*Pages 1--255 from  Microsoft Word - 42233*
 Federal  Communications  Commission  FCC  04-  168 
 1 
 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 


 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 )  ) 
 ) 


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


 REPORT  AND  ORDER,  FIFTH  REPORT  AND  ORDER,  FOURTH  MEMORANDUM  OPINION  AND  ORDER,  AND  ORDER 
 Adopted:  July  8,  2004  Released:  August  6,  2004 
 By  the  Commission:  Chairman  Powell,  Commissioners  Abernathy,  Copps,  and  Adelstein  issuing  separate  statements. 


 TABLE  OF  CONTENTS 
 Heading  Paragraph  # 
 I.  INTRODUCTION..................................................................................................................................  1  II.  EXECUTIVE  SUMMARY....................................................................................................................  8 
 III.  MAJOR  FINDINGS  AND  DECISIONS  .............................................................................................  13  A.  The  800  MHz  Interference  Problem  and  Solutions  .......................................................................  13 
1
 Federal  Communications  Commission  FCC  04-  168 
 2 
 B.  Entitlement  to  Interference  Protection  ...........................................................................................  19  C.  800  MHz  Band  Reconfiguration....................................................................................................  21 
 D.  Band  Reconfiguration  Process.......................................................................................................  26  E.  Guarantee  of  Sufficient  Funds  for  Band  Reconfiguration  .............................................................  29 
 F.  Equitable  Compensation  for  Band  Reconfiguration  ......................................................................  31  IV.  REGULATORY  BACKGROUND......................................................................................................  36 
 A.  800  MHz  Band...............................................................................................................................  36  B.  700  MHz  Band...............................................................................................................................  40 
 C.  900  MHz  Band...............................................................................................................................  42  D.  1.9  GHz  Band  ................................................................................................................................  47 
 1.  1910-  1915  MHz  Band.............................................................................................................  50  2.  1990-  1995  MHz  Band.............................................................................................................  55 
 3.  Band  Pairing............................................................................................................................  59  V.  RECORD  OVERVIEW  OF  THE  800  MHZ  PUBLIC  SAFETY  INTERFERENCE 
 PROCEEDING.....................................................................................................................................  61  VI.  DISCUSSION  ......................................................................................................................................  62 
 A.  The  Commissions  Spectrum  Management  and  Legal  Authority..................................................  62  B.  Interference  Abatement..................................................................................................................  88 
 1.  Types  of  Interference...............................................................................................................  89  2.  Entitlement  to  Interference  Protection.....................................................................................  92 
 a.  Introduction.......................................................................................................................  93  b.  Interference  Protection  Standard.......................................................................................  96 
 (i)  Signal  Strength  Threshold  for  Interference  Protection.............................................  105  (ii)  Signal  Measurement  Techniques..............................................................................  108 
 c.  Minimum  Receiver  Performance  Criteria.......................................................................  109  3.  Overall  Approach  to  Interference  Abatement  .......................................................................  115 
 a.  Role  of  Enhanced  Best  Practices  ....................................................................................  115  b.  Interference  Abatement  Rules  and  Procedures  ...............................................................  124 
 (i)  Mutual  Notification  Requirements  Applicable  to  800  MHz  Licensees....................  124  (ii)  Responsibility  for  Mitigation  Pre-  and  Post-  Band  Reconfiguration  .......................  128 
 (iii)  Interference  Resolution  Procedures..........................................................................  132  C.  Band  Reconfiguration  ..................................................................................................................  142 
 1.  Technical  Issues  Addressed  by  Band  Reconfiguration  .........................................................  143  2.  New  800  MHz  Band  Plan......................................................................................................  149 
 a.  Band  Plan  Overview  .......................................................................................................  149  b.  Expansion  Band  ..............................................................................................................  154 
 c.  Guard  Band.....................................................................................................................  157  d.  Relocating  ESMR  Operations  in  800  MHz  Band  ...........................................................  159 
 (i)  Relocation  Options...................................................................................................  162  (ii)  Expanded  ESMR  Spectrum......................................................................................  164 
 e.  Permitting  Additional  Non-  ESMR  Cellular  Architecture  Systems  in  the  800  MHz  Band................................................................................................................................  170 
 3.  Border  Regions......................................................................................................................  175  4.  Cost  Responsibility  ...............................................................................................................  177 
 a.  Relocation  Costs  and  Remuneration  ...............................................................................  179  b.  Continued  Availability  of  Funds.....................................................................................  180 
 5.  Logistics  of  Band  Reconfiguration........................................................................................  188  a.  Transition  Administrator.................................................................................................  190 
 b.  Scheduling  and  Implementation  .....................................................................................  201  c.  Freeze  on  the  Acceptance  of  800  MHz  Applications  .....................................................  204 
 d.  Tolling  of  800  MHz  Site-  Based  Construction  Requirements  .........................................  205 
2
 Federal  Communications  Commission  FCC  04-  168 
 3 
 6.  Disposition  of  Nextels  900  MHz  SMR  and  700  MHz  Guard  Band  Block  B  Spectrum  ......  207  D.  Appropriate  Compensation  for  Band  Reconfiguration  ................................................................  210 
 1.  Public  Interest  Considerations  for  Granting  Spectrum  Rights  to  Nextel...............................  213  2.  Choice  of  1.9  GHz  Replacement  Spectrum...........................................................................  217 
 3.  Assignment  of  Spectrum  Rights  at  1.9  GHz  to  Nextel..........................................................  223  a.  Redesignation  of  the  1910-  1915  MHz  Band  ..................................................................  224 
 b.  Pairing  the  1910-  1915  MHz  and  1990-  1995  MHz  Bands  ..............................................  236  c.  Relocation  and  Cost  Sharing  Obligations  in  the  1910-  1915  MHz  Band  ........................  239 
 d.  Relocation  and  Cost  Sharing  Obligations  in  the  1990-  1995  MHz  Band  ........................  250  (i)  Nextel-  BAS  Plan  ......................................................................................................  251 
 (ii)  MSS-  BAS  Plan.........................................................................................................  264  4.  Method  for  Determining  Equitable  Compensation  ...............................................................  277 
 a.  Valuation  of  1.9  GHz  Spectrum......................................................................................  279  b.  Offsets.............................................................................................................................  298 
 (i)  Relocation  and  Band-  Clearing  Costs  .......................................................................  299  (ii)  800  MHz  Spectrum  Relinquished  to  Public  Safety  and  Other  800  MHz 
 Incumbents  ...............................................................................................................  307  (iii)  700  MHz  Guard  Band  Spectrum  ..............................................................................  324 
 5.  Financial  Aspects  of  Band  Reconfiguration..........................................................................  325  6.  Financial  Reconciliation  Process...........................................................................................  329 
 VII.........................................................  SERVICE  POOL  CONSOLIDATION    THE  PCIA  PETITION  333  VIII.  OPERATIONAL  FLEXIBILITY  IN  THE  900  MHZ  BAND  .....................................................  335 
 IX.  CONCLUSION  ..................................................................................................................................  338  X.  ORDERING  CLAUSES.....................................................................................................................  340 
 XI.  PROCEDURAL  MATTERS..............................................................................................................  365  A.  Regulatory  Flexibility  Act  ...........................................................................................................  365 
 B.  Paperwork  Reduction  Act  ............................................................................................................  366  APPENDIX  A:  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS  ..................................................  168 
 APPENDIX  B:  PAPERWORK  REDUCTION  ANALYSIS....................................................................  181  APPENDIX  C:  FINAL  RULES.................................................................................................................  25 
 APPENDIX  D:  ENHANCED  BEST  PRACTICES.................................................................................  234  APPENDIX  E:  ILLUSTRATIVE  FORM  OF  LETTER  OF  CREDIT  ....................................................  238 
 APPENDIX  F:  NPSPAC  REGIONS  .......................................................................................................  250  APPENDIX  G:  SOUTHEAST  ESMR  BAND  PLAN.............................................................................  252 


 I.  INTRODUCTION 
 1.  The  Homeland  Security  obligations  of  the  Nations  public  safety  agencies  make  it  imperative  that  their  communications  systems  are  robust  and  highly  reliable.  1  Accordingly,  in  this  Report  and  Order, 


 we  adopt  technical  and  procedural  measures  designed  to  address  the  ongoing  and  growing  problem  of  interference  to  public  safety  communications  in  the  800  MHz  band.  2  In  reaching  our  decisions  herein,  we 
 are  fulfilling  the  Commissions  obligation  to  promote  safety  of  life  and  property  through  the  use  of  wire  and  radio  communication.  3  We  also  reiterate  our  continuing  commitment  to  ensuring  that  essential 
 public  health  and  safety  personnel  have  effective  communications  services  available  to  them  in  emergency  situations.  4 


 1  47  U.  S.  C.    337(  f)  defines  "public  safety  services"  as  services: 
 (continued.) 
3
 Federal  Communications  Commission  FCC  04-  168 
 6 
 band  spectrum.  We  believe  that  the  totality  of  these  measures  will  both  eliminate  unacceptable  interference  currently  encountered  by  800  MHz  public  safety  and  CII  systems  12  and  reflect  sound  spectrum 
 management  principles.  Our  plan  incorporates  essential  elements  of  a  proposal  developed  by  Nextel,  the  major  public  safety  organizations,  and  various  private  wireless  organizations  (the  so-  called  Consensus 
 Parties).  13 
 (Continued  from  previous  page)  Band  to  Rectify  Commercial  Mobile  Radio  -  Public  Safety  Interference  and  Allocate  Additional  Spectrum  to  Meet 
 Critical  Public  Safety  Needs,  Nextel  Communications,  Inc,  submitted  by  Robert  S.  Foosaner,  Nextel  Communications,  Inc.,  to  Thomas  J.  Sugrue,  Chief,  Wireless  Telecommunications  Bureau,  FCC  (cover  letter  dated 
 Nov.  12,  2001)  (White  Paper)  at  46.  In  this  regard,  we  observe  that  in  the  White  Paper,  Nextel  cites  a  study  undertaken  by  the  Department  of  Commerce,  National  Telecommunications  and  Information  Administration,  which 
 requested  comment  on  a  broader  definition  of  CII,  including  pipelines  and  railroads.  See  White  Paper  at  n.  60;  Request  for  Comment  on  Energy,  Water  and  Railroad  Service  Providers  Spectrum  Use  Study,  66  Fed  Reg.  18447 
 (2001).  Section  309(  j)(  2)  also  is  broader  than  the  definition  proposed  by  the  Critical  Infrastructure  Communications  Council  (CICC),  which  is  composed  of  the  following  organizations:  The  American  Gas 
 Association,  the  American  Petroleum  Institute,  the  American  Public  Power  Association,  the  American  Water  Works  Association,  the  Association  of  American  Railroads,  the  Edison  Electric  Institute,  the  Interstate  Natural  Gas 
 Association  of  America,  the  National  Association  of  Water  Companies,  the  National  Rural  Electric  Cooperative  Association,  and  the  United  Telecom  Council  (UTC).  See  UTC  Comments  at  n.  2.  We  nonetheless  believe  that 
 this  expanded  definition  is  appropriate  in  this  context  because  it  recognizes  that  the  very  nature  of  the  services  provided  by  the  included  entities  involves  potential  hazard  to  life  and  property  and  that  CII  entities  often  work  hand 
 in  hand  with  public  safety  officials  at  the  scene  of  an  incident.  Indeed,  reliable  CII  radio  communications  have  long  proven  essential  in  speeding  recovery  from  natural  or  man-  made  disasters.  Our  decision  to  define  CII  is 
 confined  to  this  proceeding  and  does  not  represent  a  Commission  decision  that  CII  entities  are  public  safety  entities. 


 12  Although  we  focus  on  the  benefits  to  public  safety  and  CII,  we  do  not  intend  to  imply  that  other  800 
 MHz  radio  systems  will  not  be  beneficiaries  of  the  actions  we  take  today.  Except  where  specifically  stated  otherwise,  the  interference  protections  we  afford  today  inure  to  the  benefit  of  all  800  MHz  non-  cellular  licensees. 


 Non-  cellular  800  MHz  licensees,  as  used  herein,  refers  to  public  safety,  CII,  B/  ILT  and  non-  cellular  SMR  licensees. 


 13  The  proponents  of  this  proposal  have  referred  to  themselves  as  the  Consensus  Parties  and  we  use  that 
 term  for  reference  purposes  in  this  Report  and  Order.  The  Consensus  Parties  members  are  the  Association  of  Public  Safety  Communications  Officials-  International  (APCO),  International  Association  of  Chiefs  of  Police 


 (IACP),  International  Association  of  Fire  Chiefs,  Inc.  (IAFC),  International  Municipal  Signal  Association  (IMSA),  Major  Cities  Chiefs  Association  (MCCA),  Major  County  Sheriffs  Association  (MCSA),  National  Sheriffs 
 Association  (NSA),  Aeronautical  Radio,  Inc.  (ARINC),  American  Mobile  Telecommunications  Association  (AMTA),  American  Petroleum  Institute  (API),  Association  of  American  Railroads  (AAR),  Forest  Industries 
 Telecommunications  (FIT),  Industrial  Telecommunications  Association  (ITA),  PCIA  -  The  Wireless  Infrastructure  Association  (PCIA),  Taxicab,  Limousine  and  Paratransit  Association  (TLPA),  National  Stone,  Sand  and  Gravel 
 Association  (NSSGA),  and  Nextel.  See  Letter,  dated  October  29,  2002,  from  Robert  M.  Gurss,  Esq.,  Counsel  for  APCO  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission.  See  n.  172  infra.  However,  while 
 the  Consensus  Parties  represent  a  broad  coalition  of  commercial  and  public  safety  entities,  we  recognize  that  their  position  does  not  reflect  a  consensus  of  all  of  the  various  parties  to  this  proceeding,  including  some  public  safety 
 entities  that  object  to  the  Consensus  Parties  proposal  or  elements  thereof.  See,  e.  g.,  Letter,  dated  March  24,  2004,  from  Chuck  Canterbury,  National  President,  Fraternal  Order  of  Police  (FOP)  to  George  W.  Bush,  President,  United 
 States  of  America:  Letter,  dated  March  25,  2004  from  Art  Gordon,  National  Executive  Vice  President,  Federal  Law  Enforcement  Officers  Association  to  George  W.  Bush,  President,  United  States  of  America.  With  regard  to  the 
 Fraternal  Order  of  Police  letter,  we  observe  that  on  July  1,  2004,  the  FOP  indicated  that  their  concerns  over  the  Consensus  Plan  have  been  addressed  and  that  they  now  support  the  Consensus  Plan.  See  Letter  dated  July  1,  2004, 
 from  Chuck  Canterbury,  National  President,  Fraternal  Order  of  Police,  to  Michael  K.  Powell,  Chairman,  Federal  Communications  Commission. 
6
 Federal  Communications  Commission  FCC  04-  168 
 7 
 5.  In  recognition  of  the  public  interest  benefit  derived  from  robust  and  reliable  public  safety  communications  coupled  with  the  spectrum  rights  Nextel  will  surrender  as  well  as  financial  commitments 
 that  Nextel  will  incur  in  connection  with  band  reconfiguration,  upon  acceptance  of  Nextel  of  the  conditions  and  obligations  that  we  place  on  it  in  this  R&  O,  we  will  modify  certain  Nextel  licenses  to 
 provide  it  with  rights  to  operate  on  ten  megahertz  of  spectrum  in  the  1.9  GHz  band,  conditioned  on  fulfillment  of  the  obligations  we  place  on  it  in  this  Report  and  Order.  14  As  a  necessary  predicate  for  the 
 license  modifications,  we  also  take  action  by  this  Order  in  ET  Docket  No.  00-  258  and  ET  Docket  No.  95-  18  to  redesignate  the  spectrum  for  the  provision  of  licensed  Fixed  and  Mobile  services  to  be  used  for 
 Advanced  Wireless  Services  (AWS).  15  To  ensure  that  by  these  actions  Nextel,  other  licensees  and  the  public  are  treated  equitably,  and  that  Nextel  does  not  realize  any  windfall  gain,  we  confer  these  1.9  GHz 
 spectrum  rights  on  a  value  for  value  basis.  Under  this  approach,  we  credit  Nextel  for  (1)  the  net  value  of  spectrum  rights  that  Nextel  is  relinquishing  to  public  safety,  CII,  and  other  800  MHz  band  licensees;  (2) 
 the  actual  cost  of  800  MHz  band  reconfiguration  (including  both  Nextels  costs  to  support  relocation  by  other  licensees  and  Nextels  own  relocation  costs);  and  (3)  costs  incurred  by  Nextel  to  clear  the  1.9  GHz 
 band,  less  any  reimbursed  expenses.  If  these  combined  offsets  ultimately  total  less  than  the  value  determined  by  this  Report  and  Order  for  the  1.9  GHz  spectrum  rights,  we  require  Nextel  to  make  a 
 payment  to  the  U.  S.  Treasury  at  the  conclusion  of  the  transition  process  equal  to  the  difference.  16 
 6.  In  complying  with  the  obligations  we  place  upon  it  in  this  Report  and  Order,  we  recognize  that  Nextel  may  have  to  shift  some  of  its  operations  from  the  800  MHz  band  to  900  MHz  band  frequencies 


 in  order  to  provide  the  green  space  necessary  to  effect  reconfiguration  of  the  800  MHz  band.  Moreover,  in  some  areas,  Nextel  may  have  to  share  spectrum  in  the  817-  824  MHz/  862-  869  MHz  segment  of  the 
 reconfigured  band  with  other  ESMR  licensees.  17  To  the  extent  that  such  sharing  may  reduce  the  amount  of  800  MHz  spectrum  available  to  Nextel,  we  believe  we  should  provide  the  regulatory  flexibility  necessary 
 for  Nextel  to  make  up  the  shortfall  by  using  900  MHz  band  channels.  We  therefore  amend  our  rules  to  allow  900  MHz  band  licensees  to  initiate  CMRS  operations  on  their  currently  authorized  spectrum  or  to 
 assign  their  authorizations  to  others  for  CMRS  use.  18 
 7.  The  totality  of  the  actions  we  take  today  are  based  on  unique  and  compelling  public  interest  considerations  in  the  record  before  us  regarding  the  serious  and  continuing  public  safety  interference 


 problems  in  the  800  MHz  band.  These  considerations  require  that  we  take  the  most  effective  actions,  in  the  short-  term  and  long-  term,  to  promote  robust  and  reliable  public  safety  communications  in  the  800  MHz 
 band  to  ensure  the  safety  of  life  and  property.  While  we  are  mindful  of  our  statutory  obligations  under  Section  309(  j)  of  the  Act  regarding  the  use  of  competitive  bidding  procedures  for  the  assignment  of 


 14  We  make  these  modifications  under  the  authority  granted  us  by  Sections  4,  301,  303  and  316  of  the  Act, 
 47  U.  S.  C.    316,  303,  301,  and  154(  i).  We  set  forth  a  detailed  description  of  our  legal  authority  in    62-  87  infra. 
 15  See    223-  276  infra.  AWS  is  the  collective  term  we  use  for  new  and  innovative  fixed  and  mobile 
 terrestrial  wireless  applications  using  bandwidth  that  is  sufficient  for  the  provision  of  a  variety  of  applications,  including  those  using  voice  and  data  (such  as  Internet  browsing,  message  services,  and  full-  motion  video)  content. 


