,  under  traditional  reimbursement  procedures,  including  those  applied  among  the  MSS 
 licensees  and  outlined  in  the  MSS  Second  R&  O,  reimbursement  obligations  run  for  a  much  longer  period  of  time,  until  the  requirement  for  relocation  sunsets.  318  We  therefore 
 deny  TMI  and  TerreStars  request  to  tie  the  MSS  obligation  to  reimburse  Nextel  for  the  MSS  pro  rata  share  of  BAS  clearing  costs  to  Nextels  thirty-  month  BAS  relocation 
 timeframe  or,  alternatively,  to  a  time  period  that  ends  thirty-  six  months  after  the  effective  date  of  the  800  MHz  R&  O  and  maintain  the  schedule  previously  established,  i.  e.,  the 
 true-  up  period. 
 114.  In  comments  filed  in  response  to  Nextels  BAS  Relocation  Schedule  and  Implementation  Plan,  319  TMI  and  TerreStar  request  that  the  Commission  require  Nextel 


 to  remedy  certain  information  deficits  in  Nextels  relocation  plan,  such  as  the  lack  of  detail  on  the  BAS  facilities  to  be  relocated,  the  absence  of  firm  relocation  dates  by 
 market,  and  the  lack  of  relevant  financial  data.  320  While  we  recognize  that  an  MSS  licensee  a  co-  entrant  in  the  1990-  2025  MHz  band  with  its  own  relocation  and 
 reimbursement  obligations  to  BAS  incumbents  may  have  legitimate  concerns  on  the  adequacy  of  detailed  relocation  and  financial  information,  we  find  that  TMI  and 
 TerreStars  request  is  too  speculative  and  premature  to  warrant  Commission  action  at  this  time.  We  expect  Nextel  to  work  cooperatively  with  MSS  licensees  because  all 
 parties  would  collectively  benefit  from  the  expeditious  relocation  of  BAS  incumbents  to  the  new  band  plan,  and  note  that  TMI  and  TerreStar  offer  no  evidence  that  Nextel  has 
 denied  requests  for  information  from,  or  has  been  otherwise  uncooperative  with,  MSS 
 317  This  deadline  coincides  with  the  date  Nextel  is  required  to  submit  its  first  status  report  on  its  BAS 
 relocation  efforts.  We  note  that  the  October  2004  Public  Notice  extended  this  deadline  by  forty-  five  days. 
 318  As  noted  above,  under  the  MSS  plan,  the  accounting  among  MSS  licensees  to  settle  relocation 
 expenditures  would  not  occur  until  after  the  end  of  the  MSS  relocation  process.  See  n.  315  supra.  See  also  MSS  Second  R&  O,  15  FCC  Rcd  at  12338    68. 


 319  In  the  800  MHz  R&  O,  the  Commission  required  Nextel  to  file  with  the  Commission  and  copy  the  MSS 
 licensees,  within  thirty  days  after  the  effective  date  of  the  800  MHz  R&  O,  its  plan  for  the  relocation  of  BAS  operations  in  the  markets  that  will  be  relocated  during  stage  one  (i.  e.,  within  eighteen  months).  MSS  licensees  had 


 thirty  days  to  review  the  Nextel  plan  and  identify  to  Nextel  and  the  Commission  those  top  thirty  TV  markets  and  fixed  BAS  operations,  if  any,  for  which  they  intend  to  invoke  involuntary  relocation.  See  800  MHz  R&  O,  19  FCC 
 Rcd  at  15097-  98    257.  Nextel  submitted  its  BAS  relocation  schedule  and  implementation  plan  on  April  6,  2005.  See  Nextel  BAS  Relocation  Schedule  and  Implementation  Plan  dated  April  6,  2005.  TMI  and  TerreStar  submitted 
 joint  comments  on  the  Nextel  plan  on  May  6,  2005.  See  Comments  of  TMI  Communications  Company  (TMI)  and  TerreStar  Networks  (TerreStar)  on  the  Nextel  BAS  Relocation  and  Implementation  Plan  dated  May  6,  2005 
 (TMI/  TerreStar  Comments). 
 320  See  TMI/  TerreStar  Comments  at  9-  13. 
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 licensees.  We  anticipate  that  both  Nextel  and  MSS  licensees  would  jointly  seek  clarification  from  the  Commission  on  matters  that  the  parties  are  unable  to  resolve 
 during  such  discussions.  We  note  that  MSS  licensees  may  voluntarily  join  in  the  negotiations  between  Nextel  and  BAS  incumbents  in  order  to  relocate  BAS  operations 
 in  markets  31  and  above  as  well  as  any  fixed  BAS  operations,  regardless  of  market  size.  321  Participation  in  the  negotiations  by  MSS  licensees  may  address  some  of  the 
 concerns  raised  by  TMI  and  TerreStar.  Further,  MSS  licensees  retain  the  option  of  accelerating  the  clearing  of  those  markets  so  that  they  could  begin  operations  before 
 Nextel  has  completed  nationwide  clearing.  The  one-  year  mandatory  negotiation  period  for  MSS  and  BAS  licensees  in  markets  1-  30  and  all  BAS  fixed  stations,  regardless  of 
 market  size,  ended  on  December  8,  2004.  Therefore,  any  MSS  entrant  may  now  involuntarily  relocate  these  incumbent  BAS  operations.  322  Under  involuntary  relocation, 
 a  new  MSS  entrant  may,  at  its  own  expense,  make  necessary  modifications  to  or  replace  an  incumbent  licensees  BAS  equipment  such  that  the  BAS  licensee  receives 
 comparable  performance  from  the  modified  or  replaced  equipment.  323  Accordingly,  we  decline,  without  prejudice,  to  provide  the  relief  sought  by  TMI  and  TerreStar. 


 3.  Cost  Accounting  and  Reporting 
 115.  In  the  800  MHz  R&  O,  the  Commission  required  Nextel  to  provide  annual  audited  accounting  statements  of  funds  spent  on  the  overall  800  MHz  band 


 reconfiguration  process,  including  the  determination  of  Nextels  cost  of  clearing  the  1.9  GHz  spectrum,  and  to  provide  a  final  audited  report  prior  to  the  time  the  true-  up 
 calculations  are  made.  324  The  TA  has  requested  guidance  on  its  role  relative  to  the  expenses  that  Nextel  incurs  in  connection  with  clearing  the  1.9  GHz  spectrum  and 
 reports  to  the  TA.  The  TA  submits  that  Nextel  is  responsible  for  all  administrative,  operational  and  financial  aspects  of  clearing  the  1.9  GHz  band  and  that  the  TAs 
 responsibility  therefore  extends  only  to  receiving  Nextels  financial  reports  and  attaching  them  to  the  TAs  quarterly  and  annual  reports  filed  with  the  Commission  and  to  the  final 
 report  used  to  determine  the  true-  up  amount,  if  any.  We  confirm  the  TAs  understanding,  but  with  two  qualifications:  (a)  the  TA  should  integrate  the  Nextel  data 


 321  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    258.  We  also  noted  that  we  would  entertain  requests 
 filed  by  MSS  licensees  requesting  that  their  voluntary  participation  in  the  negotiations  between  Nextel  and  BAS  incumbents  initiate  their  mandatory  negotiation  period.  Id. 


 322  Under  the  800  MHz  R&  O,  if  MSS  licensees  choose  not  to  trigger  involuntary  relocation,  Nextel  could 
 proceed  under  its  plan  to  relocate  BAS  incumbents.  See  800  MHz  R&  O,  19  FCC  Rcd  at  15098    257. 
 323  See  MSS  Second  R&  O,  15  FCC  Rcd  at  12331    48. 


 324  The  Commission  required  Nextel  to  maintain  accurate  records  of  all  labor  and  material  expenses  in 
 connection  with  clearance  of  the  1.9  GHz  band  and  to  supply  an  annual  independent  audit,  and  a  final  audit,  by  an  auditing  firm  satisfactory  to  the  Commission.  See  800  MHz  R&  O,  19  FCC  Rcd  at  14989,  15124    35,  330. 


 Nextel  must  also  submit  to  the  Commission,  progress  reports  within  twelve  months  and  twenty-  four  months  after  the  effective  date  of  [the  800  MHz  R&  O]  on  the  status  of  the  1.9  GHz  transition.  Id.,  19  FCC  Rcd  15096-  97   
 254. 
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 into  the  TAs  required  reports,  e.  g.  when  it  sums  up  the  costs  of  band  reconfiguration,  it  should  include  and  itemize  the  data  relating  to  1.9  GHz  band  clearance  provided  by 
 Nextel;  and  (b)  although  the  800  MHz  R&  O  and  Supplemental  Order  are  silent  on  whether  Nextel  must  file  quarterly  reports  of  1.9  GHz  clearing  costs,  the  TA,  at  its 
 discretion,  may  request  such  quarterly  data  from  Nextel.  We  also  confirm  that  the  TA  is  under  no  obligation  to  analyze,  audit  or  verify  the  data  that  Nextel  supplies  on  the  cost 
 of  clearing  the  1.9  GHz  spectrum.  325 
 O.  Clarifications 
 1.  Site-  Based  SMR  Facilities 
 116.  ConEd  notes  that  the  800  MHz  R&  O  established  grandfathering  rules  for  EA  licensees  that  operate  in  the  non-  cellular  portion  of  the  800  MHz  band  and  seeks 


 clarification  that  its  site-  based  SMR  facilities  will  also  be  grandfathered  and  that  it  will  not  be  required  to  change  frequency  simply  because  it  did  not  acquire  its  licenses  in  a 
 spectrum  auction.  326  The  800  MHz  R&  O  did  nothing  to  change  the  grandfathering  rights  of  site-  based  SMR  incumbents  operating  in  the  non-  ESMR  portion  of  the  band. 
 Therefore,  ConEd  and  similarly  situated  licensees  may  continue  to  operate  under  the  grandfathering  provisions  established  when  the  EA  licensing  scheme  was  first  adopted 
 for  SMR  channels.  327  However  we  note  that  some  site-  based  incumbents,  e.  g.  those  operating  on  some  of  the  current  General  Category  channels  are  subject  to  relocation 
 and  will  be  provided  with  comparable  facilities.  328 
 2.  Definition  of  Unacceptable  Interference 
 117.  In  the  800  MHz  R&  O,  the  Commission  adopted  an  objective  standard  for  defining  what  constitutes  unacceptable  interference  to  public  safety  and  other  high-  site 


 systems  in  the  800  MHz  band.  329  Entergy  requests  that  we  clarify  that  the  unacceptable  interference  standard  will  apply  only  to  interference  created  by  licensees 
 employing  cellular  architecture  systems.  330  Specifically,  Entergy  notes  that  the  heading  of  Section  90.672  states  that  unacceptable  interference  applies  only  to  interference 
 created  by  ESMR  or  Part  22  Cellular  Radiotelephone  systems.  331  Nonetheless,  Entergy 
 325  See  TA  Interim  Status  Report,  Appendix  6. 