 Although  AWS  is  commonly  associated  with  so-  called  third  generation  (3G)  applications  and  has  been  predicted  to  build  on  the  successes  of  such  current-  generation  commercial  wireless  services  as  cellular  and  Broadband  PCS,  the 
 services  ultimately  provided  by  AWS  licensees  are  only  limited  by  the  fixed  and  mobile  designation  of  the  spectrum  we  allocate  for  AWS  and  the  service  rules  we  ultimately  adopt  for  the  bands. 


 16  See    210-  212  infra. 
 17  See    159-  163  infra. 
 18  See  47  C.  F.  R.    90.621(  f)  in  Appendix  C  infra. 
7
 Federal  Communications  Commission  FCC  04-  168 
 15 
 interference  results  from  the  combination  of  signals  from  multiple  transmitters,  and  potentially  multiple  licensees,  we  place  joint  and  several  responsibility  on  such  CMRS  licensees  to  eliminate  unacceptable 
 interference  using  the  remedies  of  their  choice.  In  not  imposing  new,  across-  the-  board  emission  limitations  that  would  necessitate  highly  expensive  technical  changes  to  most,  if  not  all,  ESMR  and 
 cellular  systems  nationwide,  we  have  heeded  the  filings  of  those  parties  who  have  decried  the  expense  of  such  technical  micromanagement  and  urged  that  the  same  goal  can  be  achieved  otherwise,  for  example,  by 
 the  less  intrusive  means  we  adopt  today.  52 
 C.  800  MHz  Band  Reconfiguration 
 21.  The  800  MHz  band  is  currently  configured  as  follows: 


 Upper  700  MHz  Commercial 


 General  Category  Interleaved  Spectrum  ESMR  (Upper  200) 
 806  809.75  821  816  824 


 Base  Station  Transmit  Frequencies  (in  MHz) 
 851  854.75  866  861  869 


 Mobile  and  Control  Station  Transmit  Frequencies  (in  MHz) 
 NPSPAC  (Public 
 Safety) 


 NPSPAC  -  6  MHz  225  Channels  @  12.5  kHz  spacing 
 5  Channels  @  25  kHz  spacing  5  Mutual  Aid  Channels 


 ESMR/  Upper  200    10  MHz  200  Channels 
 Licensed  by  EA  Non  EA  incumbents  are  currently 
 undergoing  mandatory  relocation 


 General  Category  -7.  5  MHz  150  Channels 
 Licensed  by  EA  Blocks  of  25  channels  (SMR)  Some  Incumbent  Operators  Remain 
 Interleaved  Spectrum  -12.5  MHz  250  Channels 


 80  SMR  Channels  (Licensed  by  EA,  Some  Incumbent  Operators  Remain) 
 70  Public  Safety  Channels  50  Business  Channels 
 50  Industrial  Land  Transportation  Channels 


 Cellular  700  MHz  Public  Safety 
 (Base) 


 700  MHz  Public  Safety 


 (Mobile) 


 764  762  776  792  747  777  794 
 806  824 
 849  851 


 ATG 
 A  C  D  D  C  A  B  BA  A  B  B  800  MHz 


 Band 
 Upper  700  MHz  Commercial   


   700  MHz  Commercial  and  700  MHz  Guard 
 Band  do  not  have  specified  Base  and  Mobile  channels 


 =  700  MHz  Guard  Band    894 


 Mobile 
 Base 
 Upper  700  MHz  Commercial   


 869  851 


 22.  Our  plan  for  reconfiguration  of  the  800  MHz  band  is  designed  to  spectrally  segregate  public  safety  systems  from  ESMR  and  cellular  telephone  systems.  In  reaching  this  spectrum  management 
 decision,  we  are  guided  by  the  principle  that  we  can  minimize  unacceptable  interference  in  the  800  MHz  band  by  placing  similar  system  architectures  in  like  spectrum  and  isolating  dissimilar  architectures  from 
 one  another.  53  Under  the  new  band  plan  adopted  in  this  Report  and  Order,  the  800  MHz  band  will  be  configured  as  follows: 


 52  See  Public  Safety  Wireless  Network  Comments  at  18.  See  also  Reply  Comments  of  Rural 
 Telecommunications  Group  to  Supplemental  Comments  of  the  Consensus  Parties. 
 53  See  FCC  Staff  Report,  Spectrum  Policy  Task  Force  Report  in  ET  Docket  No.  02-  135,  4,  22  (released 
 Nov.  22,  2002). 
15
 Federal  Communications  Commission  FCC  04-  168 
 18 
 recognize  that  the  band  plan  we  adopt  is  in  some  respects  inconsistent  with  current  international  agreements.  As  a  result,  implementing  the  band  plan  in  areas  of  the  United  States  bordering  Mexico  and 
 Canada  will  require  modifications  to  international  agreements  for  use  of  the  800  MHz  band  in  the  border  areas.  Since  we  value  highly  our  agreements  with  these  countries  we  intend  to  promptly  pursue  those 
 modifications  during  our  bilateral  discussions  with  those  countries  relevant  regulatory  bodies.  62  During  the  pendency  of  such  modifications,  all  800  MHz  band  operations  (both  cellular  and  non-  cellular  alike) 
 must  continue  to  be  consistent  with  current  international  agreements.  Consequently,  if  a  region  containing  a  border  area  is  reconfigured,  all  800  MHz  band  operations  within  the  border  area  must  conform  to  all 
 international  agreements  unless  and  until  such  international  agreements  are  amended  to  reflect  a  reconfigured  800  MHz  band.  We  envision  and  intend  that  interference-  free  cross-  border  mutual-  aid 
 capability  remain  paramount  during  this  interim  period  preceding  modification  of  the  applicable  international  agreements. 


 D.  Band  Reconfiguration  Process 
 26.  We  recognize  that  our  decision  to  reconfigure  the  800  MHz  band  raises  significant  transition  issues,  particularly  with  respect  to  the  relocation  of  public  safety  and  other  non-  cellular  licensees  from  old 


 to  new  frequency  assignments.  We  are  sensitive  to  the  concerns  raised  about  service  and  operational  disruption  and  are  committed  to  ensuring  that  the  band  reconfiguration  process  does  not  result  in 
 degradation  of  existing  service  or  an  adverse  effect  on  public  safety  communications  and  operations.  We  therefore  have  adopted  rules  that  ensure  both  continuity  of  service  and  that  relocating  licensees  receive 
 comparable  facilities  on  their  new  frequency  assignments,  whether  this  requires  retuning  existing  equipment  or  providing  replacement  equipment.  63 


 27.  In  an  effort  to  further  ensure  a  smooth  transition  to  the  new  800  MHz  band  plan,  the  relocation  process  will  be  managed  by  an  independent  Transition  Administrator.  64  A  committee  of  major  800  MHz 
 band  stakeholders  will  select  the  Transition  Administrator  who  will  perform  a  variety  of  administrative  functions  and  mediate,  or  refer  to  mediation,  any  disputes  that  may  arise  in  connection  with  band 
 reconfiguration.  Should  any  such  disputes  not  be  resolved  by  mediation,  the  Transition  Administrator  will  compile  a  record  and  transmit  it  to  the  Commission.  The  Commission  then  will  review  the  disputed  matter 
 de  novo.  65 
 28.  We  are  committed  to  having  band  reconfiguration  completed  through  a  phased  transition  process  within  thirty-  six  months  of  release  of  a  Public  Notice  announcing  the  start  date  of  reconfiguration 


 (Continued  from  previous  page)  reconfiguration).  We  note,  also,  that,  later  in  this  proceeding,  the  proponents  of  the  Balanced  Approach  said  that 
 certain  of  their  members  were  committed  to  pay  the  cost  of  implementing  Best  Practices  applied  on  a  case-  by-  case  basis  when  their  facilities  were  involved.  We  commend  that  commitment,  which  is  consistent  with  the  interference 
 abatement  responsibility  policy  we  adopt  herein.  See    128-  131  infra. 
 62  Commission  staff  meet  periodically,  and  whenever  needed,  with  their  regulatory  counterparts  from 
 Mexico  and  Canada  to  discuss  cross  border  issues  and,  when  duly  authorized,  to  derive  recommended  changes  to  existing  international  agreements.  When  formal  amendments  to  agreements  are  needed,  they  are  made  through  a 


 process  that  requires  the  sanction  of  the  government  entity  officially  designated  with  the  responsibility  for  international  treaty  consultations,  which  in  the  case  of  the  United  States  is  the  Department  of  State. 


 63  See    201  infra. 
 64  See    190-  200  infra. 
 65  Such  de  novo  Commission  review  is  anticipated  only  after  all  other  avenues  have  been  exhausted,  e.  g., 
 mediation,  arbitration  or  other  alternative  dispute  resolution  techniques  based  on  the  good  faith  effort  of  the  parties. 
18
 Federal  Communications  Commission  FCC  04-  168 
 19 
 in  the  first  NPSPAC  region.  To  ensure  timely  completion,  we  require  Nextel  to  meet  both  an  interim  benchmark  and  a  final  benchmark.  As  an  interim  benchmark,  within  eighteen  months  of  release  of  a 
 Public  Notice  announcing  the  start  date  of  reconfiguration  in  the  first  NPSPAC  region  Nextel  must  complete,  and  the  Transition  Administrator  must  certify  that  Nextel  has  completed,  the  retuning  of 
 Channels  1-  120  for  twenty  NPSPAC  Regions.  If  Nextel  fails  to  meet  this  interim  benchmark,  for  reasons  that  Nextel,  with  the  exercise  of  due  diligence,  could  reasonably  have  avoided,  the  Commission  may 
 consider  and  exercise  any  appropriate  enforcement  action  within  its  authority,  including  assessment  of  monetary  forfeitures  or,  if  warranted,  license  revocation.  66  At  thirty-  six  months,  Nextel  must  complete, 
 and  the  Transition  Administrator  must  certify,  all  relocation  of  800  MHz  incumbents  required  by  this  Report  and  Order.  If  Nextel  fails  to  meet  this  benchmark,  for  reasons  that  Nextel  could  reasonably  have 
 avoided,  the  Commission  will  determine  whether  forfeitures  should  be  imposed  and/  or  whether  Nextel  licenses,  including,  but  not  limited  to,  its  1.9  GHz  licenses,  should  be  revoked. 


 E.  Guarantee  of  Sufficient  Funds  for  Band  Reconfiguration 
 29.  Nextel  has  committed  to  pay  up  to  $850  million  for  retuning  and  replacement  expenses  associated  with  its  own  relocation  and  the  related  relocations  discussed  in  this  Report  and  Order,  an 


 amount  it  claims  is  sufficient  to  cover  all  such  costs.  We  do  not  believe,  however,  that  Nextel  should  be  able  to  cap  its  obligation  to  pay  relocation  costs,  because  doing  so  could  leave  public  safety  and  other 
 relocating  entities  without  the  means  to  complete  the  relocation  process  in  the  event  that  Nextels  estimates  prove  low  and  relocation  costs  exceeded  any  such  cap.  Therefore,  we  decline  to  cap  Nextels 
 obligations  at  $850  million  or  any  other  amount  but  instead  require  Nextel  to  pay  all  costs  of  band  reconfiguration,  as  defined  in  this  Report  and  Order. 


 30.  In  addition,  to  protect  against  possible  changes  to  Nextels  financial  condition,  we  require  Nextel  to  secure  its  commitment  by  means  of  an  irrevocable  letter  of  credit  in  the  amount  of  $2.5  billion, 
 within  sixty  days  of  the  date  this  Report  and  Order  is  published  in  the  Federal  Register.  67  We  believe  this  letter  of  credit  strikes  the  appropriate  balance  between  Nextels  estimate  that  band  reconfiguration  would 
 cost  $850  million  and  others  contention  that  Nextels  estimates  were  unrealistically  low.  We  further  note  that  Nextel  may  be  required  to  obtain  additional  letters  of  credit  if  ongoing  experience  with  band 
 reconfiguration  show  the  initial  letter  of  credit  to  be  inadequate. 
 F.  Equitable  Compensation  for  Band  Reconfiguration 
 31.  Nextel  proposes  that,  as  compensation  for  its  relinquishment  of  some  of  its  spectrum  rights  in  the  700,  800  and  900  MHz  bands  and  its  commitment  to  pay  800  MHz  band  incumbent  relocation  costs,  it 


 should  receive  a  nationwide  license  for  ten  megahertz  of  spectrum  in  the  1.9  GHz  band.  68  We  conclude  that  it  is  in  the  public  interest  to  compensate  Nextel  for  the  surrendered  spectrum  rights  and  costs  it  incurs 


 66  We  note  that  the  Commission  has  issued  Notices  of  Apparent  Liability  for  Forfeiture  assessing 
 substantial  penalties  on  carriers  that  have  failed  to  comply  with  Commission  rules  intended  to  enhance  the  safety  of  life  and  property.  See  In  re  T-  Mobile  USA,  Inc.,  Notice  of  Apparent  Liability  for  a  Forfeiture,  18  F.  C.  C.  R.  3501 


 (EB  2003);  see  also  In  re  AT&  T  Wireless  Services,  Inc.,  Notice  of  Apparent  Liability  for  a  Forfeiture,  17  F.  C.  C.  R.  9903  (EB  2002). 


 67  See    182  infra. 
 68  This  modification  of  Nextels  original  White  Paper  position  was  first  put  forth  in  December  2001  in  an 
 ex  parte  filing  by  the  Consensus  Parties.  See  n.  172  infra.  We  note  that  other  parties  contend  that  the  value  of  the  spectrum  rights  Nextel  seeks  substantially  exceeds  the  value  of  spectrum  rights  it  has  offered  to  give  up,  and 


 therefore  would  constitute  an  unwarranted  windfall  to  Nextel.  See  n.  661  infra. 
19
 Federal  Communications  Commission  FCC  04-  168 
 22 
 IV.  REGULATORY  BACKGROUND 
 A.  800  MHz  Band 
 36.  In  the  mid-  1970s,  the  Commission  reallocated  spectrum  in  the  806-  947  MHz  band  for  land  mobile  operations  and  designated  portions  of  this  spectrum  for  high  capacity  common  carrier  mobile 


 communications  (i.  e.  cellular  systems)  and  PLMR;  and  reserve  spectrum  for  future  land  mobile  communications  needs.  75  The  Commission  allotted  one-  third  of  the  spectrum  for  conventional  operation 
 and  the  remaining  two-  thirds  for  trunked  operation.  76  By  the  close  of  the  1970s,  the  Commission  had  released  a  portion  of  reserve  800  MHz  spectrum  to  alleviate  spectrum  shortages  confronting  users  of 
 conventional  channels.  77  In  the  early  1980s,  the  Commission  adopted  rules  for  the  release  of  the  remaining  reserve  spectrum  according  to  radio  service  categories  and  established  the  800  MHz  Public 
 Safety,  B/  ILT,  and  SMR  service  categories.  78  The  specific  channel  pairs  allotted  to  the  various  services  differ  along  the  U.  S.  border  areas  with  Mexico  and  Canada.  79  The  Commission  did  not  make  contiguous 
 spectrum  available  to  each  radio  service  because  technology  limitations  at  that  time  did  not  readily  accommodate  the  use  of  contiguous  spectrum  at  a  single  base  station  site.  80  Instead,  the  channel  pairs 
 made  available  to  each  radio  service  were  interleaved  between  channels  allotted  to  the  other  radio  services.  81  The  Commission  provided  for  inter-  category  sharing  (i.  e.,  sharing  between  radio  services)  to 


 75  See  Inquiry  Relative  to  the  Future  Use  of  the  Frequency  Band  806-  960  MHz  and  Amendment  of  Parts 
 2,  18,  21,  73,  74,  89,  91,  and  93  of  the  Rules  Relative  to  Operations  in  the  Land  Mobile  Service  Between  806  and  960  MHz,  Docket  No.  18262,  First  Report  and  Order  and  Second  Notice  of  Inquiry,  19  Rad.  Reg.  2d  (P&  F)  1663 


 (1970).  See  also  Inquiry  Relative  to  the  Future  Use  of  the  Frequency  Band  806-  960  MHz  and  Amendment  of  Parts  2,  18,  21,  73,  74,  89,  91,  and  93  of  the  Rules  Relative  to  Operations  in  the  Land  Mobile  Service  Between  806  and 
 960  MHz,  Docket  No.  18262,  Second  Report  and  Order,  46  FCC  2d  752  (1974),  reconsidered,  Memorandum  Opinion  and  Order,  51  FCC  2d  945  (1975). 


 76  Id. 
 77  See  Inquiry  Relative  to  the  Future  Use  of  the  Frequency  Band  806-  960  MHz  and  Amendment  of  Parts 
 2,  18,  21,  73,  74,  89,  91,  and  93  of  the  Rules  Relative  to  Operations  in  the  Land  Mobile  Service  Between  806  and  960  MHz,  Docket  No.  18262,  Order  (on  further  reconsideration),  FCC  78-  854  (1978);  aff'd  sub  nom.  NARUC  v. 


 FCC,  525  F.  2d  630  (D.  C.  Cir.  1976),  cert.  denied  425  U.  S.  992  (1976). 
 78  The  initial  allotment  to  public  safety  was  fifty  channels.  See  Amendment  of  Part  90  of  The 
 Commission's  Rules  to  Designate  Frequencies  in  the  806-  821  and  851-  866  MHz  Bands  for  Slow-  Growth  Land  Mobile  Radio  Systems  of  Utilities  and  Public  Safety  Agencies,  PR  Docket  No.  79-  191  Report  and  Order,  48  Rad. 


 Reg.  2d  (P&  F)  837,  FCC  80-  663  (1980).  This  was  later  increased  to  seventy  channels.  See  Amendment  of  Part  90  of  the  Commission's  Rules  to  Release  Spectrum  in  the  806-  21/  851-  866  MHz  Bands  and  to  Adopt  Rules  and 
 Regulations  Which  Govern  Their  Use;  Amendment  of  Part  90  of  the  Commission's  Rules  to  Facilitate  Authorization  of  Wide-  Area  Mobile  Radio  Communications  Systems;  An  Inquiry  Concerning  the  Multiple 
 Licensing  of  800  MHz  Radio  Systems  (community  repeaters);  Amendment  of  Section  90.385(  c)  of  the  Commission's  Rules  to  Allow  Transmission  of  Non-  Voice  Signals  at  800  MHz,  PR  Docket  No.  79-  191,  PR  Docket 
 No.  79-  334,  PR  Docket  No.  79-  107,  PR  Docket  No.  81-  703,  Second  Report  and  Order,  90  FCC  2d  1281,  52  Rad.  Reg.  2d  (P&  F)  11,  FCC  82-  338  (1982)  (Pool  Order).  Subsequently,  the  Commission  added  225  25  kHz  channels 
 spaced  12.5  kHz  apart  and  five  25  kHz  channels  spaced  25  kHz  apart  at  866-  869  MHz  the  so-  called  "NPSPAC  Channels.  See    37  infra. 


 79  See,  e.  g.,  47  C.  F.  R.    90.617,  90.619. 
 80  See  NPRM,  17  FCC  Rcd  at  4877. 
 81  Id. 
22
 Federal  Communications  Commission  FCC  04-  168 
 23 
 permit  licensees  access  to  spectrum  in  instances  in  which  the  channels  assigned  to  a  licensees  particular  radio  service  had  been  exhausted.  82  At  the  time,  the  Commission  contemplated  that  the  radio  service 
 categories  could  be  phased  out  in  three  years.  83  However,  the  categories  proved  to  have  continuing  utility  and  remain  in  use  today.  In  1986,  based  on  experience  with  the  radio  service  category  structure  in  the  800 
 MHz  band,  the  Commission  adopted  a  similar  structure  for  the  900  MHz  band  land  mobile  spectrum.  84 
 37.  In  1986,  the  Commission  designated  six  megahertz  of  spectrum  at  821-  824  MHz/  866-  869  MHz  for  public  safety  use  and  established  the  NPSPAC  to  advise  the  Commission  on  rules  for  this 


 spectrum.  85  After  the  NPSPAC  filed  its  Initial  Report,  the  Commission  issued  rules  for  the  new  public  safety  spectrum,  which  became  known  as  the  NPSPAC  Band,  including  five  channels  devoted  to  mutual 
 aid  (interoperability)  use.  86  Thereafter,  many  jurisdictions  began  planning  and  implementing  wide-  area  (often  state-  wide)  800  MHz  band  public  safety  systems  that  utilize  NPSPAC  and  Public  Safety  Category 
 channels.  87 
 38.  In  1990,  the  Commission  established  the  General  Category  Radio  Service  at  806-  809.75  MHz/  851-  854.75  MHz  for  either  conventional  or  trunked  operation  by  any  eligible  800  MHz  licensee.  88  A 


 year  later,  the  Commission  waived  its  rule  requiring  SMR  licensees  to  complete  system  construction  in  one 
 82  Id. 
 83  See  Pool  Order,  90  FCC  2d  1303-  1304    66.  In  1995,  the  Commission  imposed  a  freeze  on 
 intercategory  sharing,  because,  after  the  Commission  elected  to  auction  SMR  licenses  on  a  wide-  area  geographical  basis,  SMR  applicants  filed  a  disproportionate  number  of  requests  for  intercategory  sharing.  See  Amendment  of 


 Part  90  Of  The  Commission's  Rules  To  Facilitate  Future  Development  Of  SMR  Systems  in  the  800  MHz  Frequency  Band,  PR  Docket  No.  93-  144,  Second  Report  and  Order,  12  FCC  Rcd  19079  (1997).  This  resulted  in  a 
 shortage  of  channels  for  applicants  in  the  other  pools.  See  in  the  Matter  Of  Inter-  Category  Sharing  Of  Private  Mobile  Radio  Frequencies  in  the  806-  821/  851-  866  MHz  Bands,  Order,  10  FCC  Rcd  7350  (WTB  1995) 
 (Intercategory  Freeze  Order).  To  date,  the  freeze  on  intercategory  sharing  in  the  800  MHz  band  remains  in  effect. 


 84  See  Amendment  of  Parts  2  and  22  of  the  Commission's  Rules  Relative  to  Cellular  Communications 
 Systems  Amendment  of  Parts  2,  15,  and  90  of  the  Commission's  Rules  and  Regulations  to  Allocate  Frequencies  in  the  900  MHz  Reserve  Band  for  Private  Land  Mobile  Use  Amendment  of  Parts  2,  22  and  25  of  the  Commission's 


 Rules  to  Allocate  Spectrum  for,  and  to  Establish  Other  Rules  and  Policies  Pertaining  to  the  Use  of  Radio  Frequencies  in  a  Land  Mobile  Satellite  Service  for  the  Provision  of  Various  Common  Carrier  Services,  GEN 
 Docket  No.  84-  1231  RM-  4812,  GEN  Docket  No.  84-  1233  RM-  4829,  GEN  Docket  No.  84-  1234,  Report  and  Order,  2  FCC  Rcd  at  1825    46  (1986). 


 85  Id.  at  1837. 
 86  See  Development  and  Implementation  of  a  Public  Safety  National  Plan  and  Amendment  of  Part  90  to 
 Establish  Service  Rules  and  Technical  Standards  for  Use  of  the  821-  824/  866-  869  MHz  Bands  by  the  Public  Safety  Services,  GEN  Docket  No.  87-  112,  Report  and  Order,  3  FCC  Rcd  905  (1987). 


 87  See,  e.  g.,  State  of  Ohio,  Memorandum  Opinion  and  Order,  17  FCC  Rcd  439  (WTB,  PS&  PWD  2002); 
 State  of  Florida,  Memorandum  Opinion  and  Order,  16  FCC  Rcd  2174  (WTB  2001);  Commonwealth  of  Pennsylvania  and  GPU  Energy,  Order,  14  FCC  Rcd  14029  (WTB,  PS&  PWD  1999);  New  Jersey  Transit  Authority, 


 Order,  14  FCC  Rcd  4334  (WTB  1999);  State  of  South  Carolina  and  Scana  Communications,  Inc.,  Order,  13  FCC  Rcd  8787  (WTB  1997);  State  of  Florida,  Order,  12  FCC  Rcd  11567  (WTB  1997);  Seminole  County,  Florida, 
 Order,  11  FCC  Rcd  4105  (WTB  1996). 
 88  See  Trunking  in  the  Private  Land  Mobile  Radio  Services  for  More  Effective  and  Efficient  Use  of  the 
 Spectrum,  PR  Docket  No.  87-  213,  Report  and  Order,  5  FCC  Rcd  4016  (1990). 
23
 Federal  Communications  Commission  FCC  04-  168 
 24 
 year,  to  accommodate  SMR  licensees  interest  in  accumulating  large  numbers  of  800  MHz  channels  and  using  advanced  technology  to  increase  spectrum  reuse  by  employing  cellular-  type  architecture  to 
 efficiently  serve  wide  areas  and  large  numbers  of  subscribers.  89  Thereby,  it  afforded  Fleet  Call,  the  predecessor  of  Nextel,  sufficient  time  to  develop  and  implement  an  SMR  system  offering  wide-  area  digital 
 voice  and  data  service.  90 
 39.  In  1994,  the  Commission  proposed  a  new  licensing  framework  for  SMR  systems  in  the  800  MHz  band.  91  After  release  of  the  Further  Notice,  there  was  a  significant  increase  in  the  number  of  requests 


 for  General  Category  channels  made  by  SMR  applicants  and  licensees.  92  On  October  4,  1995,  the  Wireless  Telecommunications  Bureau  imposed  a  freeze  on  acceptance  of  new  applications  for  the  General  Category 
 channels  to  ensure  that  resolution  of  the  spectrum  allocation  issues  raised  in  the  Further  Notice  would  not  be  compromised.  93  In  December  1995,  the  Commission  established  geographic  area  licensing  and  new 
 service  rules  for  the  upper  200  800  MHz  SMR  channel  pairs  at  816-  821  MHz/  861-  866  MHz  where  such  wide-  area  digital  voice  and  data  services  eventually  proliferated.  94  The  Commission  subsequently 
 redesignated  the  General  Category  channels  exclusively  to  the  800  MHz  SMR  service,  whereby  mutually  exclusive  initial  applications  would  be  subject  to  competitive  bidding,  and  excluded  PLMR  licensees  from 
 eligibility  for  this  spectrum.  95  On  reconsideration,  however,  the  Commission  reversed  its  decision  concerning  eligibility  and  reinstated  the  eligibility  of  PLMR  applicants  for  General  Category  channels.  96 
 The  Commission  also  partially  lifted  the  freeze  on  General  Category  channels  to  permit  Economic  Area  (EA)  applicants  97  to  relocate  incumbents  from  the  upper  ten  megahertz  block  of  800  MHz  spectrum  to  the 


 89  See  NPRM,  17  FCC  Rcd  at  4878    9. 
 90  See,  e.  g.,  Fleet  Call,  Inc,  Memorandum  Opinion  and  Order,  6  FCC  Rcd  1533,  recon.  dismissed,  6  FCC 
 Rcd  6989  (1991). 
 91  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in 
 the  800  MHz  Frequency  Band,  Further  Notice  of  Proposed  Rule  Making,  PR  Docket  No.  93-  144,  PP  Docket  No.  93-  253,  10  FCC  Rcd  7970  (1994)  (Further  Notice). 


 92  The  General  Category  is  comprised  of  150  contiguous  twenty-  five  megahertz  channels  in  the  800  MHz 
 band.  See  47  C.  F.  R.    90.615. 
 93  Licensing  of  General  Category  Frequencies  in  the  806-  809.750/  851-  854.750  MHz  Bands,  Order,  10 
 FCC  Rcd  13190  (WTB  1995). 
 94  See  Amendment  of  Part  90  of  the  Commission's  Rules  to  Facilitate  Future  Development  of  SMR 
 Systems  in  the  800  MHz  Frequency  Band,  PR  Docket  No.  93-  144,  First  Report  and  Order,  Eighth  Report  and  Order,  and  Second  Further  Notice  of  Proposed  Rule  Making,  11  FCC  Rcd  1463  (1995)  (800  MHz  Report  and 


 Order).  Geographic  licensing  was  also  adopted  for  the  General  Category  SMR  channels. 
 95  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in 
 the  800  MHz  Frequency  Band,  First  Report  and  Order,  Eighth  Report  and  Order  and  Second  Further  Notice  of  Proposed  Rulemaking,  PR  Docket  No.  93-  144,  GN  Docket  No.  93-  252,  PP  Docket  No.  93-  253,  11  FCC  Rcd  1463 


 (1995)  (800  MHz  SMR  Report  and  Order);  Memorandum  Opinion  and  Order  on  Reconsideration,  PR  Docket  No.  93-  144,  GN  Docket  No.  93-  252,  PP  Docket  No.  93-  253,  12  FCC  Rcd  9972  (1997)  (800  MHz  SMR  Memorandum 
 Opinion  and  Order). 
 96  800  MHz  SMR  Memorandum  Opinion  and  Order,  12  FCC  Rcd  at  9975    4. 


 97  In  the  800  MHz  SMR  Report  and  Order,  the  Commission  adopted  geographic  licensing  based  on  EAs 
 for  the  upper  ten  megahertz  of  the  800  MHz  SMR  service.  See  800  MHz  SMR  Report  and  Order,  11  FCC  Rcd  at  1484    24-  25.  The  U.  S.  Department  of  Commerce  Bureau  of  Economic  Analysis  has  established  172  EAs  which 


 (continued.) 
24
 Federal  Communications  Commission  FCC  04-  168 
 25 
 General  Category  channels.  98  In  all  other  respects,  the  Commission  maintained  the  freeze  so  as  not  to  frustrate  its  efforts  regarding  future  licensing  of  General  Category  channels.  99 
 B.  700  MHz  Band 
 40.  Prior  to  1997,  the  700  MHz  band  (TV  Channels  60-  69)  was  exclusively  used  by  broadcasters.  In  the  Balanced  Budget  Act  of  1997,  Congress  directed  the  Commission  to  reallocate  twenty-  four 


 megahertz  of  this  spectrum  for  public  safety  use  and  to  auction  thirty-  six  megahertz  of  this  spectrum  for  commercial  use.  100  Incumbent  analog  television  stations  on  the  700  MHz  band  frequencies  are  allowed  to 
 remain  in  operation  until  December  31,  2006,  and,  under  certain  circumstances,  well  beyond  that  date.  101  These  stations  render  the  700  MHz  band  unusable  for  public  safety  systems  in  the  majority  of  metropolitan 
 areas  at  this  time. 
 41.  In  January  2000,  the  Commission  established  two  paired  700  MHz  guard  bands  (the  700  MHz  Guard  Bands),  one  of  four  megahertz  and  one  of  two  megahertz,  in  the  commercial  use  spectrum 


 immediately  adjacent  to  the  public  safety  spectrum  to  insulate  public  safety  operations  from  unacceptable  interference  from  700  MHz  commercial  services.  102  In  the  Upper  700  MHz  Second  Report  and  Order,  the 
 Commission  adopted  technical,  operational,  and  licensing  requirements  for  the  700  MHz  Guard  Bands,  103  including  a  ban  on  cellular  operations.  104  The  Commissions  restriction  on  cellular  operations  stems  from 
 its  experience  in  the  800  MHz  land  mobile  band  in  which  the  incompatibility  of  high-  site  operations  and  cellular  operations  led  to  the  instant  rule  making.  105  The  Commission  determined  that  the  700  MHz  Guard 
 Bands  would  be  licensed  by  competitive  bidding  to  a  new  class  of  commercial  user  called  a  Guard  Band 


 (Continued  from  previous  page)  cover  the  continental  United  States.  See  Final  Redefinition  of  the  BEA  Economic  Areas,  60  Fed.  Reg.  31114  (Mar. 
 10,  1995). 
 98  See  800  MHz  SMR  Report  and  Order,  11  FCC  Rcd  at  1508    74-  75. 


 99  Id.  at  1509    76. 
 100  See  Section  337(  a)  of  the  Act,  47  U.  S.  C.    337(  a),  as  amended  by    3004  of  the  Balanced  Budget  Act 
 of  1997,  Pub.  L.  No.  105-  33,  111  Stat.  251  (1997).  The  Commissions  Wireless  Telecommunications  Bureau  subsequently  set  a  June  19,  2002,  date  for  this  auction.  See  Auction  of  Licenses  in  the  747-  762  and  777-  792  MHz 


 Bands  (Auction  Nos.  31  and  44)  scheduled  for  June  19,  2002,  DA  01-  2394,  Public  Notice,  16  FCC  Rcd  18510  (2001).  The  spectrum  assigned  for  public  safety  use  corresponds  to  Television  Channels  63-  64  and  68-  69. 


 101  See  47  U.  S.  C.    309(  j)(  14)  and  337(  e).  See  also  Advanced  Television  Systems  and  Their  Impact 
 Upon  Existing  Television  Broadcast  Service,  MM  Docket  No.  87-  268,  Reconsideration  of  Fifth  Report  and  Order,  13  FCC  Rcd  6860,  6887  (1998). 


 102  The  Guard  Bands  consist  of  paired  one  megahertz  sub-  bands  at  746-  747  MHz  and  776-  777  MHz  and 
 two  paired  two  megahertz  sub-  bands  at  762-  764  MHz  and  792-  794  MHz.  See  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands,  and  Revisions  to  Part  27  of  the  Commission's  Rules,  WT  Docket  No.  99-  168,  First  Report 


 and  Order,  15  FCC  Rcd  476,  489-  91    30-  34  (2000)  (Upper  700  MHz  First  Report  and  Order). 
 103  See  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands,  and  Revisions  to  Part  27  of  the 
 Commission's  Rules,  WT  Docket  No.  99-  168,  Second  Report  and  Order,  15  FCC  Rcd  5299  (2000)  (Upper  700  MHz  Second  Report  and  Order). 


 104  See  47  C.  F.  R.    27.2(  b);  27.601(  a). 
 105  See  Upper  700  MHz  Second  Report  and  Order,  15  FCC  Rcd  5299. 
25
 Federal  Communications  Commission  FCC  04-  168 
 26 
 Manager  who  would  lease  the  spectrum  for  value  to  third  parties  on  a  for-  profit  basis.  106  The  Commission  believed  this  process  would  allow  third  parties  to  more  readily  acquire  spectrum  for  varied  uses,  enable 
 these  parties  to  take  advantage  of  the  efficiencies  of  site-  by-  site  licensing,  and  streamline  the  Commissions  spectrum  management  responsibilities.  107  In  September  2000,  the  Commission  completed 
 the  auction  of  the  700  MHz  Guard  Band  spectrum.  108  However,  in  the  Auction  Reform  Act  of  2002,  Congress  directed  the  Commission  to  postpone  auctioning  the  remaining  thirty  megahertz  of  the  upper  700 
 MHz  spectrum  (747-  762  MHz/  777-  792  MHz)  until  resolution  of  the  800  MHz  public  safety  interference  issues  that  are  the  subject  of  the  instant  rule  making  proceeding.  109 


 C.  900  MHz  Band 
 42.  In  1986,  based  on  experience  with  the  pool  structure  in  the  800  MHz  band,  the  Commission  adopted  the  same  pool  structure  for  the  900  MHz  band  land  mobile  spectrum  and  established  the  SMR, 


 B/  ILT  Pools.  110  Given  that  success  of  inter-  category  sharing  in  the  800  MHz  band,  the  Commission  concluded  that  inter-  category  sharing  should  be  implemented  in  the  900  MHz  pool  channels.  111 


 43.  The  900  MHz  SMR  service  112  was  established  in  order  to  alleviate  congestion  in  the  800  MHz  SMR  band.  113  To  expedite  service  in  major  markets  where  demand  for  SMR  service  was  greatest,  the 
 106  Upper  700  MHz  Second  Report  and  Order,  15  FCC  Rcd  at  5311-  13    26-  28.  The  Commission 
 determined  that  this  licensing  scheme  was  consistent  with  the  provisions  of  47  U.  S.  C.    337(  a)(  2)  requiring  that  this  spectrum  be  allotted  for  commercial  use.  Upper  700  MHz  Second  Report  and  Order,  15  FCC  Rcd  at  5316    36; 


 47  U.  S.  C.    337(  a)(  2). 
 107  Upper  700  MHz  Second  Report  and  Order,  15  FCC  Rcd  at  5312-  13    27-  28. 