 326  See  ConEd  PFR  (of  R&  O)  at  5. 
 327  They  may  not,  however,  operate  high-  density  cellular  systems  in  the  non-  ESMR  portion  of  the  band. 
 See  n.  10  supra. 
 328  See  47  C.  F.  R.    90.693. 


 329  See  800  MHz  R&  O,  19  FCC  Rcd  15024-  34    92-  114.  See  also  47  C.  F.  R.    90.672. 
 330  Entergy  PFR  (of  R&  O)  at  3-  5. 
 331  Id.  at  4. 
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 notes  that  the  language  of  Section  90.672  implies  that  unacceptable  interference  could  be  created  by  any  type  of  licensee,  including  non-  cellular  licensees.  332  Entergy  also 
 notes  that  the  text  of  the  notification  procedures  in  Section  90.674  contains  a  reference  to  non-  cellular  licensees  receiving  harmful  interference.  333 


 118.  Although  the  Commission  has  used  the  term  unacceptable  interference  in  this  proceeding  in  the  context  of  interference  created  by  800  MHz  cellular-  architecture 
 systems  to  800  MHz  non-  cellular  systems,  334  the  Commission  did  not  intend  by  this  usage  to  limit  unacceptable  interference  to  that  caused  by  high  density  cellular 
 systems  sometimes  employed  by  ESMR  and  Part  22  Radiotelephone  licensees.  335  Therefore,  we  grant  Entergys  request  and  amend  Section  90.672  to  specify  that 
 unacceptable  interference  to  800  MHz  non-  cellular  licensees  is  that  which  originates  from  one  or  a  combination  of  800  MHz  cellular-  architecture  licensees,  regardless  of 
 whether  the  cellular-  architecture  licensee  employs  a  high-  density  or  low-  density  cellular  system.  336  We  will  also  amend  Section  90.674  to  replace  the  inadvertent  use  of 
 the  term  harmful  interference  with  the  correct  phrase  unacceptable  interference.  337 
 3.  Definition  of  Critical  Infrastructure  Industry 
 119.  Entergy  correctly  notes  that  in  the  800  MHz  R&  O,  the  Commission  imprecisely  defined  Critical  Infrastructure  Industries  (CII)  in  Section  90.7  of  its  rules  as: 


 Private  internal  radio  services  operated  by  State,  local  governments  and  non-government  entities,  including  utilities,  railroads,  metropolitan  transit  systems,  pipelines, 
 private  ambulances,  volunteer  fire  departments,  and  not-  for-  profit  organizations  that  offer  emergency  road  services,  provided  these  private  internal  radio  services  (i)  are 
 used  to  protect  safety  of  life,  health,  or  property;  and  (ii)  are  not  made  commercially  available  to  the  public.  338  Thus,  the  Commissions  definition  incorrectly  defined  CII  as 
 radio  services  .  .  .  rather  than  as  the  entities  that  provide  and  use  such  radio  services.  We  therefore  amend  Section  90.7  to  define  CII  licensees  as  entities;  specifically  thus: 
 State,  local  government  and  non-  government  entities,  including  utilities,  railroads,  metropolitan  transit  systems,  pipelines,  private  ambulances,  volunteer  fire  departments, 


 332  Id.  at  3. 
 333  Id.  at  13  citing  69  Fed  Reg,  67823,  67850  to  be  codified  at  47  C.  F.  R.    90.674(  a). 
 334  See  800  MHz  R&  O,  19  FCC  Rcd  15024-  34    92-  114. 
 335  As  noted  in    7  supra,  the  term  high  density  cellular  systems  was  initially  coined  for  the  limited 
 purpose  of  defining  which  cellular  architecture  systems  may  operate  below  the  non-  ESMR/  ESMR  band  segment  dividing  line. 


 336  See  47  C.  F.  R.    90.672  (as  amended  in  Appendix  B  infra). 
 337  See  47  C.  F.  R.    90.674(  a)  (as  amended  in  Appendix  B  infra). 
 338  See  Entergy  PFR  (of  R&  O)  at  12-  13. 
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 and  not-  for-  profit  organizations  that  provide  private  internal  radio  services,  provided  these  private  internal  radio  services  (i)  are  used  to  protect  safety  of  life,  health,  or 
 property;  and  are  (ii)  are  not  made  commercially  available  to  the  public.  339 
 4.  Dispute  Resolution  Processes 
 120.  Entergy  notes  an  internal  contradiction  in  section  90.677(  d)  of  the  Commissions  rules.  Although  the  rule  section  requires  the  TA  to  resolve  any  disputed 


 issues  remaining  at  the  end  of  the  mandatory  negotiation  period  within  thirty  working  days,  it,  inconsistently,  requires  the  TA  to  forward  any  unresolved  issues  to  the 
 Wireless  Telecommunications  Bureau  within  thirty  days  after  the  end  of  the  mandatory  negotiation  period.  340  Additionally,  Entergy  also  notes  that,  in  the  text  of  the  800  MHz 
 R&  O,  the  Commission  established  procedures  for  review  of  disputed  issues  that  arise  during  the  negotiation  period,  but  did  not  codify  those  procedures  in  the  rules.  341  We 
 agree  with  Entergy  and  will  modify  section  90.677(  d)  of  our  rules  to  codify  the  dispute  resolution  procedures  set  forth  in  the  text  of  the  800  MHz  R&  O  and  to  clarify  that  the 
 Transition  Administrator  must  forward  unresolved  disputed  issues  remaining  at  the  end  of  the  mandatory  negotiation  period  within  thirty  working  days  of  the  end  of  the 
 mandatory  negotiation  period.  342 
 5.  Frequency  Coordination  of  EA-  based  SMR  Frequencies 
 121.  In  the  Supplemental  Order,  the  Commission  stated  that,  after  band  reconfiguration,  all  applications  for  site-  based  SMR  channels  in  the  non-  cellular  portion 


 of  the  800  MHz  band  would  be  subject  to  frequency  coordination.  343  In  making  this  clarification,  a  conforming  change  was  not  made  to  Section  90.175  of  the  rules,  which 
 continues  to  provide  that  both  800  MHz  and  900  MHz  SMR  licensees  are  exempt  from  frequency  coordination.  Accordingly,  we  amend  section  90.175,  herein,  to  specify  that 
 only  applicants  for  EA-  based  800  MHz  SMR  and  900  MHz  SMR  frequencies  will  continue  to  be  exempt  from  the  frequency  coordination  requirements.  344 


 339  See  47  C.  F.  R.    90.7  (as  amended  in  Appendix  B  infra). 
 340  See  Entergy  PFR  (of  R&  O)  at  9-  10  citing  47  C.  F.  R.    90.677(  d). 
 341  See  Entergy  PFR  (of  R&  O)  at  11-  12  citing  800  MHz  R&  O,  19  FCC  Rcd  15071-  72    194. 
 342  See  47  C.  F.  R.    90.677(  d)  (as  amended  in  Appendix  B  infra). 
 343  See  Supplemental  Order,  19  FCC  Rcd  25149    67.  See  also  47  C.  F.  R.    90.175. 
 344  See  Appendix  B,  infra. 
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 6.  Reconfiguration  of  Areas  That  Do  Not  Have  Associated  NPSPAC  Regions 
 122.  In  establishing  the  rules  governing  800  MHz  band  reconfiguration,  the  Commission  stated  that  relocation  will  proceed  in  discrete  areas  defined  by  the 
 boundaries  of  the  fifty-  five  800  MHz  National  Public  Safety  Planning  Advisory  Committee  (NPSPAC)  regions.  The  TA  then  recommended,  and  the  Commission 
 concurred  in,  a  schedule  detailing  when  band  reconfiguration  will  commence  in  each  of  those  NPSPAC  regions.  345  When  the  TA  submitted  its  plan,  it  noted  that  because 
 American  Samoa,  Guam,  the  Northern  Mariana  Islands,  and  the  Gulf  of  Mexico  are  not  associated  with  NPSPAC  regions,  it  would  defer  developing  800  MHz  band  relocation 
 plans  for  these  areas  pending  direction  from  the  Commission.  346 
 123.  The  Commissions  800  MHz  rules  both  prior  to  and  subsequent  to  the  800  MHz  R&  O  and  the  Supplemental  Order  apply  to  American  Samoa,  Guam,  the  Northern 


 Mariana  Islands,  and  to  facilities  located  in  the  Gulf  of  Mexico,  regardless  of  whether  such  areas  have  an  associated  NPSPAC  region.  347  Accordingly,  we  hereby  recommend 
 that  the  TA  include  these  areas  in  Wave  4  of  its  reconfiguration  schedule.  Although  this  will  result  in  these  areas  being  among  the  last  to  be  reconfigured,  we  note  that  there 
 are  relatively  few  800  MHz  systems  in  the  territories,  and,  in  the  case  of  the  Gulf  of  Mexico,  few  if  any  public  safety  facilities,  and  we  therefore  anticipate  no  untoward 
 effects  from  placing  these  areas  in  Wave  4. 
 7.  900  MHz  Interference  and  Spectrum  Trafficking 
 124.  Numerous  parties  have  asked  us  to  apply  the  800  MHz  interference  rules  to  licensees  in  the  900  MHz  band.  348  Although  the  Commission  has  addressed  in  this 


 proceeding,  the  consolidation  of  the  Business  and  Industrial/  Land  Transportation  channels  in  both  the  800  MHz  and  900  MHz  bands,  the  Commission  limited  its 
 consideration  of  900  MHz  matters  in  the  800  MHz  NPRM  and  subsequent  orders  to  that 


 345  See  Regional  Prioritization  Plan  of  the  800  MHz  Transition  Administrator,  filed  January  31,  2005; 
 Wireless  Telecommunications  Bureau  Approves  the  Basic  Reconfiguration  Schedule  put  Forth  in  the  Transition  Administrator's  800  MHz  Regional  Prioritization  Plan,  WT  Docket  No.  02-  55,  Public  Notice,  DA  05-  619,  70  Fed. 


 Reg.  21786  WTB  (2005). 
 346  See  Regional  Prioritization  Plan  of  the  800  MHz  Transition  Administrator,  filed  January  31,  2005  at 
 pg  23,  n  40. 
 347  See  47  U.  S.  C.    152(  a)  (giving  the  FCC  authority  to  regulate  all  interstate  and  foreign  communication 
 by  wire  and  radio  originating  in  or  received  by  the  United  States).  See  also  47  U.  S.  C.    153(  22)(  defining  "interstate  communication"  or  "interstate  transmission"  as  communication  or  transmission  from  or  to  any  State, 


 Territory,  or  possession  of  the  United  States  (other  than  the  Canal  Zone)  or  the  District  of  Columbia.) 
 348  See  Petition  for  Reconsideration,  filed  Dec.  17,  2004,  by  the  Association  of  American  Railroads  (AAR 
 PRF  (of  R&  O))  at  4-  7;  Petition  for  Reconsideration,  filed  Dec.  22,  2004,  by  the  National  Association  of  Manufacturers  and  MRFAC,  Inc.  (NAM/  MRFAC  PFR  (of  R&  O))  at  4-  10;  Exelon  PFR  (of  R&  O)  at  4-  5. 
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 specific  issue.  Accordingly,  we  decline  to  address  petitioners  requests  to  address  900  MHz  interference  issues  because  they  are  outside  the  scope  of  the  instant  proceeding. 
 Petitioners  may  raise  900  MHz  interference  issues,  and  other  issues  related  to  the  900  MHz  band,  in  WT  Docket  No.  05-  62,  the  900  MHz  Flexible  Use  Proceeding.  The 
 Commission  issued  a  Notice  of  Proposed  Rulemaking  in  that  docket  on  February  16,  2005.  349  We  will  incorporate  the  comments  into  the  docket  in  that  proceeding. 