 108  See  700  MHz  Guard  Band  Auction  Closes;  Winning  Bidder  Announced,  Public  Notice,  15  FCC  Rcd 
 18026  (WTB  2000)  (Auction  No.  33). 
 109  The  Auction  Reform  Act  of  2002,  Pub.  L.  No.  107-  195,  116  Stat.  715,    2(  4)  (2002).  Pub.  L.  107-  195 
   2(  4)  (Auction  Reform  Act  of  2002)  provided  that:  The  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.  Previously,  Section  309(  j)(  14)  of  the  Communications  Act  required  the  Commission  to  assign  spectrum  recovered  from  broadcast  television  using  competitive  bidding  and 
 envisioned  that  the  Commission  would  conduct  an  auction  of  this  spectrum  prior  to  September  30,  2002.  See  47  U.  S.  C.    309(  j)(  14). 


 110  See  Amendment  of  Parts  2  and  22  of  the  Commission's  Rules  Relative  to  Cellular  Communications 
 Systems  Amendment  of  Parts  2,  15,  and  90  of  the  Commission's  Rules  and  Regulations  to  Allocate  Frequencies  in  the  900  MHz  Reserve  Band  for  Private  Land  Mobile  Use  Amendment  of  Parts  2,  22  and  25  of  the  Commission's 


 Rules  to  Allocate  Spectrum  for,  and  to  Establish  Other  Rules  and  Policies  Pertaining  to  the  Use  of  Radio  Frequencies  in  a  Land  Mobile  Satellite  Service  for  the  Provision  of  Various  Common  Carrier  Services,  GEN 
 Docket  No.  84-  1231  RM-  4812,  GEN  Docket  No.  84-  1233  RM-  4829,  GEN  Docket  No.  84-  1234,  Report  and  Order,  2  FCC  Rcd  1825    46  (1986).  We  observe  that  the  Commission  suggested  that  the  pool  framework  would 
 only  be  for  a  limited  time  period.  Id. 
 111  Id.  at    52. 


 112  The  900  MHz  SMR  band  refers  to  spectrum  allocated  in  the  896-  901  and  935-  940  MHz  bands.  See 
 47  C.  F.  R.    90.603. 
 113  Id.  at    46. 
26
 Federal  Communications  Commission  FCC  04-  168 
 27 
 Commission  elected  to  use  a  two-  phase  licensing  process.  In  Phase  I,  licenses  were  assigned  in  forty  "Designated  Filing  Areas"  (DFAs)  comprised  of  the  top  fifty  markets.  Following  Phase  I,  the  Commission 
 envisioned  licensing  facilities  in  areas  outside  these  markets  in  Phase  II.  In  the  meantime,  however,  licensing  outside  the  DFAs  was  frozen  after  1986,  when  the  Commission  opened  its  filing  window  for  the 
 DFAs.  114 
 44.  In  1993,  the  Commission  adopted  a  First  Report  &  Order  and  Further  Notice  of  Proposed  Rulemaking  in  PR  Docket  89-  553,  modifying  its  Phase  II  proposal  and  seeking  comment  on  whether  to 


 license  the  900  MHz  SMR  band  to  a  combination  of  nationwide,  regional,  and  local  systems.  115  Shortly  after  the  First  Report  &  Order/  Further  Notice,  Congress  amended  the  Communications  Act  to  reclassify 
 most  SMR  licensees  as  CMRS  providers  and  establish  the  authority  to  use  competitive  bidding  to  select  from  among  mutually  exclusive  applicants  for  certain  licensed  services.  116  Accordingly,  the  Commission 
 deferred  further  consideration  of  Phase  II  and  incorporated  the  900  MHz  docket  (as  well  as  the  companion  docket  relating  to  800  MHz  SMR),  117  into  its  CMRS  proceeding  to  ensure  that  the  regulation  of  all  SMRs 
 would  be  consistent  with  the  regulation  of  competing  CMRS  services  such  as  cellular  and  PCS  118  and  to  consider  the  impact  of  auction  authority  on  the  record  of  the  pending  900  MHz  proceeding.  119 


 45.  In  the  CMRS  Third  Report  &  Order,  the  Commission  further  revised  its  Phase  II  proposals  and  established  the  broad  outlines  for  the  completion  of  licensing  in  the  900  MHz  SMR  band.  The  Commission 
 concluded  that  (1)  the  900  MHz  SMR  band  would  be  licensed  in  twenty  ten-  channel  blocks  using  MTAs  as  service  areas;  (2)  licensing  of  mutually  exclusive  applicants  for  this  spectrum  would  be  based  on 
 competitive  bidding;  and  (3)  incumbent  licensees  in  the  band  would  retain  the  right  to  operate  under  their  existing  authorizations,  but  would  be  required  to  obtain  the  relevant  MTA  license  (or  obtain  the  consent  of 


 114  See  Private  Land  Mobile  Application  Procedures  for  Spectrum  in  the  896-  901  MHz  and  935-  940  MHz 
 Bands,  Public  Notice,  1  FCC  Rcd  543  (1986).  In  1989,  the  Commission  adopted  a  Notice  of  Proposed  Rule  Making  in  PR  Docket  89-  553,  proposing  to  begin  Phase  II  licensing  of  SMR  facilities  nationwide.  The  NPRM 


 contained  proposals  intended  to  add  flexibility  to  SMR  systems.  The  Commission  continued  its  freeze  on  licensing  outside  the  DFAs  while  the  rulemaking  was  pending,  but  some  DFA  licensees  elected  to  become  licensed  for 
 secondary  sites  (i.  e.,  facilities  that  may  not  cause  interference  to  primary  licensees  and  must  accept  interference  from  primary  licensees)  outside  their  DFAs  to  accommodate  system  expansion.  Amendment  of  Parts  2  and  90  of 
 the  Commission's  rules  to  Provide  for  the  Use  of  200  Channels  Outside  the  Designated  Filing  Areas  in  the  896-  901  MHz  and  935-  940  MHz  Bands  Allotted  to  the  Specialized  Mobile  Radio  Pool,  Notice  of  Proposed  Rulemaking,  PR 
 Docket  No.  89-  553,  4  FCC  Rcd  8673  (1989). 
 115  See  Amendment  of  Parts  2  and  90  of  the  Commission's  Rules  to  Provide  for  the  Use  of  200  Channels 
 Outside  the  Designated  Filing  Areas  in  the  896-  901  MHz  and  935-  940  MHz  Bands  Allotted  to  the  Specialized  Mobile  Radio  Pool,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  PR  Docket  No.  89-  553,  8 


 FCC  Rcd  1469  (1993)  (Phase  II  First  Report  &  Order  &  Further  Notice). 
 116  Omnibus  Budget  Reconciliation  Act  of  1993,  Pub.  L.  No.  103-  66  (Budget  Act),    6002(  b),  107  Stat. 
 312,  392  (1993)  (codified  at  47  U.  S.  C.    332). 
 117  Amendment  of  Part  90  of  the  Commission's  Rules  to  Facilitate  Future  Development  of  SMR  Systems 
 in  the  800  MHz  Frequency  Band,  Further  Notice  of  Proposed  Rulemaking,  PR  Docket  No.  83-  144,  FCC  94-  271,  59  Fed.  Reg.  60,111  (Nov.  22,  1994)  (800  MHz  Further  Notice). 


 118  See  Implementation  of  Sections  3(  n)  and  332  of  the  Communications  Act--  Regulatory  Treatment  of 
 Mobile  Services,  Second  Report  and  Order,  9  FCC  Rcd  1411  (1994)  (CMRS  Second  Report  &  Order);  CMRS  Third  Report  &  Order,  9  FCC  Rcd  7988  (1994). 


 119  Id. 
27
 Federal  Communications  Commission  FCC  04-  168 
 28 
 the  MTA  licensee)  to  be  able  to  expand  their  systems.  120  In  1996  the  Commission  completed  its  auction  of  900  MHz  SMR  licenses  and  announced  the  winning  bidders  to  use  900  MHz  SMR  in  major  MTAs.  121 
 46.  In  the  Balanced  Budget  Act  proceeding,  the  Commission  amended  its  rules  to  permit  CMRS  use  of  PLMRS  frequencies  in  the  800  MHz  land  mobile  band  and  allowed  PLMRS  licensees  to  transfer 
 their  licenses  to  CMRS  entities.  122  In  the  BBA  R&  O  and  FNPRM,  the  Commission  asked  comment  on  whether,  in  the  interest  of  regulatory  symmetry,  it  should  extend  the  same  rules  to  900  MHz  band  land 
 mobile  spectrum.  123  In  the  NPRM  initiating  this  proceeding  we  sought  comment  on  this  issue  in  light  of  Nextel's  proposal  to  accommodate  800  MHz  incumbents  in  the  900  MHz  band.  124 


 D.  1.9  GHz  Band 
 47.  The  Commission  identified  a  large  number  of  potential  bands  to  support  the  types  of  innovative  mobile  services  that  it  has  broadly  described  as  AWS  in  the  January  2001  Notice  of  Proposed 


 Rulemaking  and  Order,  125  and  in  the  August  2001  Memorandum  Opinion  and  Order  and  Further  Notice  of  Proposed  Rule  Making  in  the  ET  Docket  No.  00-  258  proceeding.  126  Collectively,  in  the  Notice  and  the 
 Further  Notice,  the  Commission  sought  comment  on  the  suitability  for  use  by  AWS  of  frequency  bands  that  included  the  1910-  1930  MHz  band  (designated  for  UPCS),  the  1990-  2025  MHz  band  (allocated  for 
 Mobile-  Satellite  Service  (MSS))  and  other  bands.  Subsequent  decisions  have  narrowed  the  spectrum  bands  under  consideration.  In  the  September  2001  First  Report  and  Order  and  Memorandum  Opinion  and 
 Order,  the  Commission  modified  the  existing  allocation  in  the  2500-  2690  MHz  band  to  provide  additional 


 120  CMRS  Third  Report  &  Order  at    119.  The  Commission  noted  that  some  licensees  had  been  granted 
 authorizations  to  construct  facilities  outside  of  the  DFAs,  so  they  could  link  facilities  in  different  markets.  With  respect  to  those  unprotected  sites  (i.  e.,  "secondary  sites"),  the  Commission  stated  that  those  that  were  licensed  on  or 


 before  August  9,  1994,  would  be  entitled  to  primary  site  protection.  Id.  The  Commission  also  eliminated  loading  requirements  for  future  MTA  licensees,  but  retained  them  for  incumbent  900  MHz  SMR  licensees  that  do  not 
 obtain  MTA  licenses.  Id.  at    194. 
 121  In  FCC  Auction  No.  7,  the  Commission  auctioned  1,019  900  MHz  SMR  licenses  in  51  MTAs.  The 
 FCC  granted  most  of  the  licenses  on  August  12,  1996.  See  Public  Notice,  "FCC  Announces  Grant  of  900  MHz  Specialized  Mobile  Radio  MTA  Licenses,"  12  FCC  Rcd  13055  (1996). 


 122  See  Implementation  of  Sections  309(  j)  and  337  of  the  Communications  Act  of  1934  as  Amended; 
 Promotion  of  Spectrum  Efficient  Technologies  on  Certain  Part  90  Frequencies;  Establishment  of  Public  Service  Radio  Pool  in  the  Private  Mobile  Frequencies  Below  800  MHz;  Petition  for  Rule  Making  of  the  American  Mobile 


 Telecommunications  Association,  Report  and  Order  and  Further  Notice  of  Proposed  Rule  Making,  WT  Docket  No.  99-  87,  RM-  9332,  RM-  9405,  RM-  9705,  15  FCC  Rcd  22709,  22760-  22761  (1999)  (BBA  R&  O  and  FNPRM). 


 123  Id.  at  22773-  22774. 
 124  NPRM,  17  FCC  Rcd  at  4918    86. 
 125  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,  Notice  of  Proposed  Rulemaking  and  Order,  16  FCC  Rcd  596  (2001) 


 (AWS  Notice). 
 126  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,  ET  Docket  No.  95-  18,  and  IB  Docket  No.  99-  81,  Memorandum  Opinion 


 and  Order  and  Further  Notice  of  Proposed  Rule  Making,  16  FCC  Rcd  16043  (2001)  (AWS  Further  Notice). 
28
 Federal  Communications  Commission  FCC  04-  168 
 29 
 flexibility,  but  did  not  reallocate  the  band  to  AWS.  127  In  the  November  2002  Second  Report  and  Order,  the  Commission  allocated  ninety  megahertz  of  spectrum  for  AWS,  consisting  of  forty-  five  megahertz  of 
 Federal  Government-  use  spectrum  in  the  1710-  1755  MHz  band  and  forty-  five  megahertz  in  the  2110-  2155  MHz  band.  128 


 48.  Most  recently,  in  its  February  2003  Third  Report  and  Order,  Third  Notice  of  Proposed  Rulemaking  and  Second  Memorandum  Opinion  and  Order,  the  Commission  considered  use  of  spectrum  in 
 the  1910-  1930  MHz  band,  as  well  as  spectrum  allocated  to  the  2  GHz  MSS  service  in  the  1990-  2025  MHz  and  2165-  2200  MHz  bands.  129  In  the  Third  R&  O,  the  Commission  reallocated  the  1990-  2000  MHz,  2020- 
 2025  MHz,  and  2165-  2180  MHz  bands  for  Fixed  and  Mobile  services.  130  In  the  AWS  Third  NPRM,  the  Commission  identified  a  portion  of  the  UPCS  band  at  1910-  1920  MHz  band  as  spectrum  that  could  be 
 made  available  for  AWS  or  other  purposes  and  sought  comment  with  regard  to  using  it  for  paired  or  unpaired  operations  including  entirely  new  AWS  applications,  expansion  of  existing  Broadband  PCS 
 operations  to  support  new  and  innovative  mobile  services,  and  as  relocation  spectrum  for  existing  services.  In  a  separate  proceeding,  ET  Docket  No.  95-  18,  the  Commission  had  established  the  procedures  by  which 
 2  GHz  MSS  licensees  would  relocate  BAS  and  FS  licensees  from  the  1990-  2025  MHz  and  2165-  2200  MHz  bands,  respectively.  In  light  of  the  reallocation  of  a  portion  of  this  spectrum  to  support  new  fixed 
 and  mobile  services,  we  issued  a  Third  Report  and  Order  in  ET  Docket  No.  95-  18  revising  these  relocation  procedures  to  account  for  the  new  entrants  into  the  band.  131 


 49.  Although  the  decisions  we  have  made  in  the  larger  AWS  and  related  proceedings  directly  affect  the  decisions  we  make  today,  the  instant  action  focuses  exclusively  on  allocations  we  make  in  the 
 1910-  1915  MHz  and  1990-  1995  MHz  bands.  Accordingly,  we  address  each  of  those  bands  individually,  and  then  address  the  merits  of  creating  a  paired  allocation  consisting  of  the  two  bands. 


 127  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,  First  Report  and  Order  and  Memorandum  Opinion  and  Order,  16  FCC 


 Rcd  17222  (2001)  (AWS  First  R&  O  and  MO&  O). 
 128  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,  Second  Report  and  Order,  17  FCC  Rcd  23193  (2002)  (AWS  Second 


 R&  O). 
 129  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,  IB  Docket  No.  99-  81,  Third  Report  and  Order,  Third  Notice  of 


 Proposed  Rulemaking  and  Second  Memorandum  Opinion  and  Order,  18  FCC  Rcd  2223  (2003)  (AWS  Third  R&  O,  Third  NPRM,  and  Second  MO&  O). 


 130  Id.  at  2238    28.  We  note  that  there  are  pending  petitions  for  reconsideration  that  request  changes  to 
 decisions  made  in  the  AWS  Third  R&  O.  The  thirty  megahertz  was  reallocated  as  follows:  fourteen  megahertz  of  spectrum  that  was  held  in  reserve  from  the  2  GHz  MSS  licensees,  and  sixteen  megahertz  of  spectrum  that  was 


 abandoned  as  a  result  of  2GHz  MSS  licensees  not  meeting  initial  milestones.  Id.  at  2239    32. 
 131  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  (2003)  (MSS  Third  R&  O). 
29
 Federal  Communications  Commission  FCC  04-  168 
 30 
 1.  1910-  1915  MHz  Band 
 50.  The  1910-  1915  MHz  band  is  a  subset  of  a  larger  twenty  megahertz  band  at  1910-  1930  MHz  that  is  allocated  to  the  fixed  and  mobile  services  on  a  primary  basis,  132  and  is  designated  for  use  by  UPCS 


 devices.  133  Under  the  current  rules,  the  1910-  1920  MHz  portion  of  the  band  may  be  used  for  asynchronous  (generally  data)  UPCS  devices  and  the  1920-  1930  MHz  portion  may  be  used  for  isochronous  (generally 
 voice)  UPCS  devices.  134 
 51.  Before  the  1910-  1930  MHz  band  was  made  available  for  UPCS  applications,  this  band  was  used  by  fixed  point-  to-  point  microwave  links.  To  facilitate  the  introduction  of  UPCS  systems,  the 


 Commission  established  policies  in  the  Emerging  Technologies  proceeding  for  the  relocation  of  incumbent  microwave  systems  from  this  band  and  designated  a  single  entity,  UTAM,  to  coordinate  and  manage  the 
 transition.  135  Unlike  Broadband  PCS,  the  record  for  UPCS  deployment  has  been  mixed.  Currently,  the  most  widespread  application  of  the  1920-  1930  MHz  UPCS  band  is  for  wireless  PBX  systems.  136  A  search 
 of  our  equipment  authorization  database  reveals  no  UPCS  equipment  authorized  for  the  1910-  1920  MHz  band. 


 52.  In  the  AWS  Third  NPRM,  we  revisited  the  issue  of  redesignating  all  or  a  portion  of  the  1910-  1930  MHz  band  for  fixed  and  mobile  services  with  the  intent  of  promoting  AWS  use,  pairing  this  band 
 with  spectrum  in  the  1990-  2000  MHz  band,  and  establishing  reimbursement  procedures  for  UTAMs  relocation  of  incumbent  microwave  links  in  the  UPCS  band.  As  an  initial  matter,  we  decided  to  retain  the 
 1920-  1930  MHz  band  for  isochronous  UPCS  use,  given  the  existing  voice  applications  that  have  been  deployed  in  that  band  segment.  137  In  the  AWS  Third  NPRM,  we  also  sought  comment  on  reallocation 
 options  for  the  1910-  1920  MHz  band.  Specifically,  we  noted  that  asynchronous  UPCS  applications  had  not  been  developed  since  the  service  was  authorized  in  1994,  and  concluded  the  public  interest  would  not  be 
 served  if  the  ten  megahertz  of  spectrum  designated  for  asynchronous  use  in  the  1910-  1920  MHz  band 


 132  See  47  C.  F.  R.    2.106. 
 133  See  47  C.  F.  R.  Part  15    Radio  Frequency  Devices.  Subpart  D  of  Part  15  is  titled  Unlicensed  Personal 
 Communications  Service  Devices. 
 134  Asynchronous  devices  are  defined  as  those  that  transmit  RF  energy  at  irregular  time  intervals,  as 
 typified  by  local  area  network  data  systems,  and  isochronous  devices  are  defined  as  those  that  transmit  at  a  regular  interval,  typified  by  time-  division  voice  systems.  See  47  C.  F.  R.    15.303(  a)-(  d).  To  minimize  the 


 potential  of  systems  in  each  band  interfering  with  other  systems  operating  in  the  same  band,  the  Commission  adopted  rules  requiring  UPCS  devices  to  monitor  the  spectrum  prior  to  transmitting.  Specific  requirements  for  the 
 operation  of  asynchronous  devices  in  the  1910-  1920  MHz  band  are  codified  at  47  C.  F.  R.    15.321  and  specific  requirements  for  the  operation  of  isochronous  devices  in  the  1920-  1930  MHz  band  are  codified  at  47  C.  F.  R.   
 15.323. 
 135  See  Amendment  of  the  Commissions  Rules  to  Establish  New  Personal  Communications  Services, 
 GEN  Docket  No.  90-  314,  Fourth  Memorandum  Opinion  and  Order,  10  FCC  Rcd  7955  (1995).  UTAM  is  the  Commissions  frequency  coordinator  for  UPCS  devices  in  the  1910-  1930  MHz  band.  The  UPCS  band  relocation 


 policies  are  codified  at  47  C.  F.  R.    101.69-  101.81. 
 136  AWS  Third  NPRM,  18  FCC  Rcd  2223    40. 


 137  Id.  at    46. 
30
 Federal  Communications  Commission  FCC  04-  168 
 31 
 remained  fallow  when  there  were  many  applications  that  could  put  it  to  good  use.  138 
 53.  In  conjunction  with  its  proposal  to  redesignate  as  much  as  ten  megahertz  in  the  1910-  1920  MHz  band,  the  Commission  recognized  that  new  licensees  in  the  band  would  reap  the  benefits  of  UTAMs 


 band  clearing  efforts  and  concluded  that  UTAM  should  be  adequately  reimbursed  for  its  efforts.  Therefore,  we  sought  comment  on  proposals  for  reimbursing  UTAM.  In  particular,  we  proposed  that  UTAM  be 
 entitled  to  a  percentage  of  the  total  reimbursement  expenses  incurred  for  the  1910-  1930  MHz  band  as  of  the  effective  date  of  any  final  rules  adopted  in  the  AWS  proceeding.  139 


 54.  We  also  note  that  there  are  several  outstanding  petitions  that  relate  to  use  of  the  1910-  1915  MHz  band  segment.  There  are  four  petitions  for  waiver  filed  by  Lucent,  UTStarcom  &  Drew  University, 
 Ascom,  and  Alaska  Power;  140  and  two  petitions  for  rulemaking  filed  by  WINForum  141  and  UTStarcom,  142  most  of  which  request  various  unlicensed  uses  of  the  band.  In  the  AWS  Further  Notice,  the  Commission 
 sought  comment  on  whether  a  portion  of,  or  the  entire,  1910-  1930  MHz  band  should  be  redesignated  for  AWS  or  as  relocation  spectrum  for  incumbents  in  other  frequency  bands  that  are  displaced  by  new  AWS 
 licensees.  143 
 2.  1990-  1995  MHz  Band 
 55.  The  1990-  2110  MHz  band  (2  GHz  BAS  band)  is  currently  used  extensively  by  the  BAS  for  mobile  TV  pickup  (TVPU)  operations,  including  electronic  newsgathering  (ENG)  operations  to  cover 


 138  In  1994,  the  Commission  anticipated  that  the  1910-  1920  MHz  band  would  be  used  for  data 
 applications  such  as  high-  speed,  high-  capacity  LANs.  See  Amendment  of  the  Commissions  Rules  to  Establish  New  Personal  Communications  Services,  GEN  Docket  No.  90-  314,  Second  Report  and  Order,  8  FCC  Rcd  7700 


 (1993). 
 139  For  example,  the  redesignation  of  five  megahertz  of  the  twenty  megahertz  band  would  entitle  UTAM 
 to  twenty-  five  percent  of  its  total. 
 140  In  its  petition  for  waiver,  Lucent  requests  that  it  be  allowed  to  use  the  1910-  1920  MHz  band  for  its 
 Definity  PBX  voice  system  within  the  confines  of  Cook  County,  Illinois.  Also,  UTStarcom  &  Drew  University  request  permission  to  use  the  1910-  1920  MHz  band  to  install  the  UTStarcom  Personal  Access  System  (PAS)  on  the 


 campus  of  Drew  University  in  Madison,  New  Jersey,  in  order  to  provide  wireless  telephone  service  to  the  students  and  staff,  as  an  extension  of  the  universitys  wired  telephone  system.  In  addition,  Ascom  requests  that  it  be 
 allowed  to  use  the  1910-  1920  MHz  band  for  its  Freeset  DCT  1900  PBX  voice  system  within  the  confines  of  Cook  County,  Illinois;  New  York  City;  and  San  Francisco  County,  California,  because  several  of  its  customers,  which  are 
 boards  of  trade  or  stock  exchange  entities,  need  high-  capacity  indoor  wireless  communications.  Finally,  Alaska  Power  requests  a  waiver  of  Part  15  asynchronous  spectrum  etiquette  to  operate  a  community  wireless  voice  system 
 over  the  1910-  1920  MHz  (data)  band,  in  order  to  serve  small  rural  areas  in  Alaska  that  are  currently  unserved  or  underserved  by  wireless  service  providers. 


 141  In  its  petition  for  rulemaking,  WINForum  asks  the  Commission  to  allow  isochronous  UPCS  devices  to 
 use  the  1910-  1920  MHz  band  and  to  phase  out  asynchronous  use  in  this  band,  thereby  providing  twenty  megahertz  of  spectrum  (1910-  1930  MHz)  for  isochronous  devices,  and  also  to  modify  certain  technical  requirements  for 


 UPCS  devices  in  Part  15. 
 142  In  its  rulemaking  petition,  UTStarcom  requests  that  the  1910-  1920  MHz  band  be  made  available  for 
 licensing  via  competitive  bidding  to  permit  the  establishment  of  community  wireless  network  service,  using  the  UTStarcom  PAS  which  is  based  on  Japans  RCR-  28  Personal  Handy  Phone  System  (PHS)  standard. 


 143  AWS  Further  Notice,  16  FCC  Rcd  16043    9. 
31
 Federal  Communications  Commission  FCC  04-  168 
 32 
 events  of  interest.  144  The  original  2  GHz  BAS  channel  plan  divided  the  band  into  seven  channels,  each  consisting  of  between  16.5  and  18  megahertz.  145  In  the  MSS  Second  R&  O,  the  Commission  reallocated  the 
 1990-  2025  MHz  segment  to  the  MSS  and  established  a  relocation  plan  for  incumbent  BAS.  146  The  Commission  adopted  a  two-  phase  relocation  plan  with  a  cutover  schedule  based  on  market  size  in  which 
 the  BAS  would  eventually  have  access  to  seven  12  megahertz  channels  in  the  2025-  2110  MHz  band  at  the  end  of  the  transition.  147  The  Commission  also  identified  four  broad  categories  of  BAS  markets  LA 
 (Los  Angeles  television  market),  Metro  (remaining  top  30  television  markets),  Light  (television  markets  31-  100),  and  Rural  (television  markets  101  and  above).  148  The  Commission  specified  different 
 relocation  schedules  for  BAS  facilities  based  on  the  size  of  the  market.  149  For  example,  BAS  incumbents  in  markets  1-  30  were  to  be  relocated  on  an  earlier  schedule  than  incumbents  in  markets  31-  100. 


 56.  In  the  MSS  Third  R&  O,  the  Commission  modified  the  plan  that  2  GHz  MSS  licensees  were  to  follow  when  relocating  incumbent  BAS  licensees  to  the  1990-  2025  MHz  band.  150  The  modified  plan 
 provides  for  the  relocation  of  BAS  licensees  to  the  2025-  2110  MHz  band  in  a  single  step,  retains  the  distinction  of  BAS  licensees  by  market  size,  and  requires  the  relocation  of  those  licensees  within  the  time 
 periods  specified  for  their  respective  market  categories.  151  The  Commission  also  noted  that,  subsequent  to  its  establishment  of  the  BAS  relocation  plan,  it  had  reallocated  fifteen  megahertz  of  spectrum  in  the  1990- 


 144  A  TVPU  station  is  a  land  mobile  station  used  for  the  transmission  of  TV  program  material  and  related 
 communications  from  scenes  of  events  back  to  the  TV  station  or  studio.  See  47  C.  F.  R.    74.601(  a)  (listing  classes  of  TV  broadcast  auxiliary  stations).  The  band  is  also  used  by  fixed  BAS  operations  such  as  studio-  transmitter  link 


 (STL)  stations,  TV  relay  stations,  and  TV  translator  relay  stations,  but  the  majority  of  those  operations  are  in  higher  frequency  bands  allocated  to  the  BAS.  See  47  C.  F.  R.  74.601(  b).  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.  We  will  refer  to  these  services  collectively  as  BAS,  and  all  decisions  apply  to  CARS  and  LTTS  operations  in  the  band,  as  well  as  to  BAS. 


 145  The  original  2  GHz  BAS  channel  plan,  which  is  still  in  use,  is  as  follows:  Channel  1  (1990-  2008 
 MHz),  Channel  2  (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). 


 146  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  (2000)  (MSS  Second  R&  O). 


 147  The  Phase  I  channel  plan  an  interim  channel  plan  using  102  megahertz  of  spectrum  at  2008-  2110 
 MHz  during  the  transition  consisted  of  seven  channels  (six  14.5-  megahertz  wide  channels  and  one  15-  megahertz  wide  channel).  The  Phase  II  channel  plan  consisted  of  seven  channels  (six  12.1-  megahertz  wide  channels  and  one 


 12.4-  megahertz  wide  channel)  within  the  final  85  megahertz  of  spectrum  at  2025-  2110  MHz. 
 148  MSS  Second  R&  O,  15  FCC  Rcd  at  12323    19. 


 149  Id.  at  12326-  27    29-  32. 
 150  MSS  Third  R&  O,  18  FCC  Rcd  23638.  In  the  MSS  Third  R&  O,  the  Commission  also  modified  the  plan 
 for  relocating  incumbent  FS  microwave  licensees  in  the  2180-  2200  MHz  band  to  specify  appropriate  interference  standards  and  relocation  guidelines  that  new  fixed  and  mobile  licensees  should  use  when  entering  the  band.  Any  2 


 GHz  MSS  system  that  can  share  spectrum  with  BAS  and/  or  FS  incumbents  is  exempt  from  relocation  obligations  in  the  band  it  can  share.  Id.  at  23669-  70    62-  63,  23671    68. 


 151  The  new  BAS  channel  plan  consists  of  seven  twelve-  megahertz  channels  and  two  500-  kilohertz  data 
 return  link  (DRL)  channels.  Id.  at  23666    55. 
32
 Federal  Communications  Commission  FCC  04-  168 
 33 
 2025  MHz  band  for  new  AWS  entrants.  152  The  Commission  concluded  that  it  was  necessary  to  give  these  new  AWS  entrants  a  realistic  opportunity  to  seek  early  use  of  the  band  in  exchange  for  the  relocation  of 
 incumbent  users,  while  minimizing  the  disruption  to  BAS  incumbents  to  the  extent  possible.  153  The  Commission  found  that  given  the  need  to  provide  for  rapid  introduction  of  AWS  in  the  2  GHz  BAS  band  a 
 two-  phase  relocation  was  no  longer  appropriate.  154 
 57.  In  order  to  provide  early  access  to  the  1990-  2025  MHz  spectrum  for  MSS  licensees  while  maintaining  the  integrity  of  the  BAS  system,  the  Commission  set  up  a  negotiation  structure  that  provided 


 for  a  one-  year  mandatory  negotiation  period,  consistent  with  those  procedures  established  in  the  Emerging  Technologies  proceeding.  155  Under  this  structure,  incumbent  BAS  licensees  in  television  markets  1-  30  are 
 required  to  negotiate  in  good  faith  with  the  new  MSS  entrant  to  facilitate  relocation  from  the  band.  156  Upon  expiration  of  the  mandatory  negotiation  period,  the  new  MSS  entrant  may  involuntarily  relocate 
 incumbent  BAS  licensees  to  the  seven  narrower  channels  in  the  2025-  2110  MHz  band  that  make  up  the  revised  BAS  channel  plan.  157  Once  BAS  licensees  in  markets  1-  30  and  all  fixed  BAS  stations,  regardless 
 of  market  size,  have  been  relocated,  MSS  licensees  may  begin  their  nationwide  operations  in  the  2000- 
 152  Specifically,  the  fifteen  megahertz  of  spectrum  was  reallocated  from  MSS  in  the  1990-  2025  MHz  band 
 to  support  new  fixed  and  mobile  services  ten  megahertz  occupy  the  lower  end  (1990-  2000  MHz)  of  the  band  and  five  megahertz  are  situated  at  the  upper  end  (2020-  2025  MHz).  See  AWS  Third  R&  O,  Third  NPRM,  and  Second 


 MO&  O,  18  FCC  Rcd  2223    15. 
 153  MSS  Third  R&  O,  18  FCC  Rcd  at  23653-  61    29-  44.  The  Commission  noted  that,  although  some  time 
 will  be  required  to  establish  service  rules  and  license  new  fixed  and  mobile  entrants  before  they  can  secure  entry  into  the  band,  the  entry  of  these  new  AWS  licensees  may  occur  relatively  quickly.  Thus,  the  Commission  expected 


 the  band  to  be  used  more  fully  and  more  quickly  by  the  combination  of  the  remaining  MSS  licensees  and  new  AWS  licensees  than  was  anticipated  in  the  MSS  Second  R&  O,  when  the  band  was  to  be  exclusively  used  by  MSS 
 licensees  whose  systems  were  expected  to  be  deployed  and  to  grow  consistent  with  then  distant  milestones. 
 154  The  Commission  determined  that  the  initiation  of  the  Phase  I  relocation  and  a  subsequent  quick 
 transition  to  Phase  II  would  undercut  the  principal  rationale  for  a  two-  phase  transition  that  the  potential  to  leave  substantial  amounts  of  spectrum  unused  for  a  long  period  of  time  would  result  in  inefficient  use  of  valuable  2  GHz 


 spectrum.  See  MSS  Second  R&  O,  15  FCC  Rcd  at  12327    34  (stating  that  a  phased  approach  will  assur[  e]  efficient  use  of  the  spectrum).  In  addition,  the  Commission  reasoned  that,  if  Phase  II  of  the  transition  was  initiated 
 during  the  time  in  which  Phase  I  relocations  are  taking  place,  BAS  operations  could  be  on  three  different  band  plans,  and  some  BAS  licensees  would  face  the  disruption  and  down  time  associated  with  being  twice  relocated  in  a 
 short  period  of  time.  See  MSS  Third  R&  O,  18  FCC  Rcd  at  23655    33. 
 155  MSS  Second  R&  O,  15  FCC  Rcd  at  12328-  31    38-  49.  See  generally,  47  C.  F.  R.    101.73  (good  faith 
 negotiation  requirement). 
 156  For  purposes  of  the  relocation  plan,  BAS  markets  consist  of  Nielsen  Designated  Market  Areas  (DMAs) 
 as  they  existed  on  June  27,  2000.  MSS  Second  R&  O,  15  FCC  Rcd  at  12331    42. 
 157  MSS  Second  R&  O,  15  FCC  Rcd  at  12331    48.  See  generally,  47  C.  F.  R.    101.75.  Under  involuntary 
 relocation,  the  new  MSS  entrant  may,  at  its  own  expense,  make  necessary  modifications  to  or  replace  the  incumbent  licensees  BAS  equipment  such  that  the  BAS  licensee  receives  comparable  performance  from  the 