 V.  ORDERING  CLAUSES 
 125.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  4(  i),  303(  f),  332,  337  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i), 


 303(  f),  332,  337  and  405,  this  Memorandum  Opinion  and  Order  IS  HEREBY  ADOPTED. 


 126.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  1,  4(  i),  303(  f)  and  (r),  332,  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    1, 
 154(  i),  303(  f)  and  (r),  332,  and  405,  the  Petition  for  Reconsideration  filed  by  Southern  Communications  Services,  Inc.  d/  b/  a/  SoutherLINC  on  December  22,  2004,  IS 
 GRANTED  to  the  extent  described  herein. 
 127.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  1,  4(  i),  303(  f)  and  (r),  332,  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    1, 


 154(  i),  303(  f)  and  (r),  332,  and  405,  the  Petition  for  Clarification  filed  by  American  Electric  Power  Company,  Inc.,  on  December  21,  2004;  the  Petition  for  Reconsideration 
 filed  by  Entergy  Corporation  and  Entergy  Services,  Inc.  on  December  22,  2004;  the  Petition  for  Reconsideration  filed  by  AIRPEAK  Communications,  LLC  on  March  10, 
 2005,  the  Joint  Petition  for  Partial  Reconsideration  jointly  filed  by  Coastal  SMR  Network,  L.  L.  C./  A.  R.  C.,  Inc.  and  Scott  C.  MacIntyre  on  December  22,  2004;  and  the  Petition  for 
 Partial  Reconsideration  filed  by  the  Safety  and  Frequency  Equity  Competition  Coalition  on  March  10,  2005  ARE  GRANTED  to  the  extent  described  herein  and  DENIED  in  all 
 other  respects. 
 128.  IT  IS  FURTHER  ORDERED  that  the  Request  for  Waiver,  filed  by  AIRPEAK  Communications,  LLC  on  March  10,  2005,  IS  GRANTED  to  the  extent 


 described  herein  and  DENIED  to  the  extent  described  herein  and  DISMISSED  in  all  other  respects. 


 129.  IT  IS  FURTHER  ORDERED  that  the  Request  for  Waiver,  filed  by  Airtel  Wireless,  LLC  on  March  10,  2005,  IS  GRANTED  to  the  extent  described  herein. 
 130.  IT  IS  FURTHER  ORDERED  that  the  Petitions  for  Reconsideration  jointly  filed  by  the  National  Association  of  Broadcasters,  the  Association  for  Maximum  Service 
 349  See  Amendment  of  Part  90  of  the  Commissions  Rules  to  Provide  For  Flexible  Use  of  the  896-  901 
 MHz  and  935  and  940  MHz  Bands  Allotted  to  the  Business  and  Industrial  Land  Transportation  Pool,  WT  Docket  05-  62,  Notice  of  Proposed  Rulemaking,  FCC  05-  31  (2005). 
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 Television,  the  Society  of  Broadcast  Engineers  on  December  2,  2004;  the  Joint  Request  for  Clarification  filed  by  TMI  Communications  and  Company,  a  Limited 
 Partnership  and  TerreStar  Networks,  Inc.  on  December  22,  2004;  the  Petition  for  Partial  Reconsideration  filed  by  James  A.  Kay,  Jr.  on  December  22,  2004;  the  Petition  for 
 Reconsideration  jointly  filed  by  the  American  Petroleum  Institute  and  the  United  Telecom  Council  on  Mar.  10,  2005;  the  Petition  for  Partial  Reconsideration  filed  by  the 
 Association  of  Public-  Safety  Communications  Officials  International,  Inc.,  International  Association  of  Chiefs  of  Police,  International  Association  of  Fire  Chiefs,  International 
 Municipal  Signal  Association,  Inc.,  Major  Cities  Chiefs  Association,  Major  County  Sheriffs  Association,  and  National  Sheriffs  Association,  on  February  1,  2005;  the 
 Petition  for  Clarification  and  Reconsideration,  filed  by  Consolidated  Edison  Company  of  New  York,  Inc.,  on  December  22,  2004;  the  Petition  for  Reconsideration,  filed  by 
 Consolidated  Edison  Company  of  New  York,  Inc.,  on  March  10,  2005;  the  Petition  for  Reconsideration,  filed  by  Peter  W.  Meade,  Chairman,  Region  8,  on  January  21,  2005 
 and  the  Petition  for  Clarification  or  Partial  Reconsideration  of  Freeze  Process  for  Implementation  of  800  MHz  Band  Reconfiguration,  filed  by  the  Association  of  Public-Safety 
 Communications  Officials-  International  Inc.,  the  International  Association  of  Chiefs  of  Police,  the  International  Association  of  Fire  Chiefs,  the  International  Municipal 
 Signal  Association,  Inc.,  the  Major  Cities  Chiefs  Association,  Major  County  Sheriffs  Association  and  the  National  Sheriffs  Association  on  May  16,  2005,  ARE  DENIED. 


 131.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Reconsideration  filed  by  Richard  W.  Duncan  d/  b/  a  Anderson  Communications  is  RESOLVED  to  the  extent 
 indicated  herein. 
 132.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Reconsideration  filed  by  Exelon  Corporation  on  December  22,  2004;  the  Petition  for  Reconsideration  filed  by 


 Charles  D.  Guskey  on  December  22,  2004;  the  Petition  for  Reconsideration  filed  by  Nextel  Communications,  Inc.  on  December  22,  2004  and  the  Petition  for 
 Reconsideration  jointly  filed  by  Preferred  Communications  Systems,  Inc.  and  Silver  Palm  Communications,  Inc.,  on  Dec.  22,  2004  ARE  DENIED  IN  PART  AND 
 DISMISSED  IN  PART  to  the  extent  described  herein. 
 133.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Reconsideration  filed  by  CTIA-  the  Wireless  Association  on  December  22,  2004;  the  Petition  for  Reconsideration 


 filed  by  the  Association  of  American  Railroads  on  December  17,  2004  and  the  Petition  for  Reconsideration  filed  by  the  National  Association  of  Manufacturers  and  MRFAC,  Inc. 
 on  December  22,  2004  ARE  DISMISSED  AS  MOOT. 
 134.  IT  IS  FURTHER  ORDERED  that  the  Request  for  Declaratory  Ruling,  jointly  filed  by  Nextel,  the  Association  for  Maximum  Service  Television,  and  the  National 


 Association  of  Broadcasters,  on  June  20,  2005,  IS  GRANTED  to  the  extent  described  herein  and  DISMISSED  in  all  other  respects. 


 135.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  309  and  316  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.      309,  316,  the  licenses  of  all 
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 800  MHz  band  licensees  (including,  but  not  limited  to,  Nextel  Communications,  Inc.),  are  hereby  modified  as  specified  in  this  Memorandum  Opinion  and  Order.  Pursuant  to 
 Section  316(  a)(  1)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    316(  a)(  1),  publication  of  this  Memorandum  Opinion  and  Order  in  the  Federal  Register 
 shall  constitute  notification  in  writing  of  our  Order  modifying  Nextel's  800  MHz  licenses  and  those  of  all  other  800  MHz  licenses,  and  of  the  grounds  and  reasons  therefore,  and 
 Nextel  and  these  other  800  MHz  licensees  shall  have  thirty  days  from  the  date  of  such  publication  to  protest  such  Order. 


 136.  IT  IS  FURTHER  ORDERED  that  the  amendments  of  the  Commissions  Rules  as  set  forth  in  Appendix  B  ARE  ADOPTED,  effective  thirty  days  from  the  date  of 
 publication  in  the  Federal  Register. 
 137.  IT  IS  FURTHER  ORDERED  that  the  Final  Regulatory  Flexibility  Analysis,  required  by  Section  604  of  the  Regulatory  Flexibility  Act,  5  U.  S.  C.    604,  and  as  set  forth  in  Appendix  A  herein  is 


 ADOPTED. 
 138.  IT  IS  FURTHER  ORDERED  that  the  Commission's  Consumer  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Memorandum  Opinion  and 
 Order,  including  the  Final  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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 APPENDIX  A 
 PROCEDURAL  MATTERS 
 A.  Supplemental  Final  Regulatory  Flexibility  Analysis 
 139.  The  Regulatory  Flexibility  Act  (RFA)  350  requires  that  an  agency  prepare  a  regulatory  flexibility  analysis  for  notice-  and-  comment  rulemaking  proceedings,  unless 


 the  agency  certifies  that  the  rule  will  not,  if  promulgated,  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities.  351  As  required  by  the  RFA  an  Initial 
 Regulatory  Flexibility  Analysis  (  IRFA)  was  incorporated  in  the  Notice  of  Proposed  Rulemaking  (  800  MHz  NPRM)  in  this  proceeding.  The  Commission  sought  written 
 public  comment  on  the  proposals  in  the  800  MHz  NPRM,  including  comment  on  the  IRFA.  Based  upon  the  comments  in  response  to  the  800  MHz  NPRM  and  the  IRFA,  the 
 Commission  included  a  Final  Regulatory  Flexibility  Analysis  (  FRFA)  in  the  Report  and  Order  (800  MHz  R&  O)  in  this  proceeding.  The  Commission  subsequently  sought 
 comment  on  ex  parte  presentations  filed  in  this  proceeding.  In  the  Supplemental  Order  and  Order  on  Reconsideration  (Supplemental  Order),  the  Commission,  on  its  own 
 motion,  amended  the  rules  in  a  manner  that  did  not  significantly  affect  small  entities  beyond  the  terms  set  forth  in  the  FRFA.  Accordingly,  the  Commission  included  a 
 Supplemental  Regulatory  Flexibility  Analysis  (  Supplemental  FRFA)  addressing  those  amendments  consistent  with  the  RFA. 


 140.  This  Memorandum  Opinion  and  Order  (MO&  O)  clarifies  portions  of  the  800  MHz  R&  O  and  companion  Supplemental  Order  and  addresses  petitions  for 
 reconsideration  of  the  Commissions  decisions  in  the  800  MHz  R&  O  and  the  Supplemental  Order.  Interested  parties  were  afforded  notice  and  opportunity  to 
 comment  on  the  petitions  for  reconsideration  of  the  800  MHz  R&  O  and  Supplemental  Order.  See  70  FR  17327.  Several  parties  filed  oppositions  to  the  petitions  for 
 reconsideration  and  replies  to  the  oppositions.  The  clarifications  we  make  in  this  MO&  O  are  in  response  to  the  various  petitions  for  reconsideration,  oppositions  and  replies  that 
 have  been  filed  thus  far.  Accordingly,  this  Supplemental  Regulatory  Flexibility  Analysis  (  Supplemental  FRFA)  addresses  those  clarifications  and  conforms  to  the  RFA. 


 141.  Need  for,  and  Objectives  of,  the  Order  on  Reconsideration.  By  way  of  background  the  800  MHz  R&  O  adopted  a  plan  comprised  of  both  long-  term  and  short-term 
 components  that  the  Commission  concluded  represented  the  most  effective  solution  to  the  problem  of  interference  to  public  safety  licensees  in  the  800  MHz  band. 
 The  Commission  addressed  the  ongoing  interference  problem  over  the  short-  term  by 


 350  The  RFA,  see  5  U.  S.  C.    601-  612,  has  been  amended  by  the  Contract  With  America  Advancement 
 Act  of  1996,  Pub.  L.  No.  104-  121,  110  Stat.  847  (1996)  (CWAAA).  Title  II  of  the  CWAAA  is  the  Small  Business  Regulatory  Enforcement  Fairness  Act  of  1996  (SBREFA). 


 351  See  5  U.  S.  C.    605(  b). 
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 adopting  technical  standards  defining  unacceptable  interference  in  the  800  MHz  band  and  detailing  responsibility  for  interference  abatement.  The  long-  term  component 
 augmented  the  short-  term  component  by  reconfiguring  the  800  MHz  band  to  separate  generally  incompatible  technologies  whose  current  proximity  to  each  other  is  the 
 identified  root  cause  of  unacceptable  interference. 
 142.  Enhanced  Specialized  Mobile  Radio  Systems.  In  this  proceeding  the  Commission  divided  the  800  MHz  band  into  a  cellular  portion  and  non-  cellular  portion  to 


 create  spectral  separation  between  incompatible  technologies.  Section  90.614  provides  that  the  cellular  portion  would  be  reserved  for  licensees  that  operate  cellular  high-density 
 systems.  Several  parties  sought  reconsideration  of  the  eligibility  and  operating  requirements  applicable  to  the  cellular  band  arguing  that  these  requirements  are  overly 
 restrictive. 
 143.  On  our  own  motion  we  clarify  the  definition  of  ESMR  system  in  order  to  resolve  an  ambiguity  between  the  text  of  the  800  MHz  R&  O  and  Section  90.7  of  the 


 accompanying  rules.  This  clarification  is  significant  to  the  extent  that  it  defines  those  licensees  that  may  elect  to  be  relocated  into  the  cellular  portion  of  the  band.  When  the 
 Commission  first  established  the  eligibility  criteria  for  relocation  into  the  cellular  portion  of  the  band,  it  spoke  to  existing  ESMR  systems.  The  800  MHz  R&  O  inadvertently 
 defined  ESMR  systems  as  those  that  employ  high  density  cellular  architecture.  However  the  800  MHz  R&  O  had  also  referred  to  an  ESMR  system,  more  generally,  as 
 a  term  to  describe  systems  that  use  multiple,  interconnected,  multi-  channel  transmit/  receive  cells  and  employ  frequency  reuse  to  serve  a  larger  number  of 
 subscribers  than  is  possible  using  non-  cellular  technology.  We  resolve  this  contradiction  by  amending  rule  section  90.7  to  eliminate  the  high  density  qualification 
 for  ESMR  status.  The  practical  effect  of  this  clarification  is  to  ensure  licensees  operating  in  the  ESMR  band  have  a  fair  amount  of  flexibility  in  the  management  of  their 
 systems.  The  purpose  of  this  clarification  is  to  distinguish  between  high-  density  systems  that  may  not  be  operated  in  the  non-  ESMR  portion  of  the  band  not  to  require 
 EA  licensees  that  relocate  to  the  ESMR  band  to  operate  high-  density  systems  should  they  elect  to  operate  in  the  ESMR  band.  To  this  end  we  also  adopt  a  definition  of  800 
 MHz  high-  density  cellular  system  and  800  MHz  cellular  system  and  revise  several  Part  22  and  90  rules  to  incorporate  the  distinction  between  800  MHz  cellular  systems 
 and  high-  density  cellular  systems  in  order  to  more  efficiently  implement  our  band  reconfiguration  plan. 


 144.  Economic  Area  Licensees.  We  also  clarify  that  Economic  Area  (EA)  licensees  that  elect  to  relocate  to  the  cellular  band  may  relocate  site-  based  systems  so 
 long  as  they  deploy  a  cellular  system  on  their  combined  facilities  by  the  end  of  their  EA  license  term.  We  also  clarify  that  those  incumbent  EA  licensees  that  operate  non-cellular 
 systems  in  that  portion  of  the  cellular  band  known  as  the  Upper  200  band,  must  relocate  from  the  cellular  band  unless  they  deploy  a  cellular  system.  Failure  to 
 construct  a  cellular  system  will  result  in  automatic  cancellation  of  the  relocated  EA  license  and  any  site-  based  facilities  relocated  to  the  cellular  band.  The  purpose  of  this 
 clarification  is  to:  (1)  avoid  replicating  in  the  cellular  band  the  same  incompatible  mix  of 
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 technologies  that  resulted  in  this  proceeding;  (2)  ensure  that  licensees  genuinely  interested  in  competing  with  cellular  operators  have  the  opportunity  to  move  forward 
 with  their  business  plans  and  (3)  inhibit  the  ability  of  speculative  licensees  to  allow  valuable  spectrum  to  lie  fallow  or  under  utilized  in  an  attempt  to  maximize  resale  value. 
 In  this  connection,  EA  licensees,  consistent  with  their  existing  construction  and  operational  obligations,  must  notify  the  Commission  whether  they  have  constructed  in 
 accordance  with  the  operational  rules  governing  the  ESMR  band.  Overall,  this  clarification  confers  upon  EA  licensees  the  benefit  of  added  flexibility. 


 145.  Unacceptable  Interference.  In  the  800  MHz  R&  O,  the  Commission  adopted  an  objective  standard  for  defining  what  constitutes  unacceptable  interference 
 to  public  safety  and  other  non-  cellular  systems  in  the  800  MHz  band.  The  purpose  of  defining  unacceptable  interference  is  to  determine  the  rights  and  responsibilities  of 
 parties  to  alleviate  interference.  One  petitioner  requested  that  we  clarify  that  the  unacceptable  interference  standard  will  apply  only  to  interference  created  by  licensees 
 employing  cellular  architecture  systems.  According  to  this  petitioner  the  heading  and  text  of  Section  90.672  implies  that  unacceptable  interference  could  be  created  by  any 
 type  of  licensee  including  non-  cellular  licensees.  We  clarify  the  heading  and  text  of  Section  90.672  to  specify  that  unacceptable  interference  to  800  MHz  non-  cellular 
 licensees  is  that  which  originates  from  one  or  a  combination  of  800  MHz  cellular-architecture  licensees,  regardless  of  whether  the  cellular-  architecture  licensee  employs 
 a  high-  density  or  low-  density  cellular  system.  In  this  connection  we  replace  the  reference  to  harmful  interference  in  Section  90.672  with  the  term  unacceptable 
 interference. 
 146.  Critical  Infrastructure  Industry.  One  Petitioner  pointed  out  that  Section  90.7  imprecisely  defined  Critical  Infrastructure  Industries  (CII).  Accordingly  we  clarify 


 the  definition  of  CII. 
 147.  Southeast  Region  Band  Plan.  Section  90.617  is  updated  to  reflect  the  distribution  of  channels  between  the  various  pool  categories  in  the  SouthernLINC/  Nextel 


 counties  listed  in  Section  90.614(  c).  In  the  800  MHz  R&  O  the  Commission  adopted  a  band  plan  for  the  Southeast  Region.  Part  of  this  band  plan  included  a  1  MHz  Expansion 
 band,  designed  to  create  spectral  separation  between  public  safety  and  ESMR  operations.  Subsequently  we  have  received  petitions  for  reconsideration  seeking  to 
 eliminate  or  reduce  the  size  of  the  Expansion  band  because  there  is  insufficient  amount  of  spectrum  to  accommodate  Public  Safety  and  cellular  operations  in  the  Atlanta 
 market.  Accordingly,  we  reduce  the  size  of  the  Expansion  band  in  the  Atlanta  market  and  up  to  seventy  miles  outside  Atlanta. 


 148.  Transition  Administrator  Reports.  Sections  90.676(  b)(  3)  and  (4)  are  revised  to  allow  the  Transition  Administrator  to  choose  the  date  for  filing  quarterly  and 
 annual  reports  regarding  band  reconfiguration.  Previously  Section  90.676  required  that  the  TA  submit  its  reports  based  on  the  effective  date  of  the  Report  and  Order.  We  have 
 since  learned  that  this  requirement  would  be  complicated  by  Nextel  Communications,  Inc.  s  obligations  to  the  Securities  and  Exchange  Commission.  We  therefore  modify  our 
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 rules  to  permit  the  TA  to  file  its  quarterly  and  annual  reports  with  the  Commission  on  the  first  business  day  following  Nextels  quarterly  and  annual  filings  with  the  Securities  and 
 Exchange  Commission. 
 149.  Dispute  Resolution.  One  petitioner  pointed  out  an  ambiguity  and  inadvertent  omission  in  our  800  MHz  band  reconfiguration  dispute  resolution 


 procedures.  Accordingly  we  revise  section  90.677(  d)  of  our  rules  to  clarify  that  the  Transition  Administrator  must  forward  unresolved  disputed  issues  remaining  at  the  end 
 of  the  mandatory  negotiation  period  within  thirty  days  of  the  end  of  the  mandatory  negotiation  period.  We  also  will  modify  section  90.674  of  our  rules  to  codify  the  dispute 
 resolution  procedures  set  forth  in  the  text  of  the  800  MHz  R&  O. 
 150.  Frequency  Coordination.  Section  90.175  is  revised  to  clarify  that  800  MHz  Economic  Area  licensees  and  900  MHz  SMR  licensees  will  continue  to  be  exempt  from 


 frequency  coordination  requirements.  Previously,  in  the  Supplemental  Order  we  provided  that  800  MHz  site-  based  SMR  licensees  will  be  subject  to  frequency 
 coordination  in  the  800  MHz  band  but  inadvertently  omitted  this  requirement  from  the  rules.  Accordingly  we  correct  this  omission. 


 151.  Summary  of  Significant  Issues  Raised  in  Response  to  the  FRFA.  No  parties  have  addressed  the  FRFA  in  any  subsequent  filings. 
 152.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Proposed  Rules  Will  Apply.  The  RFA  generally  defines  small  entity  as  having 
 the  same  meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  352  In  addition,  the  term  small  business  has  the  same 
 meaning  as  the  term  small  business  concern  under  the  Small  Business  Act.  353  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).  354 


 153.  In  this  MO&  O,  the  Commission  is  amending  the  final  rules  adopted  in  the  800  MHz  R&  O  and  Supplemental  Order.  In  this  Further  FRFA,  we  incorporate  by 
 reference  the  description  and  estimate  of  the  number  of  small  entities  from  the  FRFA  in  the  800  MHz  R&  O,  which  identifies  as  potentially  affected  entities  Governmental 
 Licensees,  Public  Safety  Radio  Licensees,  Wireless  Telecommunications,  Business, 


 352  5  U.  S.  C.    601(  6). 
 353  5  U.  S.  C    601(  3)  (incorporating  by  reference  the  definition  of  small  business  concern  in  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. 