 modifications  or  replaced  equipment.  The  current  mandatory  negotiation  periods  adopted  in  the  MSS  Third  R&  O  are  as  follows:  MSS  licensees  and  BAS  incumbents  in  markets  1-  30  and  all  BAS  fixed  stations,  regardless  of 
 market  size,  begin  a  mandatory  negotiation  period  that  lasts  for  one  year  from  December  8,  2003.  MSS  Third  R&  O,  18  FCC  Rcd  at  23659-  60    42.  The  Commission  also  provided  for  a  sunset  date,  December  8,  2013,  after 
 which  a  new  licensees  obligation  to  relocate  an  incumbent  BAS  operator  in  the  1990-  2025  MHz  band  will  end.  At  that  time,  BAS  operations  in  the  band  (if  any  remain)  will  operate  on  a  secondary  basis.  See  MSS  Third  R&  O,  18 
 FCC  Rcd  23661-  62    45-  47. 
33
 Federal  Communications  Commission  FCC  04-  168 
 34 
 2020  MHz  band.  On  the  date  the  first  MSS  licensee  begins  operations,  all  BAS  licensees  in  markets  31-  210  must  immediately  cease  operations  on  existing  channels  1  and  2  (1990-  2025  MHz),  and  BAS 
 operations  will  no  longer  be  permitted  in  that  spectrum.  Also  on  this  date,  a  one-  year  mandatory  negotiation  period  will  begin  between  MSS  licensees  and  BAS  incumbents  in  markets  31-  210.  Although 
 MSS  licensees  may  involuntarily  relocate  BAS  incumbents  at  any  time  after  the  expiration  of  the  one-  year  mandatory  negotiation  period,  BAS  incumbents  in  markets  31-  100  must  be  relocated  to  the  seven  narrower 
 channels  in  the  2025-  2110  MHz  band  that  make  up  the  revised  BAS  channel  plan  within  three  years  of  the  date  the  first  MSS  licensee  begins  operations,  and  BAS  incumbents  in  markets  101-  210  must  be  relocated 
 within  five  years  of  this  date.  158 
 58.  Petitions  for  reconsideration  or  clarification  of  BAS  relocation  decisions  made  in  the  MSS  Third  R&  O  were  filed  by  the  Association  for  Maximum  Service  Television  (MSTV),  National  Association 


 of  Broadcasters  (NAB),  Society  of  Broadcast  Engineers  (SBE)  and  Boeing  Company  (Boeing).  The  Radio-  Television  News  Directors  Association  (RTNDA)  filed  comments  in  support  of  the  petition  filed  by 
 the  other  broadcast  parties.  MSTV/  NAB  and  Boeing  filed  oppositions.  ICO  Global  Communications  Limited  (ICO),  NAB/  MSTV/  SBE  and  Boeing  filed  reply  comments.  We  will  address  the  BAS  relocation 
 issues  raised  in  these  petitions  in  this  proceeding.  159 
 3.  Band  Pairing 
 59.  In  the  AWS  Third  NPRM,  we  noted  that  the  1910-  1920  MHz  band  (or  a  portion  thereof)  and  the  1990-  2000  MHz  band  (or  a  portion  thereof)  were  well  suited  to  be  part  of  a  paired  spectrum  allocation, 


 and  tentatively  concluded  that  it  would  serve  the  public  interest  to  adopt  a  five  +  five  megahertz  or  a  ten  +  ten  megahertz  pairing  within  these  bands.  160  We  noted  that  such  a  pairing  would  allow  for  a  number  of 
 new  uses,  including  an  expansion  of  systems  using  the  adjacent  Broadband  PCS  bands.  Moreover,  both  Nextel  and  parties  representing  MDS  licensees  in  the  2150-  2160  MHz  band  have  expressed  interest  in 
 obtaining  this  paired  spectrum.  In  both  instances,  these  parties  proposed  to  make  use  of  paired  spectrum  in  the  1910-  1920  MHz  and  1990-  2000  MHz  band  to  offset  spectrum  they  would  no  longer  use,  in  order  to 
 address  public  safety  interference  concerns  (in  the  case  of  Nextel)  or  would  lose  because  the  spectrum  had  been  reallocated  as  part  of  the  AWS  proceeding  (in  the  case  of  MDS  licensees). 


 60.  We  noted  that  such  an  allocation  might  allow  for  quicker  design  and  deployment  of  new  equipment  because  existing  Broadband  PCS  systems  operate  on  adjacent  bands,  and  that  because  the  1910- 
 1920  MHz  band  lacks  incumbent  UPCS  users,  new  licensees  need  only  address  relocation  as  it  pertains  to  the  relocation  of  incumbent  point-  to-  point  microwave  systems  in  the  band.  We  also  noted  that  a  five  + 
 five  megahertz  block  pairing  could  accommodate  the  design  specifications  of  both  existing  high-  power  mobile  applications  (such  as  Broadband  PCS)  and  systems  (such  as  WCDMA  and  CDMA-  2000)  that  have 
 commonly  been  proposed  for  AWS  deployment.  161 


 158  MSS  Third  R&  O,  18  FCC  Rcd  at  23657    38. 
 159  See    264-  276  infra.  We  note  that  there  is  an  additional  pending  petition  for  clarification  and 
 reconsideration  of  FS  relocation  decisions  made  in  the  MSS  Third  R&  O  filed  jointly  by  the  American  Petroleum  Institute  and  UTC,  but  we  will  address  the  FS  issues  raised  in  this  petition  at  a  later  date. 


 160  AWS  Third  NPRM,  18  FCC  Rcd  2223    48. 
 161  Id.  at    48-  49. 
34
 Federal  Communications  Commission  FCC  04-  168 
 43 
 63.  We  conclude  that  in  order  to  abate  the  interference  in  the  800  MHz  band,  the  Commission  has  the  authority  to  modify  licenses  so  as  to  locate  licensees  in  other  portions  of  the  spectrum.  Indeed,  in  the 
 Auction  Reform  Act  of  2002,  Congress  found  that  one  "option"  available  to  the  Commission  to  resolve  the  interference  problem  that  exists  in  the  800  MHz  band  would  involve  the  use  of  spectrum  outside  of  the  800 
 MHz  band.  210  Clearly  Congress  indicated  its  approval  of  our  consideration  of  allocating  spectrum  in  the  Upper  700  MHz  band,  as  well  as  other  options,  to  resolve  the  interference  problems  in  the  800  MHz  band. 
 As  we  discuss  infra,  over  the  course  of  this  proceeding,  we  have  considered  several  bands,  including  the  Upper  700  MHz  band,  to  facilitate  the  restructuring  of  the  band.  While  the  Upper  700  MHz  band  has  not 
 proven  to  be  a  viable  option  because  of  the  inherent  fluidity  of  the  transition  to  DTV,  we  have  found  that  the  1.9  GHz  band  is  an  option,  and,  in  fact,  the  most  viable  and  best  option,  to  facilitate  the  restructuring  of 
 the  800  MHz  band  as  contemplated  by  Congress. 
 64.  We  find  we  have  legal  authority  under  the  Communications  Act  to  implement  the  spectrum  management  plan  set  forth  in  this  Report  and  Order  including  the  authority  to  (i)  modify  Nextels  licenses 


 to  permit  operations  in  the  1.9  GHz  band  and  (ii)  include  relocation  and  potential  anti-  windfall  payments  from  Nextel  within  the  rebanding  plan.  Pursuant  to  Sections  316,  303,  301,  and  4(  i)  of  the  Act,  211  we  have 
 broad  authority  to  effectuate  a  spectrum  management  plan  that  includes  license  modifications  to  serve  the  public  interest.  Further,  the  courts  have  recognized  and  deferred  to  our  policy  responsibilities  in  assessing 
 the  public  interest  and  exercising  this  authority.  212 
 65.  The  Commission  has  the  authority  to  modify  licenses  pursuant  to  Section  316  to  solve  the  interference  problems  in  the  800  MHz  band.  Specifically,  Section  316(  a)(  1),  provides  that  [  a]  ny  station 


 license  .  .  .  may  be  modified  by  the  Commission  .  .  .  if  in  the  judgment  of  the  Commission  such  action  will  promote  the  public  interest,  convenience  and  necessity.  213  As  the  D.  C.  Circuit  recently  explained  in 
 California  Metro  Mobile  Communications  v.  FCC  (CMMC),  Section  316  grants  the  Commission  broad  power  to  modify  licenses;  the  Commission  need  only  find  that  the  proposed  modification  serves  the  public 
 interest,  convenience  and  necessity.  214  The  D.  C.  Circuit  has  held  that  such  modifications  do  not  have  to 


 210  The  Auction  Reform  Act  of  2002.  See  n.  109  supra 
 211  47  U.  S.  C.    316,  303,  301,  and  154(  i). 
 212  See,  e.  g.,  Teledesic  LLC  v.  Federal  Communications  Commission,  275  F.  3d  75,  84  (D.  C.  Cir.  2001) 
 ([  W]  hen  it  is  fostering  innovative  methods  of  exploiting  the  spectrum,  the  Commission  functions  as  a  policymaker  and,  inevitably,  a  seer  roles  in  which  it  will  be  accorded  the  greatest  deference  by  a  reviewing 


 court.  )  (citation  omitted). 
 213  47  U.  S.  C.    316  (a)(  1). 


 214  California  Metro  Mobile  Communications  v.  FCC,  365  F.  3d  38,  45  (D.  C.  Cir.  2004)  (CMCC).  In 
 CMMC,  the  court  upheld  the  authority  of  the  Commission  to  modify  CMMCs  license  by  deleting  a  frequency  which  had  the  potential  to  cause  interference  to  an  existing  licensee.  The  Commission  undertook  the  action  to 


 correct  an  error  of  a  frequency  coordinator,  who  recommended  that  the  Commission  grant  CMMC  a  license  after  the  coordinator  had  incorrectly  determined  that  the  requested  frequencies  would  not  cause  interference  to  any 
 existing  licensee.  Among  other  things,  the  court  found  that  section  316  is  not  unambiguous  and  therefore  deferred  to  the  Commissions  interpretation  that  section  316  contains  no  limitation  on  the  time  frame  within  which  it  may 
 act  to  modify  a  license  and  that  its  action  under  the  section  is  not  subject  to  the  limitations  on  revocation,  modification  or  reconsideration  imposed  by  [s]  ection  405.  365  F.  3d  at  45  (citations  omitted).  The  court  also 
 found  that  the  Commissions  modification  served  the  public  interest,  even  though  the  modification  was  based  on  potential  rather  than  actual  interference,  and  it  caused  a  minor  disruption  in  CMMCs  operations.  Id.  at  46. 
43
 Federal  Communications  Commission  FCC  04-  168 
 44 
 be  consensual  215  ,  that  license  holders  may  be  moved  on  a  service-  wide  basis,  without  license-  by-  license  consideration,  216  and  that  eliminating  harmful  interference  is  an  accepted  basis  for  ordering  license 
 modifications.  217 
 66.  Furthermore,  the  D.  C.  Circuit  has  upheld  the  Commissions  authority  to  allocate  the  relocation  costs  associated  with  license  modifications  among  the  affected  licensees.  In  Teledesic,  LLC  v.  FCC,  275 


 F.  3d  75,  n.  212  supra,  the  court  upheld  the  Commissions  rules  requiring  satellite  owners  to  pay  the  relocation  costs  of  terrestrial  users  that  they  chose  to  displace  as  part  of  a  rebanding  of  shared  spectrum. 
 The  court  noted  that  the  approach  to  allocating  relocation  costs  was  similar  to  approaches  that  the  Commission  had  adopted  in  both  the  Emerging  Technologies  and  2  GHz  MSS  relocation  proceedings.  218 


 67.  The  D.  C.  Circuit  also  has  upheld  license  modifications  that  involve  relocating  existing  licensees  to  new  spectrum,  outside  of  the  auction  process.  Specifically,  the  court  found  that  the 
 Commission  may  approve  spectrum  swaps  between  existing  licensees,  without  offering  the  swapped  spectrum  to  alternative  users.  219  The  Commission  also  has  moved  licensees  to  unassigned  spectrum  under 
 its  modification  authority.  In  the  MSS  Order  the  Commission,  citing  Rainbow  Broadcasting,  exercised  its  authority  under  Section  316  to  assign  open  spectrum  in  the  upper  and  lower  L-  bands  to  Motient  Services 
 (Motient).  220  The  spectrum  replaced  spectrum  that  the  Commission  had  assigned  to  Motient  in  the  upper  L-  band  that  the  United  States  had  been  unable  to  coordinate  internationally  for  use  by  a  U.  S.  licensee.  221 
 The  Commission  found  that  it  was  in  the  public  interest  to  ensure  that  the  existing  MSS  licensee  was  afforded  sufficient  spectrum  to  provide  a  viable  service  to  remote  and  sparsely  populated  areas 
 expeditiously,  before  opening  up  this  spectrum  to  additional  applications.  222  Similarly,  in  the  DEMS 
 215  Peoples  Broadcasting  Co.  v.  United  States,  209  F.  2d  286,  288  (D.  C.  Cir.  1953).  In  Peoples 
 Broadcasting,  the  court  upheld  the  Commissions  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. 
 216  Community  Television,  Inc.  v.  FCC,  216  F.  3d  1133,  1140  (D.  C.  Cir.  2000).  In  Community  Television, 
 the  court  upheld  the  FCCs  rules  establishing  procedures  and  timetable  under  which  television  broadcasting  would  migrate  from  analog  to  digital  technology. 


 217  See  CMCC,  365  F.  3d  38,  n.  214  supra. 
 218  Teledesic  LLC  v.  Federal  Communications  Commission,  275  F.  3d  at  86. 
 219  See  Rainbow  Broadcasting  v.  FCC,  949  F.  2d  405,  410  (D.  C.  Cir.  1991)(  Rainbow  Broadcasting),  in 
 which  the  court  held  the  Commission  had  the  authority  to  allow  noncommercial  and  commercial  television  licensees  to  exchange  channels  without  exposing  licensees  to  competing  applications,  despite  third-  party  interest  in 


 acquiring  swapped  license.  We  disagree  with  commenters  who  assert  that  subsequent  amendments  in  the  Balanced  Budget  Act  of  1997,  which  generally  requires  auctions  whenever  mutually  exclusive  applications  for  initial  licenses 
 are  filed,  change  the  applicability  of  these  cases.  See  Attachment  to  Letter,  dated  April  2,  2004  from  R.  Michael  Senkowski,  Esq.  to  John  Rogovin,  General  Counsel,  Federal  Communications  Commission  at  6.  For  the  reasons 
 we  discuss  at    73  infra,  we  believe  that  Section  309(  j),  as  amended  by  the  Balanced  Budget  Act,  is  consistent  with  our  conclusion  that  we  have  the  authority  to  avoid  mutual  exclusivity  in  this  context  if  it  is  in  the  public  interest  to 
 do  so. 
 220  Establishing  Rules  and  Policies  for  the  Use  of  Spectrum  for  Mobile  Satellite  Services  in  the  Upper  and 
 Lower  L-  Band,  Report  and  Order,  17  FCC  Rcd  2704  (2002)  (MSS  Order). 
 221  MSS  Order,  17  FCC  Rcd  at  2795    1. 


 222  MSS  Order,  17  FCC  Rcd  at  2713-  2714    25. 
44
 Federal  Communications  Commission  FCC  04-  168 
 45 
 Relocation  Order,  223  the  Commission,  pursuant  to  Section  316,  modified  licenses  to  relocate  the  operations  of  certain  Digital  Electronic  Message  Service  (DEMS)  licensees  from  the  18  GHz  band  to  the  24  GHz 
 band,  in  order  to  accommodate  Department  of  Defense  military  systems. 
 68.  Here,  we  have  determined  that  the  subject  license  modifications  clearly  serve  the  public  interest,  convenience  and  necessity,  as  required  by  Section  316,  because  as  the  record  in  this  proceeding 


 establishes  these  modifications  are  essential  components  of  the  most  effective  and  equitable  band  restructuring  plan  required  to  resolve  serious  and  heretofore  intractable  interference  problems  problems 
 that  have  impaired  and  continue  to  impair  public  safety  operations  in  the  800  MHz  band.  224  As  we  stated  at  the  outset  of  this  Report  and  Order,  to  ensure  that  the  Nations  public  safety  agencies  can  effectively 
 carry  out  their  Homeland  Security  obligations,  we  must  remedy  the  problem  of  interference  in  the  800  MHz  band  and  ensure  that  public  safety  agencies  have  access  to  sufficient  spectrum.  Relocating  public 
 safety  users  out  of  the  800  MHz  band  is  not  a  viable  option,  for  the  reasons  discussed  at    207,  infra.  Without  the  removal  of  all  of  Nextels  800  MHz  spectrum  below  817  MHz  and  the  relocation  of  other 
 licensees  in  the  band  (including  public  safety  licensees),  the  spectrum-  based  problems  facing  public  safety  agencies  in  the  800  MHz  band  cannot  be  satisfactorily  resolved.  For  practical  reasons,  we  cannot  place  the 
 financial  burden  of  relocation  on  the  thousands  of  incumbent  non-  cellular  800  MHz  licensees,  including  state  and  local  public  safety  agencies  with  very  limited  resources,  and  expect  that  the  interference  problem 
 would  be  resolved  in  either  a  timely  or  acceptable  manner.  And,  we  would  be  failing  to  carry  out  our  statutory  duties  as  spectrum  manager  if  we  were  to  allow  the  current  interference  crisis  to  languish.  By 
 modifying  Nextels  licenses  to  authorize  operations  in  the  1.9  GHz  band,  we  have  created  a  mechanism  to  enable  the  band  restructuring  to  occur  without  despite  the  significant,  spectral,  operational,  financial  and 
 other  obstacles.  As  the  record  demonstrates,  this  is  the  best  option  available  to  us.  225 
 69.  We  also  find  that  public  safety  rebanding  does  not  trigger  an  auction  requirement.  We  disagree  with  parties  who  argue  that  the  Ashbacker  doctrine  and  Section  309(  j)  of  the  Communications  Act 


 preclude  us  from  granting  the  1.9  GHz  spectrum  rights  to  Nextel  pursuant  to  Section  316.  In  Ashbacker,  226  the  Supreme  Court  held  that  under  Section  309(  a)  of  the  Act,  227  in  cases  in  which  there  are  mutually 
 exclusive  applications  for  a  license,  the  Commission  must  provide  a  hearing  for  each  applicant.  Ashbacker,  however,  did  not  preclude  the  Commission  from  adopting  licensing  mechanisms  through  its 
 rulemaking  process  that  foreclose  competing  applications.  Subsequent  to  Ashbacker,  Congress  enacted  Section  309(  j)  of  the  Act,  which  generally  requires  the  Commission  to  dispose  of  mutually  exclusive 
 applications  by  auction.  228  Nothing  in  Section  309(  j)  requires  the  Commission  to  accept  mutually 
 223  Amendment  of  the  Commissions  Rules  to  Relocate  the  Digital  Electronic  Message  Service  from  the 
 18  GHz  Band  to  the  24  GHz  band  and  to  Allocate  the  24  GHz  Band  for  Fixed  Service,  Order,  12  FCC  Rcd  3471  (1997). 


 224  See    61  supra  and    213-  216  infra. 
 225  See    217-  222  infra. 
 226  Ashbacker  v.  FCC,  326  U.  S.  327  (1945). 
 227  47  U.  S.  C.    309(  a).  This  provision  authorizes  the  Commission,  upon  examination  of  an  application  for 
 a  station  license,  to  grant  it  if  the  Commission  determines  that  the  public  interest,  convenience,  and  necessity  would  be  served  by  the  grant. 


 228  47  U.  S.  C.    309(  j)(  1)  provides  [  i]  f,  consistent  with  the  obligations  described  in  paragraph  (6)(  e), 
 mutually  exclusive  applications  are  accepted  for  any  initial  license  or  construction  permit,  then  .  .  .  the  Commission  shall  grant  the  license  or  permit  to  a  qualified  applicant  through  a  system  of  competitive  bidding  that  meets  the 


 requirements  of  this  subsection. 
45
 Federal  Communications  Commission  FCC  04-  168 
 46 
 exclusive  applications  in  the  first  place.  Moreover,  Section  309(  j)  applies  only  to  initial  licenses.  As  noted  above,  the  D.  C.  Circuit  has  found  that  reassignments  to  new  spectrum  are  not  fundamental  changes 
 to  the  original  licenses  that  themselves  trigger  the  requirements  for  license  revocation  and  reissuance.  229  Here,  our  order  changing  the  frequency  of  licensees  facilities  neither  triggers  a  right  to  file  competing 
 applications  under  Ashbacker  nor  compels  an  auction  pursuant  to  Section  309(  j).  As  the  court  found  in  the  Rainbow  case,  230  the  Commission  is  not  required  to  open  all  frequencies  for  competing  applications,  as 
 long  as  it  provides  a  reasoned  explanation  of  its  decision  not  to  do  so.  These  principles  are  consistent  with  other  Commission  decisions  where  we  modified  licenses  pursuant  to  Section  316.  For  example,  in  the 
 MSS  Order,  where  the  Commission  exercised  its  authority  under  Section  316  to  assign  to  one  licensee  the  rights  for  up  to  twenty  megahertz  of  open  spectrum,  the  Commission  found  that  the  proceeding  did  not 
 involve  initial  applicants  and  the  hearing  rights  of  eligible  new  applicants  under  Section  309.  231 
 70.  We  also  disagree  with  parties  who  argue  that  the  1.9  GHz  spectrum  to  be  assigned  to  Nextel  is  so  much  more  valuable  than  the  spectrum  it  is  currently  authorized  to  operate  that  the  difference  elevates 


 the  modification  process  to  a  grant  of  an  initial  license,  which  under  Section  309(  j)  [must]  be  subject  to  auction  procedures.  232  To  support  this  position,  CTIA  cites  the  Commissions  Competitive  Bidding 
 Second  Report  and  Order  in  which  it  adopted  rules  for  competitive  bidding  pursuant  to  Section  309(  j): 
 Where  a  modification  would  be  so  major  as  to  dwarf  the  licensees  currently  authorized  facilities  and  the  application  is  mutually  exclusive  with  other  major  modifications  or  initial  applications,  the 


 Commission  will  consider  whether  these  applications  are  in  substance  more  akin  to  initial  applications  and  treat  them  accordingly  for  purposes  of  competitive  bidding.  233 


 71.  As  a  preliminary  matter,  the  modification  of  Nextels  licenses  does  not  create  a  circumstance  in  which  an  application  is  mutually  exclusive  with  other  major  modifications  or  initial  applications.  The 
 Commission  has  accepted  no  other  applications  for  the  1.9  GHz  spectrum.  234  At  least  one  commercial  provider  has  stated  its  intention  to  participate  in  an  immediate  auction  of  the  1.9  GHz  spectrum.  235 


 229  See  Community  Television,  Inc.  v.  FCC,  216  F.  3d  1133,  n.  229  supra. 
 230  Rainbow  Broadcasting,  949  F.  2d  at  409-  410. 
 231  MSS  Order  17  FCC  Rcd  at  2175    27.  See  also  Amendment  of  the  Commissions  Rules  to  Relocate 
 the  Digital  Electronic  Message  Service  from  the  18  GHz  Band  to  the  24  GHz  band  and  to  Allocate  the  24  GHz  Band  for  Fixed  Service,  Memorandum  Opinion  and  Order,  13  FCC  Rcd  15147  at  15173    59  (1998)  (  Because  its 


 actions  [to  relocate  DEMS  licensees  to  new  spectrum]  were  license  modifications  under  authority  of  Section  316,  and  did  not  involve  the  grant  of  initial  licenses,  the  Commission  was  not  authorized  under  309(  j)  of  the  Act  to  use 
 auction  procedures.). 
 232  See,  e.  g.,  U.  S.  Cellular  Comments  at  5;  CTIA  December  4,  2003  Ex  Parte  at  8. 


 233  CTIA  December  4,  2003  Ex  Parte  at  8-  9,  citing  Implementation  of  Section  309(  j)  of  the 
 Communications  Act  Competitive  Bidding,  PP  Docket  No.  93-  253,  Second  Report  and  Order,  9  FCC  Rcd  2348,  2355    37  (1994). 


 234  Verizon  Wireless  submitted  a  ULS  application  and  a  Form  175  application  for  the  1910-  1915 
 MHz/  1990-  1995  MHz  band  but  these  applications  were  dismissed  on  July  7,  2004.  See  Letter,  dated  July  7,  2004,  from  Kathryn  Garland,  Deputy  Chief,  Auctions  and  Spectrum  Access  Division,  Wireless  Telecommunications 


 Bureau,  Federal  Communications  Commission  to  John  T.  Scott,  III,  Cellco  Partnership  d/  b/  a  Verizon  Wireless;  Letter,  July  7,  2004,  from  Wireless  Telecommunications  Bureau  to  John  T.  Scott,  III,  Cellco  Partnership  d/  b/  a 
 Verizon  Wireless. 
 235  Verizon  Wireless  White  Paper  at  9  (April  1,  2004)  citation  omitted 
46
 Federal  Communications  Commission  FCC  04-  168 
 47 
 Nevertheless,  we  have  not  authorized  the  filing  of  applications  for  this  spectrum,  have  never  proposed  to  do  so,  and,  for  the  reasons  set  forth  herein  relating  to  important  public  safety  concerns,  conclude  that  it  is 
 not  in  the  public  interest  to  open  the  spectrum  for  competitive  applications. 
 72.  The  above-  quoted  language  from  the  Competitive  Bidding  Second  Report  and  Order  also  indicates  that  the  Commission  will  consider  the  nature  of  the  modification  if  it  works  a  major  change, 


 and  this  is  exactly  what  we  have  done  here.  The  plan  we  adopt  today  places  Nextel  in  a  comparable  position  to  that  which  it  now  occupies  and  contains  a  cash  payment  mechanism  that  would  become 
 effective  if  necessary  to  ensure  that  Nextel  does  not  reap  a  windfall  from  savings  in  reconfiguration  costs.  As  detailed  elsewhere  in  this  Report  and  Order,  we  have  found  that  the  license  modifications  that  we  are 
 ordering  in  this  proceeding  clearly  promote  the  public  interest,  convenience,  and  necessity,  as  required  by  Section  316,  and  that  an  alternative  process  that  does  not  assign  the  1.9  GHz  band  for  use  in  connection 
 with  the  public  safety  rebanding  would,  at  best,  provide  fewer  and  less  effective  public  interest  benefits  236 
 73.  Moreover,  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.  Although  309(  j)  generally  requires 


 auctions  whenever  mutually  exclusive  applications  for  initial  licenses  are  filed,  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.  237  Thus,  in  Section  309(  j)(  6)(  E),  Congress  recognized  that  the  Commission  can  determine 
 236  Similarly,  we  disagree  with  parties  who  assert  that  under  Fresno  Mobile  Radio  v.  FCC,  165  F.  3d  965 
 (D.  C.  Cir.  1999),  the  grant  of  the  1.9  GHz  spectrum  must  be  considered  an  initial  license  subject  to  auction  under  Section  309(  j).  See  Verizon  White  Paper  at  10-  11  and  CTIA  Ex  Parte  (December  4,  2003)  at  8-  9.  In  Fresno,  a 


 group  of  incumbent  licensees  challenged  the  Commission's  decision  to  auction  newly  established  geographic-  area  SMR  licenses  in  the  upper  200  channels  of  the  SMR  band,  arguing  that,  to  the  extent  the  new  licenses  did  not  cover 
 a  new  service,  new  territory  or  previously  unused  spectrum,  the  Commission  should  have  treated  the  SMR  authorizations  as  modifications  of  the  incumbents'  existing  licenses  and  not  as  auctionable  "initial  licenses"  within 
 the  meaning  of  Section  309(  j)(  1).  The  court  disagreed,  upholding  the  Commission's  determination  that  it  could  classify  a  new  license  as  an  "initial"  one,  even  if  the  initial  and  preexisting  licenses  have  such  overlap,  "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.  Fresno,  165  F.  3d  at  970.  As  explained  above,  we  do  not  consider  the 
 authorizations  that  Nextel  will  hold  as  a  result  of  the  restructuring  process  to  differ  significantly  enough  in  terms  of  rights  and  responsibilities  from  Nextel's  existing  authorizations  so  as  to  warrant  treatment  as  the  issuance  of  an 
 initial  license  rather  than  as  a  modification  of  license.  Moreover,  even  if  we  were  to  classify  the  1.  9  GHz  authorization  as  a  matter  of  initial  licensing,  we  have  not  authorized  the  filing  of  mutually  exclusive  applications; 
 none  are,  in  fact,  on  file;  and,  as  discussed  in    73,  infra,  we  have  the  authority  and  obligation  to  impose  threshold  qualifications  that  preclude  the  filing  of  such  mutually  exclusive  applications  if  we  determine  that  the 
 public  interest  requires  such  an  approach. 
 237  47  U.  S.  C.  309(  j)(  6)(  E)  (emphasis  added).  The  legislative  history  of  the  Balanced  Budget  Act  of  1997 
 also  makes  clear  that  Congress  did  not  want  the  Commission  to  interpret  its  expanded  auction  authority  in  a  way  that  would  reduce  its  Section  309(  j)(  6)  (E)  obligation:  [  T]  he  conferees  emphasize  that,  notwithstanding  its 


 expanded  auction  authority,  the  Commission  must  still  ensure  that  its  determinations  regarding  mutual  exclusivity  are  consistent  with  the  Commission's  obligations  under  section  309(  j)(  6)(  E).  The  conferees  are  particularly 
 concerned  that  the  Commission  might  interpret  its  expanded  competitive  bidding  authority  in  a  manner  that  minimizes  its  obligations  under  section  309(  j)(  6)(  E),  thus  overlooking  engineering  solutions,  negotiations,  or  other 
 tools  that  avoid  mutual  exclusivity."  H.  R.  Conf.  Rep.  No.  105-  217,  105th  Cong.,  1st  Sess.,  at  572  (1997).  See  also  Commissions  Rules  Regarding  Multiple  Address  Systems,  Report  and  Order,  15  FCC  Rcd11956,  11962-  63 
 (2000)  (  Section  309  (j)(  6)  (E)  has  been  construed  to  give  the  Commission  broad  authority  to  create  or  avoid  mutual  exclusivity  in  licensing,  based  on  the  Commissions  assessment  of  the  public  interest,  citing  DirectTV,  Inc. 
 v.  FCC,  110  F.  3d  816,  828  (D.  C.  Cir.  1997)).  Cf.  Benkelman  Telephone  Co.  v.  FCC,  220  F.  3d  601,  605-  606  (D.  C.  (continued.) 
47
 Federal  Communications  Commission  FCC  04-  168 
 48 
 that  its  public  interest  obligation  warrants  action  that  avoids  mutual  exclusivity,  and  that  this  obligation  extends  to  application  and  licensing  proceedings  (which  include  license  modifications),  not  just  initial 
 licensing  matters.  Other  provisions  of  the  Act  confirm  our  conclusion  that  the  auction  requirements  of  Section  309(  j),  with  their  statutory  limitations  and  qualifications  that  recognize  the  existence  of  potentially 
 higher  public  uses  for  spectrum,  do  not  preclude  our  furtherance  of  the  public  interest  by  adopting  a  band  restructuring  approach  that  avoids  mutual  exclusivity,  promotes  public  safety,  and  provides  Nextel  access 
 to  substitute  spectrum  with  which  it  may  continue  the  development  of  its  services.  238 
 74.  We  also  note  that,  as  an  alternative  licensing  approach  toward  the  same  end,  we  could  have  exercised  our  authority  to  grant  rights  to  the  ten  megahertz  of  spectrum  to  Nextel  as  an  initial  license, 


 without  subjecting  the  spectrum  to  competitive  bidding  procedures.  The  auction  requirement  of  Section  309(  j)(  1)  applies  only  when  the  Commission  has  accepted  mutually  exclusive  applications  for  an  initial 
 license.  As  with  a  license  modification  approach,  under  an  initial  licensing  scenario,  eligibility  for  the  1.9  GHz  spectrum  would  have  to  be  limited  to  Nextel  for  the  restructuring  plan  to  address  satisfactorily  the 
 public  interest  imperatives  that  we  have  identified.  That  eligibility  restriction  would  be  justified  in  the  initial  licensing  context  on  the  same  public  interest  grounds  that  we  have  discussed  above  in  connection 
 with  our  authority  to  modify  licenses  under  Section  316.  239 
 75.  Our  authority  to  require  a  cash  payment  from  Nextel  in  the  future  if  needed  to  prevent  a  windfall  that  otherwise  might  flow  from  its  new  rights  to  use  the  1.9  GHz  spectrum  derives  from  Sections 


 4(  i)  and  303(  r)  of  the  Act.  240  Consistent  with  the  public  interest  and  Nextels  own  proposal,  Nextel  has  agreed  to  assume  financial  responsibility  for  reconfiguring  the  800  MHz  band.  As  explained  below, 
 however,  we  cannot  be  certain  what  Nextels  ultimate  costs  of  fulfilling  that  obligation  will  be.  241  If  those  (Continued  from  previous  page) 
 Cir.  2000)  (Section  309(  j)(  6)(  E)  neither  requires  the  Commission  to  avoid  mutual  exclusivity,  nor  to  create  it;  the  touchstone  is  what  best  serves  the  public  interest). 


 238  See  47  U.  S.  C.    151  (listing  as  one  of  Acts  central  purposes  promoting  safety  of  life  and  property 
 through  the  use  of  wire  and  radio  communication).  See  also  47  U.  S.  C.    303(  c)  (instructing  the  Commission  to  assign  frequencies  to  individual  stations  as  the  public  convenience,  interest  or  necessity  requires),  309(  j)(  6)(  C) 


 (providing  309(  j)  should  not  be  construed  to  diminish  the  authority  of  the  Commission  to  regulate  or  reclaim  spectrum  licenses);  309(  j)(  7)  (prohibiting  Commission  from  basing  the  decision  whether  to  auction  spectrum  on  a 
 desire  for  federal  revenue);  309(  j)(  2)(  A)  (setting  out  auctions  exemption  for  public  safety  radio  service  licenses,  thus  recognizing  that  auctions  may  not  always  serve  the  public  interest  in  connection  with  public  safety  licensing), 
 and  309(  j)(  6)(  G)  (providing  that  Section  309(  j)  shall  not  be  construed  to  prevent  the  Commission  from  awarding  licenses  to  persons  who  make  significant  contributions  to  the  development  of  new  telecommunications  services  or 
 technologies). 
 239  The  Supreme  Court  upheld  the  Commissions  authority  to  limit  eligibility  to  apply  for  a  license  where 
 the  Commission  was  able  to  demonstrate  that  doing  so  furthered  the  public  interest.  See  United  States  v.  Storer  Broadcasting  Company,  351  U.  S.  192,  202  (1956).  See  also  47  U.  S.  C.    309  (j)(  3),  which  directs  that  in 


 specifying  eligibility  [,]  .  .  .  the  Commission  shall  include  safeguards  to  protect  the  public  interest  in  the  use  of  the  spectrum  and  shall  seek  to  promote  the  purposes  specified  in  section  1  of  this  Act. 


 240  Section  4(  i)  of  the  Act  provides  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.  47  U.  S.  C    154.  Section  303(  r)  provides  that  the  Commission  .  .  .  as  public  convenience,  interest,  or 


 necessity  requires  shall  [m]  ake  such  rules  and  regulations  and  prescribe  such  restrictions  and  conditions,  not  inconsistent  with  law,  as  may  be  necessary  to  carry  out  the  provisions  of  this  Act  47  USC    303  (r).  See  United 
 States  v.  Storer  Broadcasting,  351  U.  S.  192,  202  (1956)  (finding  that  these  provisions  grant  general  rulemaking  power  not  inconsistent  with  the  Act  or  law). 


 241  See    179  infra. 
48
 Federal  Communications  Commission  FCC  04-  168 
 49 
 reconfiguration  costs  are  unexpectedly  high,  then  Nextel  nevertheless  will  be  obligated  to  incur  them.  The  cash  payment  mechanism  we  adopt  here  addresses  the  converse  possibility  that  reconfiguration  costs  will 
 be  relatively  low.  In  that  situation,  the  terms  of  the  spectrum  exchange  with  Nextel  will  reflect  those  savings,  maintaining  an  equitable  exchange.  In  this  way,  savings  in  reconfiguration  expenses  will  be 
 realized  as  a  public  benefit  (i.  e.,  a  payment  to  the  U.  S.  Treasury),  rather  than  providing  Nextel  an  unwarranted  windfall  from  the  license  modification. 