 354  15  U.  S.  C.    632. 
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 Industrial  and  Land  Transportation  Licensees,  and  Specialized  Mobile  Radio  Licensees.  355 
 154.  A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operates  and  is  not  dominant  in  its  field.  356  Nationwide  as  of 
 2002,  there  were  approximately  1.6  million  small  organizations.  357  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.  358  As  of  1997,  there  were  approximately  87,453  governmental  jurisdictions  in 
 the  United  States.  359  This  number  includes  39,044  county  governments,  municipalities  and  townships,  of  which  37,546  (approximately  96.2%)  have  populations  of  fewer  than 
 50,000,  and  of  which  1,498  have  populations  of  50,000  or  more.  Thus,  we  estimate  the  number  of  small  governmental  jurisdictions  overall  to  be  84,098  or  fewer.  Nationwide, 
 there  are  a  total  of  approximately  22.4  million  small  businesses,  according  to  SBA  data.  360 


 155.  Description  of  Projected  Reporting,  Recordkeeping  and  other  Compliance  Requirements.  We  do  not  adopt  new  reporting,  recordkeeping  or  other 
 compliance  requirement  in  this  MO&  O. 
 156.  Steps  Taken  to  Minimize  Significant  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered.  The  RFA  requires  an  agency  to  describe  any 


 significant  alternatives  that  it  has  considered  in  reaching  its  proposed  approach,  which  may  include  the  following  four  alternatives  (among  others):  (1)  the  establishment  of 
 differing  compliance  or  reporting  requirements  or  timetables  that  take  into  account  the  resources  available  to  small  entities;  (2)  the  clarification,  consolidation,  or  simplification 
 of  compliance  or  reporting  requirements  under  the  rule  for  small  entities;  (3)  the  use  of  performance,  rather  than  design,  standards;  and  (4)  an  exemption  from  coverage  of  the 
 rule,  or  any  part  thereof,  for  small  entities. 
 157.  As  noted  above,  we  reduce  the  size  of  the  Expansion  band  in  Atlanta,  rather  than  eliminating  the  Expansion  band  in  the  Atlanta  area.  Although  we  reduce  the 


 Expansion  band  in  Atlanta  by  .5  MHz,  we  maintain  spectral  separation  between  public  safety  and  ESMR  band  operations.  The  purpose  of  maintaining  spectral  separation 


 355  See  800  MHz  R&  O  at  Appendix  A. 
 356  5  U.  S.  C.    601(  4). 
 357  Independent  Sector,  The  New  Nonprofit  Almanac  &  Desk  Reference  (2002). 
 358  5  U.  S.  C.    601(  5). 
 359  U.  S.  Census  Bureau,  Statistical  Abstract  of  the  United  States:  2000,  Section  9,  pages  299-  300,  Tables 
 490  and  492. 
 360  See  SBA,  Programs  and  Services,  SBA  Pamphlet  No.  CO-  0028,  at  page  40  (July  2002). 
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 between  public  safety  licensees  operating  in  the  non-  cellular  band  and  ESMR  licensees  operating  in  the  cellular  band  is  to  reduce  the  incidence  of  interference  to  public  safety. 
 In  contrast,  if  we  had  eliminated  the  Expansion  band,  we  would  have  eliminated  any  spectral  separation  between  public  safety  and  ESMR  systems  operating  in  the  cellular 
 portion  of  the  band.  Further,  public  safety  will  continue  to  be  entitled  to  interference  protection  from  unacceptable  interference.  As  a  concession,  however,  some  Atlanta-based 
 B/  ILT  incumbents  who  would  otherwise  not  be  required  to  change  frequencies  will  be  required  to  relocate  to  the  Expansion  Band  in  order  to  accommodate  public 
 safety  licensees  relocating  below  the  Expansion  Band. 
 158.  Report  to  Congress.  The  Commission  will  send  a  copy  of  this  MO&  O,  including  this  Further  Final  Regulatory  Flexibility  Analysis  (Further  FRFA),  in  a  report  to 


 be  sent  to  Congress  and  the  General  Accounting  Office  pursuant  to  the  Congressional  Review  Act.  361  In  addition  the  Commission  will  send  a  copy  of  the  MO&  O  including  a 
 copy  of  this  Further  Supplemental  Final  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  SBA.  362  A  summary  of  this  MO&  O  and  this  analysis  will 
 also  be  published  in  the  Federal  Register.  363 
 159.  Paperwork  Reduction  Act  Analysis.  This  document  does  not  contain  [new  or  modified]  information  collection  requirements  subject  to  the  Paperwork 


 Reduction  Act  of  1995  (PRA),  Public  Law  104-  13.  In  addition,  therefore,  it  does  not  contain  any  new  or  modified  information  collection  burden  for  small  business  concerns 
 with  fewer  than  25  employees,  pursuant  to  the  Small  Business  Paperwork  Relief  Act  of  2002,  Public  Law  107-  198.  364 


 361  See  5  U.  S.  C.    801(  a)(  1)(  A). 
 362  See  5  U.  S.  C.    605(  b). 
 363  Id. 
 364  See  44  U.  S.  C.  3506(  c)(  4). 
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 APPENDIX  B 
 FINAL  RULES 
 PART  22    PUBLIC  MOBILE  SERVICES 
 160.  The  authority  citation  for  Part  22  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  222,  303,  309  and  332. 
 161.  The  title  for  Section  22.970  is  amended  to  replace  the  term  Part  90  ESMR  systems  with  Part  90    800  MHz  cellular  systems.  The  definition  for 


 unacceptable  interference  in  paragraph  (a)  of  Section  22.970  is  amended  to  reference  Part  90    800  MHz  cellular  systems  and  cellular  radiotelephone  systems. 


   22.970  Unacceptable  interference  to  Part  90  non-  cellular  800  MHz  licensees  from  cellular  radiotelephone  or  Part  90    800  MHz  cellular  systems. 
 (a)  Definition.  Except  as  provided  in  47  C.  F.  R.  90.617(  k),  unacceptable  interference  to  non-  cellular  Part  90  licensees  in  the  800  MHz  band  from  cellular 
 radiotelephone  or  Part  90    800  MHz  cellular  systems  will  be  deemed  to  occur  when  the  below  conditions  are  met: 


 *  *  *  *  * 
 162.  In  paragraph  (a)  of  Section  22.971  the  cross  reference  to  Section  22.972  is  replaced  with  a  cross  reference  to  22.972(  c). 


   22.971  Obligation  to  abate  unacceptable  interference. 
 (a)  Strict  Responsibility.  Any  licensee  who,  knowingly  or  unknowingly,  directly  or  indirectly,  causes  or  contributes  to  causing  unacceptable  interference  to  a  non-cellular 


 Part  90  licensee  in  the  800  MHz  band,  as  defined  in    22.970  of  this  chapter,  shall  be  strictly  accountable  to  abate  the  interference,  with  full  cooperation  and 
 utmost  diligence,  in  the  shortest  time  practicable.  Interfering  licensees  shall  consider  all  feasible  interference  abatement  measures,  including,  but  not  limited  to, 
 the  remedies  specified  in  the  interference  resolution  procedures  set  forth  in    22.972(  c)  of  this  chapter.  This  strict  responsibility  obligation  applies  to  all  forms  of 
 interference,  including  out-  of-  band  emissions  and  intermodulation. 
 *  *  *  *  * 
 163.  In  paragraph  (c)  of  Section  22.972  the  term  Part  90  ESMR  systems  is  replaced  with  the  term  Part  90    800  MHz  cellular  systems. 


   22.972  Interference  resolution  procedures. 
 *  *  *  *  * 
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 (c)  Mitigation  Steps.  (1)  All  Cellular  Radiotelephone  and  Part  90    800  MHz  cellular  system  licensees  who  are  responsible  for  causing  unacceptable  interference 
 shall  take  all  affirmative  measures  to  resolve  such  interference.  Cellular  Radiotelephone  licensees  found  to  contribute  to  unacceptable  interference,  as 
 defined  in    22.970,  shall  resolve  such  interference  in  the  shortest  time  practicable.  Cellular  Radiotelephone  licensees  and  Part  90    800  MHz  cellular  system  licensees 
 must  provide  all  necessary  test  apparatus  and  technical  personnel  skilled  in  the  operation  of  such  equipment  as  may  be  necessary  to  determine  the  most 
 appropriate  means  of  timely  eliminating  the  interference.  However,  the  means  whereby  interference  is  abated  or  the  cell  parameters  that  may  need  to  be  adjusted 
 is  left  to  the  discretion  of  the  Cellular  Radiotelephone  and/  or  Part  90    800  MHz  cellular  system  licensees,  whose  affirmative  measures  may  include,  but  not  be 
 limited  to,  the  following  techniques: 
 *  *  *  *  * 
 PART  90    PRIVATE  LAND  MOBILE  RADIO  SERVICES 
 164.  The  authority  citation  for  Part  90  continues  to  read  as  follows: 
 AUTHORITY:  4(  i),  11,  303(  g),  303(  r),  and  302(  c)(  7)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.  154(  i),  161,  303(  g),  303(  r),  332(  c)(  7). 


 165.  In  Section  90.7,  the  definition  for  800  MHz  Cellular  System  is  changed,  a  new  definition  for  800  MHz  High  Density  Cellular  System  is  added  and  the  definition 
 for  Critical  Infrastructure  Industry  is  modified. 
   90.7  Definitions. 
 800  MHz  Cellular  System.  In  the  806-  824  MHz/  851-  869  MHz  band,  a  system  that  uses  multiple,  interconnected,  multi-  channel  transmit/  receive  cells  capable  of 


 frequency  reuse  and  automatic  handoff  between  cell  sites  to  serve  a  larger  number  of  subscribers  than  is  possible  using  non-  cellular  technology. 


 800  MHz  High  Density  Cellular  System.  In  the  806-  824  MHz/  851-  869  MHz  band,  a  high  density  cellular  system  is  defined  as  a  cellular  system  which: 
 (1)  has  more  than  five  overlapping  interactive  sites  featuring  hand-  off  capability;  and 
 (2)  any  one  of  such  sites  has  an  antenna  height  of  less  than  30.4  meters  (100  feet)  above  ground  level  with  an  antenna  height  above  average  terrain  (HAAT)  of 
 less  than  152.4  meters  (500  feet)  and  twenty  or  more  paired  frequencies. 
 *  *  *  *  * 
 Critical  Infrastructure  Industry  (CII).  State,  local  government  and  non-government  entities,  including  utilities,  railroads,  metropolitan  transit  systems, 
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 pipelines,  private  ambulances,  volunteer  fire  departments,  and  not-  for-  profit  organizations  that  offer  emergency  road  services,  providing  private  internal  radio 
 services  provided  these  private  internal  radio  services  (i)  are  used  to  protect  safety  of  life,  health,  or  property;  and  (ii)  are  not  made  commercially  available  to  the  public. 


 *  *  *  *  * 
 166.  Paragraph  (j)(  8)  of  Section  90.175  is  updated  to  indicate  that  in  the  800  MHz  band  only  EA-  based  applicants  for  SMR  frequencies  will  be  exempt  from 


 frequency  coordination.  SMR  applicants  in  the  900  MHz  band  will  continue  to  be  exempt  from  frequency  coordination. 


 * 
 (j)  *  *  * 
 (8)  Applications  for  SMR  frequencies  contained  in    90.617(  d)  Table  4A,  90.617(  e),  90.617(  f)  and  90.619(  b)(  2). 


 167.  In  the  title  of  Section  90.614,  the  terms  cellular  and  non-  cellular  are  removed.  In  paragraphs  (a),  (b)  and  (c)  of  Sections  90.614,  the  term  800  MHz  cellular 
 systems  is  replaced  by  the  term  800  MHz  high  density  cellular  systems. 
   90.614  Segments  of  the  806-  824/  851-  869  MHz  band  for  non-  border  areas. 
 The  806-  824/  851-  869  MHz  band  (  800  MHz  band)  will  be  divided  as  follows  at  locations  farther  then  110  km  (68.4  miles)  from  the  U.  S./  Mexico  border  and  140  km 


 (87  miles)  from  the  U.  S./  Canadian  border  (  non-  border  areas) 
 (a)  800  MHz  high  density  cellular  systems    as  defined  in    90.7    are  prohibited  from  operating  on  channels  1-  550  in  non-  border  areas. 


 (b)  800  MHz  high  density  cellular  systems    as  defined  in    90.7    are  permitted  to  operate  on  channels  551-  830  in  non-  border  areas. 
 (c)  In  the  following  counties  and  parishes,  800  MHz  high  density  cellular  systems    as  defined  in    90.7    are  permitted  to  operate  on  channels  411-  830:  *** 
 168.  In  paragraph  (a)  of  Section  90.615  the  term  ESMR  is  replaced  with  the  term  licensee  relocating  to  channels  551-  830. 
   90.615  Individual  channels  available  in  the  General  Category  in  806-  824/  851-  869  MHz  band. 
 *  *  *  *  * 
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 (a)  In  a  given  800  MHz  NPSPAC  region,  any  channel  in  the  231-  260  range  which  is  vacated  by  a  licensee  relocating  to  channels  551-  830  and  which  remains 
 vacant  after  band  reconfiguration  will  be  available  as  follows:*** 
 *  *  *  *  * 
 169.  In  paragraphs  (a),  (b),  (d),  (e),  (i),  (j)  and  (k)  of  Section  90.617  the  term  800  MHz  cellular  systems  is  replaced  by  the  term  800  MHz  high  density  cellular 


 systems.  In  paragraphs  (a),  (b),  (d),  (i),  and  (j)  the  term  non-  cellular  is  removed.  New  paragraphs  (a)(  2),  (a)(  3),  (b)(  1),  (b)(  2),  (d)(  1)  and  (d)(  2)  are  added  to  Section 
 90.617  to  detail  the  distribution  of  channels  between  the  various  pool  categories  in  the  SouthernLINC/  Nextel  counties  listed  in  Section  90.614(  c).  In  paragraph  (j)  of  Section 
 90.617  the  term  ESMR  systems  is  replaced  by  the  term  800  MHz  high  density  cellular  systems.  In  paragraph  (g)  and  (h)  the  reference  to  channel  470  is  replaced  with  a 
 reference  to  channel  471.  In  paragraph  (g)  the  reference  to  ESMR  is  replaced  with  the  term  licensees  relocating  to  channels  511-  830. 


   90.617  Frequencies  in  the  809.750-  824/  854.750-  869  MHz,  and  896-  901/  935-  940  MHz  bands  available  for  trunked,  conventional  or  cellular  system  use  in 
 non-  border  areas. 
 *  *  *  *  * 
 (a)  Unless  otherwise  specified,  the  channels  listed  in  Table  1  and  paragraph  (a)(  1)  of  this  section  are  available  for  to  eligible  applicants  in  the  Public  Safety 


 Category  which  consists  of  licensees  eligible  in  the  Public  Safety  Pool  of  subpart  B  of  this  part.  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are 
 prohibited  on  these  channels.  These  frequencies  are  available  in  non-  border  areas.  Specialized  Mobile  Radio  Systems  will  not  be  authorized  in  this  category.  These 
 channels  are  available  for  intercategory  sharing  as  indicated  in  90.621(  e). 
 TABLE  1    PUBLIC  SAFETY  POOL  806-  816/  851-  861  MHZ  BAND  CHANNELS  (70  CHANNELS) 


 Group  No.  Channel  Nos.  269  269-  289-  311-  399-  439 
 270  270-  290-  312-  400-  440  279  279-  299-  319-  339-  359 
 280  280-  300-  320-  340-  360  309  309-  329-  349-  369-  389 
 310  310-  330-  350-  370-  390  313  313-  353-  393-  441-  461 
 314  314-  354-  394-  448-  468  321  321-  341-  361-  381-  419 
 328  328-  348-  368-  388-  420  351  351-  379-  409-  429-  449 
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 332  352-  380-  410-  430-  450  Single  Channels  391,  392,  401,  408,  421, 
 428,  459,  460,  469,  470 


 (1)  Channels  numbers  1  230  are  also  available  to  eligible  applicants  in  the  Public  Safety  Category  in  non-  border  areas.  The  assignment  of  these  channels  will 
 be  done  in  accordance  with  the  policies  defined  in  the  Report  and  Order  of  Gen.  Docket  No.  87  112  (See  90.16).  The  following  channels  are  available  only  for 
 mutual  aid  purposes  as  defined  in  Gen.  Docket  No.  87-  112:  channels  1,  39,  77,  115,  153. 


 (2)  Except  as  provided  in  paragraph  (a)(  3),  the  channels  listed  in  Table  1A  are  available  in  the  counties  listed  in    90.614(  c)  to  eligible  applicants  in  the  Public 
 Safety  Category.  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are  available  for  intercategory 
 sharing  as  indicated  in  90.621(  e). 
 TABLE  1A    PUBLIC  SAFETY  POOL  806-  816/  851-  861  MHZ  BAND  CHANNELS  FOR  COUNTIES  IN  SOUTHEASTERN  U.  S.  (70  CHANNELS) 


 Group  No.  Channel  Nos.  261  261-  313-  324-  335-  353 
 262  262-  314-  325-  336-  354  265  265-  285-  315-  333-  351 
 266  266-  286-  316-  334-  352  269  269-  289-  311-  322-  357 
 270  270-  290-  312-  323-  355  271  271-  328-  348-  358-  368 
 279  279-  299-  317-  339-  359  280  280-  300-  318-  340-  360 
 309  309-  319-  329-  349-  369  310  310-  320-  330-  350-  370 
 321  321-  331-  341-  361-  372  Single  Channels  326,  327,  332,  337,  338, 
 342,  343,  344,  345,  356, 


 (3)  The  channels  listed  in  Table  1B  are  available  within  113  km  (70  mi)  of  the  center  city  coordinates  of  Atlanta,  GA  to  eligible  applicants  in  the  Public  Safety 
 Category.  The  center  city  coordinates  of  Atlanta,  GA  for  the  purposes  of  the  rule  are  defined  as  33  44  55  NL,  84  23  17  WL.  800  MHz  high  density  cellular 
 systems  as  defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are  available  for  intercategory  sharing  as  indicated  in  90.621(  e). 
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 TABLE  1B    PUBLIC  SAFETY  POOL  806-  816/  851-  861  MHZ  BAND  CHANNELS  FOR  ATLANTA,  GA  (70  CHANNELS) 
 Group  No.  Channel  Nos.  261  261-  313-  324-  335-  353 
 262  262-  314-  325-  336-  354  269  269-  289-  311-  322-  357 
 270  270-  290-  312-  323-  355  279  279-  299-  319-  339-  359 
 280  280-  300-  320-  340-  360  285  285-  315-  333-  351-  379 
 286  286-  316-  334-  352-  380  309  309-  329-  349-  369-  389 
 310  310-  330-  350-  370-  390  321  321-  331-  341-  361-  381 
 328  328-  348-  358-  368-  388  Single  Channels  317,  318,  326,  327,  332, 
 337,  338,  356,  371,  372 


 (b)  Unless  otherwise  specified,  the  channels  listed  in  Table  2  are  available  to  applicants  eligible  in  the  Industrial/  Business  Pool  of  subpart  C  of  this  part  but 
 exclude  Special  Mobilized  Radio  Systems  as  defined  in  90.603(  c).  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are  prohibited  on  these  channels. 
 These  frequencies  are  available  in  non-  border  areas.  Specialized  Mobile  Radio  (SMR)  systems  will  not  be  authorized  on  these  frequencies.  These  channels  are 
 available  for  inter-  category  sharing  as  indicated  in    90.621(  e). 
 TABLE  2    BUSINESS/  INDUSTRIAL/  LAND  TRANSPORTATION  POOL  806-  816/  851-  861  MHZ  BAND  CHANNELS  (100  CHANNELS) 


 Group  No.  Channel  Nos.  322  322-  362-  402-  442-  482 
 323  323-  363-  403-  443-  483  324  324-  364-  404-  444-  484 
 325  325-  365-  405-  445-  485  326  326-  366-  406-  446-  486 
 327  327-  367-  407-  447-  487  342  342-  382-  422-  462-  502 
 343  343-  383-  423-  463-  503  344  344-  384-  424-  464-  504 
 345  345-  385-  425-  465-  505  346  346-  386-  426-  466-  506 
 347  347-  387-  427-  467-  507 
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 Single  Channels  261,  271,  281,  291,  301,  262,  272,  282,  292,  302, 
 263,  273,  283,  293,  303,  264,  274,  284,  294,  304, 
 265,  275,  285,  295,  305,  266,  276,  286,  296,  306, 
 267,  277,  287,  297,  307,  268,  278,  288,  298,  308 


 (1)  Except  as  provided  in  paragraph  (b)(  2),  the  channels  listed  in  Table  2A  are  available  in  the  counties  listed  in    90.614(  c)  to  eligible  applicants  in  the 
 Industrial/  Business  Pool  of  subpart  C  of  this  part  but  exclude  Special  Mobilized  Radio  Systems  as  defined  in  90.603(  c).  800  MHz  high  density  cellular  systems  as 
 defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are  available  for  intercategory  sharing  as  indicated  in  90.621(  e). 


 TABLE  2A    BUSINESS/  INDUSTRIAL/  LAND  TRANSPORTATION  POOL  806-  816/  851-  861  MHZ  BAND  FOR  CHANNESL  IN  SOUTHEASTERN  U.  S  (69 
 CHANNELS) 
 Single  Channels  Channel  Nos.  263,  264,  267,  268,  272, 


 273,  274,  275,  276,  277,  278,  281,  282,  283,  284, 
 287,  288,  291,  292,  293,  294,  295,  296,  297,  298, 
 301,  302,  303,  304,  305,  306,  307,  308,  346,  347, 
 362,  363,  364,  365,  366,  367,  379,  380,  381,  382, 
 383,  384,  385,  386,  387,  388,  389,  390,  391,  392, 
 393,  394,  399,  400,  401,  402,  403,  404,  405,  406, 
 407,  408,  409,  410. 


 (2)  The  channels  listed  in  Table  2B  are  available  within  113  km  (70  mi)  of  the  center  city  coordinates  of  Atlanta,  GA  to  eligible  applicants  in  the  Industrial/  Business 
 Pool  of  subpart  C  of  this  part  but  exclude  Special  Mobilized  Radio  Systems  as  defined  in  90.603(  c).  The  center  city  coordinates  of  Atlanta,  GA  for  the  purposes 
 of  the  rule  are  defined  as  33  44  55  NL,  84  23  17  WL.  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are  prohibited  on  these  channels.  These 
 channels  are  available  for  intercategory  sharing  as  indicated  in  90.621(  e). 
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 TABLE  2B    BUSINESS/  INDUSTRIAL/  LAND  TRANSPORTATION  POOL  806-  816/  851-  861  MHZ  BAND  FOR  CHANNELS  IN  ATLANTA,  GA  (69  CHANNELS) 
 Channel  Nos.  Single  Channels  263,  264,  265,  266,  267, 
 268,  271,  272,  273,  274,  275,  276,  277,  278,  281, 
 282,  283,  284,  287,  288,  291,  292,  293,  294,  295, 
 296,  297,  298,  301,  302,  303,  304,  305,  306,  307, 
 308,  342,  343,  344,  345,  346,  347,  362,  363,  364, 
 365,  366,  367,  382,  383,  384,  385,  386,  387,  391, 
 392,  393,  394,  399,  400,  401,  402,  403,  404,  405, 
 406,  407,  409,  410 


 *  *  *  *  * 
 (d)  Unless  otherwise  specified,  the  channels  listed  in  Tables  4A  and  4B  are  available  only  to  eligibles  in  the  SMR  category  which  consists  of  Specialized 


 Mobile  Radio  (SMR)  stations  and  eligible  end  users.  800  MHz  high  density  cellular  systems,  as  defined  in  90.7,  are  prohibited  on  these  channels.  These  frequencies 
 are  available  in  non-  border  areas.  The  spectrum  blocks  listed  in  Table  4A  are  available  for  EA-  based  services  (as  defined  by  90.681)  prior  to  January  21,  2005. 
 No  new  EA-  based  services  will  be  authorized  after  January  21,  2005.  EA-  based  licensees  who  operate  non-  high-  density  cellular  systems  prior  to  January  21,  2005 
 may  choose  to  remain  on  these  channels  in  the  non-  high-  density  cellular  portion  of  the  800  MHz  band  (as  defined  in  90.614).  These  licensees  may  continue  to 
 operate  non-  high-  density  cellular  systems  and  will  be  grandfathered  indefinitely.  The  channels  listed  in  Table  4B  will  be  available  for  site-  based  licensing  after  January  21, 
 2005  in  any  Economic  Area  where  no  EA-  based  licensee  is  authorized  for  these  channels. 


 TABLE  4A    EA-  BASED  SMR  CATEGORY  806-  816/  851-  861  MHZ  BAND  CHANNELS,  AVAILABLE  PRIOR  TO  JANUARY  21,  2005  (80  CHANNELS.) 
 Spectrum  Block  Channel  Nos.  G  311-  351-  391-  431-  471 
 H  312-  352-  392-  432-  472  I  313-  353-  393-  433-  473 
 J  314-  354-  394-  434-  474 
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 K  315-  355-  395-  435-  475  L  316-  356-  396-  436-  476 
 M  317-  357-  397-  437-  477  N  318-  358-  398-  438-  478 
 O  331-  371-  411-  451-  491  P  332-  372-  412-  452-  492 
 Q  333-  373-  413-  453-  493  R  334-  374-  414-  454-  494 
 S  335-  375-  415-  455-  495  T  336-  376-  416-  456-  496 
 U  337-  377-  417-  457-  497  V  338-  378-  418-  458-  498 


 TABLE  4B    SMR  CATEGORY  806-  816/  851-  861  MHZ  BAND  CHANNELS,  AVAILABLE  AFTER  JANUARY  21,  2005,  FOR  SITE-  BASED  LICENSING  (80 
 CHANNELS.) 
 Group  No.  Channel  Nos.  315  315-  355-  395-  435-  475 


 316  316-  356-  396-  436-  476  317  317-  357-  397-  437-  477 
 318  318-  358-  398-  438-  478  331  331-  371-  411-  451-  491 
 332  332-  372-  412-  452-  492  333  333-  373-  413-  453-  493 
 334  334-  374-  414-  454-  494  335  335-  375-  415-  455-  495 
 336  336-  376-  416-  456-  496  337  337-  377-  417-  457-  497 
 338  338-  378-  418-  458-  498  Single  Channels  431,  432,  433,  434,  471, 
 472,  473,  474,  479,  480,  481,  488,  489,  490,  499, 
 500,  501,  508,  509,  510 


 (1)  Except  as  provided  in  paragraph  (d)(  2),  the  channels  listed  in  Table  4C  are  available  in  the  counties  listed  in    90.614(  c)  for  non-  high-  density  cellular  operations 
 only  to  eligibles  in  the  SMR  category  which  consists  of  Specialized  Mobile  Radio  (SMR)  stations  and  eligible  end  users.  800  MHz  high  density  cellular  systems  as 
 defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are  available  for  intercategory  sharing  as  indicated  in  90.621(  e). 
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 TABLE  4C    SMR  CATEGORY  806-  816/  851-  861  MHZ  BAND  CHANNELS  AVAILABLE  FOR  SITE-  BASED  LICENSING  IN  SOUTHEASTERN  U.  S.  AFTER 
 JANUARY  21,  2005  (11  CHANNELS.) 
 Single  Channels  Channel  Nos.  371,  373,  374,  375,  376, 


 377,  378,  395,  396,  397,  398 


 (2)  The  channels  listed  in  Table  4D  are  available  within  113  km  (70  mi)  of  the  center  city  coordinates  of  Atlanta,  GA  only  to  eligibles  in  the  SMR  category  which 
 consists  of  Specialized  Mobile  Radio  (SMR)  stations  and  eligible  end  users.  The  center  city  coordinates  of  Atlanta,  GA  for  the  purposes  of  this  rule  are  defined  as 
 33  44  55  NL,  84  23  17  WL.  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are  available  for 
 intercategory  sharing  as  indicated  in  90.621(  e).  800  MHz  high  density  cellular  systems  as  defined  in    90.7  are  prohibited  on  these  channels.  These  channels  are 
 available  for  intercategory  sharing  as  indicated  in  90.621(  e). 
 TABLE  4D    SMR  CATEGORY  806-  816/  851-  861  MHZ  BAND  CHANNELS  AVAILABLE  FOR  SITE-  BASED  LICENSING  IN  ATLANTA,  GA  AFTER  JANUARY 


 21,  2005  (11  CHANNELS.) 


 Channel  Nos.  Single  Channels  373,  374,  375,  376,  377, 
 378,  395,  396,  397,  398,  408 


 (e)  The  Channels  listed  in  90.614(  b)  and  (c)  are  available  to  eligibles  in  the  SMR  category  which  consists  of  Specialized  Mobile  Radio  (SMR)  stations  and 
 eligible  end  users.  ESMR  licensees  which  employ  an  800  MHz  high  density  cellular  system,  as  defined  in  90.7,  are  permitted  to  operate  on  these  channels  in  non-border 
 areas.  ESMR  licensees  authorized  prior  to  January  21,  2005  may  continue  to  operate,  if  they  so  choose,  on  the  channels  listed  in  Table  5.  These  licensees  will  be 
 grandfathered  indefinitely. 
 TABLE  5    ESMR  CATEGORY  816-  821/  861-  866  MHZ  BAND  CHANNELS  FOR  CELLULAR  OPERATIONS  IN  NON-  BORDER  AREAS  AVAILABLE  PRIOR  TO 


 January  21,  2005.  (200  CHANNELS) 
 Spectrum  Block  Channel  Nos.  A  511  through  530 


 B  531  through  590 
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 C  591  through  710 
 *  *  *  *  * 
 (g)  In  a  given  800  MHz  NPSPAC  region,  channels  below  471  listed  in  Tables  2  and  4B  which  are  vacated  by  licensees  relocating  to  channels  511-  830  and  which 


 remain  vacant  after  band  reconfiguration  will  be  available  as  follows:  *** 
 (h)  In  a  given  800  MHz  NPSPAC  region,  channels  below  471  listed  in  Tables  2  and  4B  which  are  vacated  by  a  licensee  relocating  to  channels  511-  550  and  remain 


 vacant  after  band  reconfiguration  will  be  available  as  follows:  *** 
 (i)  Special  Mobilized  Radio  Systems  licensees  who  operate  systems,  other  than  800  MHz  high  density  cellular  systems,  on  any  of  the  public  safety  channels  listed  in 


 Table  1  prior  to  January  21,  2005  are  grandfathered  and  may  continue  to  operate  on  these  channels  indefinitely.  These  grandfathered  licensees  will  be  prohibited  from 
 operating  800  MHz  high  density  cellular  systems  as  defined  in  90.7.  Site-  based  licensees  who  are  grandfathered  on  any  of  the  public  safety  channels  listed  in  Table 
 1  may  modify  their  license  only  if  they  obtain  concurrence  from  a  certified  public  safety  coordinator  in  accordance  with  90.175(  c).  Grandfathered  EA-  based 
 licensees,  however,  are  exempt  from  any  of  the  frequency  coordination  requirements  of  90.175  as  long  as  their  operations  remain  within  the  Economic 
 Area  defined  by  their  license  in  accordance  with  the  requirements  of  90.683(  a). 
 (j)  Licensees  operating  800  MHz  high  density  cellular  systems  on  the  channels  listed  in    90.614(  a),  prior  to  January  21,  2005,  may  elect  to  continue  operating  on 


 these  channels  and  will  be  permitted  to  continue  operating  800  MHz  high  density  cellular  systems  (as  defined  in  90.7)  in  this  portion  of  the  band.  These  licensees 
 will  be  grandfathered  indefinitely  subject  to  the  provisions  of    90.673,  90.674  and  90.675. 


 (k)  Licensees  may  operate  systems  other  than  800  MHz  high  density  cellular  systems  (as  defined  in  90.7)  on  Channels  511  550  at  any  location  vacated  by  an 
 EA-  based  SMR  licensee.  For  operations  on  these  channels,  unacceptable  interference  (as  defined  in  22.970  of  this  chapter  and  90.672)  will  be  deemed  to 
 occur  only  at  sites  where  the  following  median  desired  signals  are  received  (rather  than  those  specified  in  22.970(  a)(  1)(  i)  of  this  chapter  and  90.672(  a)(  1)(  i)).  The 
 minimum  required  median  desired  signal,  as  measured  at  the  R.  F.  input  of  the  receiver,  will  be  as  follows:*** 


 *  *  *  *  * 
 170.  In  paragraph  (d)(  2)  of  Section  90.619  the  cross  reference  to  Section  90.619(  b)(  2)  is  replaced  with  a  cross  reference  to  Section  90.619(  b). 
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   90.619  Frequencies  available  for  use  in  the  U.  S./  Mexico  and  U.  S.  Canada  border  areas. 
 *  *  *  *  * 
 (d)  *  *  * 
 (2)  All  frequency  assignments  made  pursuant  to  paragraph  (d)(  1)  of  this  section  shall  comply  with  the  requirements  of  90.619(  b). 


 171.  The  title  for  Section  90.672  is  amended  to  replace  the  term  ESMR  systems  with  the  term  800  MHz  cellular  systems.  In  paragraph  (a)  of  Section  90.672 
 a  reference  to  800  MHz  cellular  systems  and  Part  22  Cellular  Radiotelephone  systems  is  added. 


   90.672  Unacceptable  interference  to  non-  cellular  800  MHz  licensees  from  800  MHz  cellular  systems  or  Part  22  Cellular  Radiotelephone  systems. 
 (a)  Definition.  Except  as  provided  in  47  C.  F.  R.  90.617(  k),  unacceptable  interference  to  non-  cellular  licensees  in  the  800  MHz  band  from  800  MHz  cellular 
 systems  or  Part  22  Cellular  Radiotelephone  systems  will  be  deemed  to  occur  when  the  below  conditions  are  met:  *** 


 *  *  *  *  * 
 172.  In  paragraph  (a)  of  Section  90.674  the  term  harmful  interference  is  replaced  with  the  term  unacceptable  interference.  In  paragraph  (c)  of  Section  90.674 


 the  term  ESMR  licensees  is  replaced  with  800  MHz  cellular  system  licensees 
   90.674  Interference  resolution  procedures  before,  during  and  after  band  reconfiguration. 


 (a)  Initial  Notification.  Any  non-  cellular  licensee  operating  in  the  806-  824/  851-  869  MHz  band  who  reasonably  believes  it  is  receiving  unacceptable  interference,  as 
 described  in    90.672,  shall  provide  an  initial  notification  of  the  interference  incident.  This  initial  notification  of  an  interference  incident  shall  be  sent  to  all  Part  22  Cellular 
 Radiotelephone  licensees  and  ESMR  licensees  who  operate  cellular  base  stations  (  cell  sites)  within  1,524  meters  (5,000  feet)  of  the  interference  incident. 


 *  *  *  *  * 
 (c)  Mitigation  Steps.  (1)  All  800  MHz  cellular  system  licensees  and  Part  22  Cellular  Radiotelephone  licensees  who  are  responsible  for  causing  unacceptable 


 interference  shall  take  all  affirmative  measures  to  resolve  such  interference.  800  MHz  cellular  system  licensees  found  to  contribute  to  harmful  interference,  as  defined 
 in    90.672,  shall  resolve  such  interference  in  the  shortest  time  practicable.  800  MHz  cellular  system  licensees  and  Part  22  Cellular  Radiotelephone  licensees  must 
 provide  all  necessary  test  apparatus  and  technical  personnel  skilled  in  the  operation 
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 of  such  equipment  as  may  be  necessary  to  determine  the  most  appropriate  means  of  timely  eliminating  the  interference.  However,  the  means  whereby  interference  is 
 abated  or  the  cell  parameters  that  may  need  to  be  adjusted  is  left  to  the  discretion  of  involved  800  MHz  cellular  system  licensees  and/  or  Part  22  Cellular  Radiotelephone 
 licensees,  whose  affirmative  measures  may  include,  but  not  be  limited  to,  the  following  techniques: 


 *  *  *  *  * 
 173.  In  the  title  of  Section  90.676  the  term  cellular  systems  is  replaced  by  the  term  high-  density  cellular  systems.  Paragraphs  (b)(  3)  and  (4)  of  Section  90.676  are 


 updated  to  allow  the  Transition  Administrator  to  choose  the  date  for  filing  quarterly  and  annual  reports.  Paragraph  (b)(  5)  of  Section  90.676  is  updated  to  clarify  the  procedures 
 for  dispute  resolution. 
   90.676  Transition  administrator  for  reconfiguration  of  the  806-  824/  851-  869  MHz  band  in  order  to  separate  high-  density  cellular  systems  from  non-  cellular 


 systems. 
 *  *  *  *  * 
 (b)  *  *  * 
 (3)  Provide  quarterly  progress  reports  to  the  Commission  in  such  detail  as  the  Commission  may  require  and  include,  with  such  reports,  certifications  by  Nextel  and 


 the  relevant  licensees  that  relocation  has  been  completed  and  that  both  parties  agree  on  the  amount  received  from  the  letter  of  credit  proceeds  in  connection  with 
 relocation  of  the  licensees  facilities.  The  report  shall  include  description  of  any  disputes  that  have  arisen  and  the  manner  in  which  they  were  resolved.  These 
 quarterly  reports  need  not  be  audited.  The  Transition  Administrator  may  select  the  dates  for  filing  the  quarterly  progress  reports; 


 (4)  Provide  to  the  Public  Safety  and  Critical  Infrastructure  Division  with  an  annual  audited  statement  of  relocation  funds  expended  to  date,  including  salaries 
 and  expenses  of  Transition  Administrator.  The  Transition  Administrator  may  select  the  date  for  filing  the  annual  audited  statement; 


 (5)  Facilitate  resolution  of  disputes  by  mediation;  or  referral  of  the  parties  to  alternative  dispute  resolution  services  as  described  in  90.677(  d). 
 *  *  *  *  * 
 174.  In  the  title  and  opening  paragraph  of  Section  90.677  the  term  cellular  systems  is  replaced  by  the  term  high-  density  cellular  systems.  Paragraph  (d)  in 


 Section  90.677  is  amended  to  remove  a  reference  to  the  Transition  Administrator  resolving  conflicts  within  30-  working  days. 
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   90.677  Reconfiguration  of  the  806-  824/  851-  869  MHz  band  in  order  to  separate  high-  density  cellular  systems  from  non-  cellular  systems. 
 In  order  to  facilitate  reconfiguration  of  the  806-  824/  851-  869  MHz  band  (  800  MHz  band)  to  separate  high-  density  cellular  systems  from  non-  cellular  systems,  Nextel 
 Communications,  Inc.  (Nextel)  may  relocate  incumbents  within  the  800  MHz  band  by  providing  comparable  facilities.  For  the  limited  purpose  of  band  reconfiguration, 
 the  provisions  of    90.157  shall  not  apply  and  inter-  category  sharing  will  be  permitted  under  all  circumstances.  Such  relocation  is  subject  to  the  following 
 provisions: 
 *  *  *  *  * 
 (d)  Transition  Administrator. 
 (1)  The  Transition  Administrator,  or  other  mediator,  shall  attempt  to  resolve  disputes  referred  to  it  before  the  conclusion  of  the  mandatory  negotiation  period  as 


 described  in    90.677(  c)  within  thirty  working  days  after  the  Transition  Administrator  has  received  a  submission  by  one  party  and  a  response  from  the  other  party.  Any 
 party  thereafter  may  seek  expedited  non-  binding  arbitration  which  must  be  completed  within  thirty  days  of  the  Transition  Administrator's,  or  other  mediator's 
 recommended  decision  or  advice.  Should  issues  still  remain  unresolved  they  may  be  referred  to  the  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division  of  the 
 Wireless  Telecommunications  Bureau  within  thirty  days  of  the  Transition  Administrator's,  or  other  mediator's  recommended  decision  or  advice.  When 
 referring  an  unresolved  matter  to  the  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division,  the  Transition  Administrator  shall  forward  the  entire  record  on 
 any  disputed  issues,  including  such  dispositions  thereof  that  the  Transition  Administrator  has  considered.  Upon  receipt  of  such  record  and  advice,  the 
 Commission  will  decide  the  disputed  issues  based  on  the  record  submitted.  The  authority  to  make  such  decisions  is  delegated  to  the  Chief  of  the  Public  Safety  and 
 Critical  Infrastructure  Division  of  the  Wireless  Telecommunications  Bureau  who  may  decide  the  disputed  issue  or  designate  it  for  an  evidentiary  hearing  before  an 
 Administrative  Law  Judge.  If  the  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division  of  the  Wireless  Telecommunications  Bureau  decides  an  issue,  any  party  to 
 the  dispute  wishing  to  appeal  the  decision  may  do  so  by  filing  with  the  Commission,  within  ten  days  of  the  effective  date  of  the  initial  decision,  a  Petition  for  de  novo 
 review;  whereupon  the  matter  will  be  set  for  an  evidentiary  hearing  before  an  Administrative  Law  Judge.  Any  disputes  submitted  to  the  Transition  Administrator 
 after  the  conclusion  of  the  mandatory  negotiation  period  as  described  in    90.677(  c)  shall  be  resolved  as  described  in    90.677(  d)(  2). 


 (2)  If  no  agreement  is  reached  during  either  the  voluntary  or  mandatory  negotiating  periods,  all  disputed  issues  shall  be  referred  to  the  Transition 
 Administrator  who  shall  attempt  to  resolve  them.  If  disputed  issues  remain  thirty  working  days  after  the  end  of  the  mandatory  negotiation  period;  the  Transition 
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 89 
 Administrator  shall  forward  the  record  to  the  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division,  together  with  advice  on  how  the  matter(  s)  may  be  resolved. 
 The  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division  is  hereby  delegated  the  authority  to  rule  on  disputed  issues,  de  novo.  If  the  Chief  of  the  Public  Safety 
 and  Critical  Infrastructure  Division  of  the  Wireless  Telecommunications  Bureau  decides  an  issue,  any  party  to  the  dispute  wishing  to  appeal  the  decision  may  do  so 
 by  filing  with  the  Commission,  within  ten  days  of  the  effective  date  of  the  initial  decision,  a  Petition  for  de  novo  review;  whereupon  the  matter  will  be  set  for  an 
 evidentiary  hearing  before  an  Administrative  Law  Judge. 
 *  *  *  *  * 
 175.  A  new  paragraph  (e)  is  added  to  Section  90.685  as  follows: 
   90.685  Authorization,  construction  and  implementation  of  EA  licenses. 
 *  *  *  *  * 
 (e)  EA  licensees  operating  on  channels  listed  in    90.614  (b)  and  (c)  must  implement  an  Enhanced  Specialized  Mobile  Radio  (ESMR)  system  as  defined  in   


 90.7  on  their  EA  license  and  any  associated  site-  based  licenses  prior  to  the  expiration  date  of  the  EA  license.  EA  licensees  operating  on  these  channels  shall 
 follow  the  construction  notification  procedures  set  forth  in    1.946(  d)  of  this  chapter.  Failure  to  implement  an  ESMR  system  on  their  EA  and  site-  based  licenses  before 
 the  expiration  date  of  the  EA  license  will  result  in  termination  of  the  EA  license  and  any  associated  site-  based  licenses  pursuant  to    1.946(  c)  of  this  chapter. 
89