 76.  The  situation  here  is  analogous  in  key  regards  to  that  addressed  in  the  Mtel  case,  242  where  the  court  upheld  the  Commissions  authority  under  Section  4(  i)  to  impose  a  payment  requirement  on  a  licensee 
 holding  a  pioneers  preference  license  that  the  Commission  had  originally  awarded  without  a  payment  requirement.  Specifically,  the  court  upheld  the  Commissions  authority  to  require  payment  under  Section 
 4(  i)  to  ensure  the  achievement  of  the  Commissions  statutory  responsibility  to  grant  a  license  only  where  the  grant  would  serve  the  public  interest,  convenience  and  necessity  [pursuant  to  Section  309(  a)].  243  The 
 court  accord[  ed]  substantial  deference  to  the  Commissions  judgment  regarding  how  the  public  interest  is  best  served  and  cited  with  approval  specific  public  interest  concerns  that  the  Commission  Order 
 suggested  that  the  payment  requirement  would  satisfy,  including  elimination  of  the  possibility  of  unjust  enrichment  and  predation  by  a  deep-  pocketed  Mtel.  244  Similar  to  the  payment  requirement  that  was 
 upheld  in  Mtel,  in  this  Report  and  Order  we  impose  a  payment  requirement  pursuant  to  Section  4(  i)  and  Section  303(  r)  to  ensure  that  we  fulfill  our  statutory  responsibility  to  modify  a  license  only  where  the  grant 
 would  promote  the  public  interest,  convenience  and  necessity.  Here,  the  public  interest  rationale  is  at  least  as  compelling  as  in  Mtel.  In  this  case,  requiring  a  payment  allows  us  to  address  the  interference  problems 
 in  the  800  MHz  band  and  provide  public  safety  agencies  with  additional  spectrum  rights  in  a  way  that  places  Nextel  in  a  comparable  position  to  that  which  it  now  occupies.  While  addressing  public  safety 
 concerns  is  a  priority  of  the  highest  order,  it  is  in  the  public  interest  to  do  so  in  a  way  that  does  not  result  in  a  windfall  for  Nextel.  The  anti-  windfall  payment  addresses  uncertainty  about  the  exact  amount  of 
 relocation  costs  for  the  800  MHz  band  and  the  1.9  GHz  band.  The  plan  obliges  Nextel  to  pay  the  costs  in  the  800  MHz  band  and  its  share  of  the  costs  in  the  1.9  GHz  band,  no  matter  how  low  or  high  they  are.  For 
 example,  if  the  costs  are  at  the  low  end  of  Nextels  estimates,  245  we  find  that  it  is  in  the  public  interest  that  the  savings  benefit  the  public,  rather  than  Nextel.  And  similar  to  the  Mtel  case,  the  windfall  payment  also 
 addresses  concerns  that  assigning  Nextel  spectrum  rights  in  another  band  as  part  of  this  comprehensive  solution  is  unfair  because  Nextel  is  receiving  free  spectrum  while  its  competitors  must  bid  for  spectrum  at 
 auction.  246  For  the  reasons  discussed  elsewhere  in  this  Report  and  Order,  reducing  the  amount  of  1.9  GHz  spectrum  granted  to  Nextel  is  not  a  reasonable  way  of  protecting  against  such  a  windfall.  247  By  contrast, 
 the  alternative  approach  of  requiring  a  payment  from  Nextel  to  maintain  an  exchange  commensurate  with  the  value  of  the  spectrum  it  is  receiving  furthers  the  public  interest  objectives  of  the  Communications  Act 
 and  is  consistent  with  the  policy  Congress  articulated  in  Section  309(  j)  of  recover[  ing]  for  the  public  of  a  portion  of  the  value  of  the  public  spectrum  resource  made  available  for  commercial  use  and  avoidance  of 


 242  Mtel  v.  FCC,  77  F.  3d  1399  (D.  C.  Cir.  1996). 
 243  Id.  at  1406. 
 244  Id. 
 245  See    299  infra. 
 246  See    214  infra. 
 247  See    236-  238  infra. 
49
 Federal  Communications  Commission  FCC  04-  168 
 50 
 unjust  enrichment  through  the  methods  employed  to  award  uses  of  that  resource.  248 
 77.  Some  parties  in  this  proceeding  have  addressed  the  intersection  of  the  Commissions  authority  under  the  Communications  Act  and  the  Commissions  responsibilities  under  other  federal  statutes.  In 


 particular,  we  received  several  ex  parte  presentations  249  addressing  the  question  of  whether  the  spectrum  management  plan  and  license  modifications  that  we  approve  above  violate  appropriations  statutes 
 including  the  Anti-  Deficiency  Act  (ADA),  250  the  Miscellaneous  Receipts  Act  (MRA)  251  and  18  U.  S.  C.    641.  252  The  Comptroller  General  has  agreed  at  the  request  of  a  U.  S.  Senator  to  review  the  appropriations 
 issues  that  parties  have  raised.  253 
 78.  In  light  of  the  substantial  importance  of  these  issues,  we  have  carefully  reviewed  the  arguments  raised  in  the  various  presentations  and  conducted  our  own,  independent  analysis  of  the  various 


 legal  constraints  under  which  the  Commission  operates.  After  this  deliberate  consideration,  we  have  determined  that  our  statutory  obligation  to  ensure  the  public  safety  through  our  administration  of  spectrum 
 justifies  this  order  even  in  the  face  of  the  opposition  of  certain  participants  in  this  proceeding.  Having  reviewed  these  parties  arguments,  we  conclude,  as  discussed  below,  that  appropriations  law  does  not  bar 
 the  course  we  pursue  in  this  order.  Indeed,  we  conclude  that  we  would  be  remiss  in  our  obligations  to  the  public  safety  community  and  indeed  to  the  public  at  large  if  we  did  not  adopt  the  plan  in  the  form 
 discussed  below.  254 
 79.  The  ADA  prohibits  any  officer  or  employee  of  the  United  States  Government  or  of  the  District  of  Columbia  government  from  involv[  ing]  either  government  in  a  contract  or  obligation  for  the 


 payment  of  money  before  an  appropriation  is  made  unless  authorized  by  law.  255  The  object  of  this  provision  is  to  prevent  executive  officers  from  involving  the  government  in  expenditures  or  liabilities 
 beyond  those  contemplated  and  authorized  by  the  lawmaking  power.  256  The  first  government-  wide  ADA 


 248  47  USC    309  (j)(  3)(  C).  Since  an  auction  of  1.9  GHz  licenses  is  incompatible  with  the  approach 
 adopted  herein  for  solving  the  800  MHz  band  interference  problems  that  compromise  the  public  safety,  we  have  fashioned  an  alternative  that  is  consistent  with  our  competitive  bidding  authority  and  otherwise  within  our  statutory 


 authority. 
 249  See  Letter,  dated  June  28,  2004,  from  William  Barr,  Verizon  to  Michael  Powell,  Chairman,  Federal 
 Communications  Commission  (Verizon  Wireless  June  28  Ex  Parte);  Letter  dated  June  29,  2004,  from  Walter  Dellinger  to  Michael  Powell,  Chairman,  Federal  Communications  Commission;  Letter,  dated  July  1,  2004,  from 


 Richard  Thornburgh  to  Michael  Powell,  Chairman,  Federal  Communications  Commission. 
 250  The  Anti-  Deficiency  Act,  31  U.  S.  C.    1341(  a)(  1)(  B). 


 251  The  Miscellaneous  Receipts  Act,  31  U.  S.  C.    3302(  b). 
 252  Section  641  of  Title  18  concerns  the  embezzlement  and  theft  of  public  money,  property  or  records  and 
 imposes  criminal  liability  on  whoever  .  .  .  without  authority,  sells,  conveys,  or  disposes  of  anything  of  value  of  the  United  States  or  of  any  department  or  agency  thereof.  Our  actions  today  are  authorized  and  clearly  do  not 


 implicate  this  provision. 
 253  See  Verizon  Wireless  June  28  Ex  Parte  at  6. 


 254  See    151-  158,  infra. 
 255  31  U.  S.  C.    1341(  a)(  1)(  B). 
 256  21  Atty.  Gen.  Op.  248  (1895). 
50
 Federal  Communications  Commission  FCC  04-  168 
 51 
 was  passed  in  1870.  257  The  MRA  provides  that  a  government  official  receiving  money  for  the  Government  from  any  source  shall  deposit  the  money  in  the  Treasury  as  soon  as  practicable  without 
 deduction  for  any  charge  or  claim.  258  Congress  passed  the  statute  in  1849  to  address  its  concern  that  some  executive  branch  officers,  such  as  customs  officers,  were  failing  to  deposit  all  the  money  they  collected  in 
 the  course  of  their  duties  into  the  treasury,  making  deductions  for  their  expenses  and  salaries  as  they  saw  fit.  259  Neither  of  these  statutes  has  ever  been  found  applicable  to  the  exercise  of  the  Commissions 
 spectrum  management  responsibilities. 
 80.  Opponents  who  have  raised  challenges  under  appropriations  law  have  essentially  claimed  that  we  are  selling  spectrum  to  Nextel  in  a  private  sale  and  using  the  proceeds  to  address  the  public  safety 


 interference  problems  in  the  800  MHz  band.  In  fact,  what  the  Commission  is  doing  is  proceeding,  under  its  broad  section  316  license  modification  authority,  to  restructure  the  800  MHz  band  in  order  to  serve 
 significant  public  interest  concerns.  In  doing  so,  we  set  forth  a  spectrum  management  plan  that  provides  additional  spectrum  for  public  safety  and  leaves  Nextel  and  the  other  licensees  in  a  comparable  position  to 
 where  they  were  before  the  band  restructuring.  Courts  have  repeatedly  upheld  our  authority  to  implement  a  new  spectrum  management  plan  by  modifying  licenses  when  it  is  in  the  public  interest  to  do  so  and  to 
 allocate  the  relocation  costs  associated  with  license  modifications  among  the  affected  licenses.  260  And,  as  noted  at    69  supra,  neither  the  Ashbacker  doctrine  nor  Section  309(  j)  poses  a  barrier  to  the 
 implementation  of  our  public  safety  rebanding  plan. 
 81.  The  appropriations  laws  do  not  limit  the  Commissions  power  to  accomplish  rebanding  for  public  safety  or  to  recognize  and  facilitate  Nextels  role  in  that  rebanding.  Critically,  radio  spectrum  is  not 


 appropriated  by  Congress  and  it  cannot  be  obligated,  expended,  or  deposited  in  the  Treasury  under  those  laws.  Radio  spectrum  is  a  public  resource  of  the  United  States  that  Congress  has  authorized  and  directed 
 the  Commission  to  manage  in  the  public  interest.  Indeed,  the  Commissions  most  basic  spectrum-management  power  is  to  assign  spectrum  to  achieve  public  interest  benefits  other  than  monetary  recovery. 
 Until  the  enactment  of  Section  309(  j)  in  Omnibus  Budget  Reconciliation  Act  of  1993,  261  the  Commission  never  obtained  cash  payments  for  spectrum.  Through  spectrum  allocation  and  license  assignments,  it 
 accomplished  public  interest  objectives  such  as  encouraging  the  provision  of  particular  types  of  service,  fostering  new  technologies,  or  promoting  services  for  underserved  customers.  262  Even  after  the 


 257  Act  of  July  12,  1870,  ch.  251,    7,  16  Stat.  251. 
 258  31  U.  S.  C.    3302(  b). 
 259  See  Scheduled  Airlines  Traffic  Offices,  Inc.  v.  Department  of  Defense,  87  F.  3d  1356,  1360  (1996). 
 260  See    64-  67  supra. 
 261  Pub.  L.  No.  103-  66,    6002,  107  Stat.  312,  387-  397. 
 262  See,  e.  g.,  Redevelopment  of  Spectrum  to  Encourage  Innovation  in  the  Use  of  New 
 Telecommunications  Technologies,  First  Report  and  Order  and  Third  Notice  of  Proposed  Rulemaking,  7  FCC  Rcd.  6886  (1993)  (reallocating  220  MHz  spectrum  for  emerging  technologies);  Amendment  of  Part  90  of  the 


 Commissions  Rules  to  Create  the  Emergency  Medical  Radio  Service,  Report  and  Order,  71  Rad.  Reg.  2d  1305  (1993)  (assigning  frequencies  to  improve  the  communications  capabilities  of  entities  providing  life  support 
 activities);  Basic  Exchange  Telecommunications  Radio  Service  Report  and  Order,  3  FCC  Rcd  214  (1988)  (establishing  a  rural  radio  service  designed  to  make  basic  telephone  service  more  accessible  to  household  and 
 businesses);  and  Educational  Television,  Report  and  Order,  39  FCC  846  (1963)  (establishing  Instructional  Television  Fixed  Service  (ITFS)  for  the  transmission  of  instructional  material  to  schools).  See  also  303(  g)  ([  T]  he 
 Commission    as  public  convenience,  interest,  or  necessity  requires  shall    [s]  tudy  new  uses  for  radio,  provide  for  experimental  uses  of  frequencies,  and  generally  encourage  the  larger  and  more  effective  uses  of  radio  in  the 
 public  interest.) 
51
 Federal  Communications  Commission  FCC  04-  168 
 52 
 Commission  was  given  auction  authority,  section  309(  j)(  7)  prohibits  the  Commission  from  basing  the  decision  whether  to  auction  spectrum  on  a  desire  for  federal  revenue.  263  Even  when  the  Commission  does 
 use  the  auction  mechanism,  moreover,  monetary  recovery  is  just  one  of  several  factors  the  Commission  must  consider  in  establishing  bidding  qualifications  and  license  conditions.  264 


 82.  Allocating  spectrum  to  establish  a  long-  term  solution  to  the  public  safety  interference  problem  and  support  the  associated  rebanding  is  a  valid  use  of  spectrum  in  the  public  interest.  As  already  noted,  the 
 Commission  is  required  under  Sections  1  and  303  of  the  Act  to  use  its  spectrum  assignment  powers  to  promote  public  safety.  And  as  discussed  at    63  supra,  the  Auction  Reform  Act  of  2002  specifically 
 identified  the  interference  problem  in  the  800  MHz  band  as  one  that  the  Commission  might  resolve  by  allocating  spectrum  from  outside  the  800  MHz  band. 


 83.  We  also  conclude  that  the  anti-  windfall  payment  from  Nextel  directly  to  the  United  States  Treasury  does  not  raise  appropriations  laws  issues.  As  discussed  in    76  supra,  the  D.  C.  Circuit  upheld 
 in  the  Mtel  case  the  Commissions  authority  to  require  payment  under  Section  4(  i)  to  ensure  the  achievement  of  the  Commissions  statutory  authority  to  grant  a  license  only  where  the  grant  would  serve 
 the  public  interest,  convenience  and  necessity  (citations  omitted).  Here,  the  anti-  windfall  payment  is  a  valid  regulatory  requirement  that  serves  the  public  interest  because  it  addresses  uncertainty  about  the  exact 
 amount  of  relocation  costs  for  the  800  MHz  and  1.9  GHz  bands  and  obligates  Nextel  to  pay  the  relocation  costs  in  the  800  MHz  band  and  its  share  of  the  costs  in  the  1.9  GHz  band.  If  the  relocation  costs  are  at  the 
 low  end  of  the  projected  range,  the  anti-  windfall  payment  would  ensure  that  the  savings  would  benefit  the  public,  rather  than  Nextel. 


 84.  Thus,  we  conclude  that  the  situation  here  differs  from  the  facts  in  a  1963  Comptroller  General  decision  on  which  Verizon  heavily  relies  in  opposing  the  plan  we  adopt  today.  In  the  1963  decision, 
 which  was  overruled  in  1972,  the  Comptroller  General  reviewed  an  arrangement  in  which  a  non-  profit  organization  raised  funds  to  finance  a  teacher  training  program  and  zoo  guidebook  by  installing  a  coin-operated 
 audio  tour  system  on  government  property;  the  Comptroller  General  concluded  that  the  arrangement  violated  both  the  ADA  and  the  MRA.  265  Specifically,  the  Comptroller  General  found  that 
 Congressional  authorization  was  needed  for  such  an  arrangement  because  the  applicable  public  contracts  statute  provided  that  the  use  of  government  property  by  outside  parties  shall  be  for  money  only.  266  Thus, 
 the  Comptroller  General  concluded  that  the  grant  of  the  concession  to  the  non-  profit  organization  would  be  permissible  only  for  a  solely  monetary  consideration;  if,  on  the  other  hand,  a  monetary  consideration  were 
 provided,  the  money  would  be  required  to  be  deposited  in  the  Treasury  and  would  not  be  available  for  the  proposed  uses  [for  teacher  training  and  a  zoo  guidebook]  unless  appropriated  therefore  by  the 
 Congress.  267  Here,  the  Commissions  action  does  not  involve  a  concession  or  privilege  subject  to  the  government  contracts  statute  in  the  zoo  case,  nor  does  it  involve  a  contract  or  other  obligation  for  the 
 payment  of  money  pursuant  to  the  ADA.  268  Furthermore,  even  if  the  ADA  were  otherwise  implicated,  Sections  1,  4(  i),  301,  303,  309(  j),  and  316  of  the  Communications  Act  provide  the  Commission  with  the 
 authority  necessary  to  adopt  the  public  safety  rebanding  plan.  Accordingly,  todays  spectrum  management 
 263  See  47  U.  S.  C.  309(  j)(  7). 


 264  See  47  U.  S.  C.  309(  j)(  3). 
 265  To  the  Secy,  Smithsonian  Inst.,  42  Comp.  Gen.  650  (1963),  overruled,  51  Comp.  Gen.  506  (1972). 
 266  Id.  at  652-  653  (citations  omitted). 
 267  Id.  at  653. 
 268  See  31  U.  S.  C.  1341. 
52
 Federal  Communications  Commission  FCC  04-  168 
 53 
 plan  is  authorized  by  law  under  the  ADA.  269 
 85.  With  respect  to  the  MRA,  the  Communications  Act  does  not  require  the  Commission  to  auction  the  1.9  GHz  spectrum.  Rather,  as  discussed  supra  at  note  237,  section  309(  j)(  6)(  E)  gives  the 


 Commission  broad  authority  to  create  or  avoid  mutual  exclusivity  in  licensing,  based  on  the  Commissions  assessment  of  the  public  interest.  The  MRA  does  not  nullify  the  discretion  that  Congress  gave  to  the 
 Commission  and  preserved  in  Section  309(  j).  270  Here,  the  principle  that  funds  received  for  the  government  should  be  deposited  in  the  Treasury  is  fully  satisfied,  because  any  cash  payment  that  may  be  required  to 
 protect  against  a  windfall  in  favor  of  Nextel  will  be  made  to  the  Treasury,  and  there  are  no  other  government  receipts. 


 86.  The  Commission  has  determined  that  the  public  interest  requires  the  dedication  of  new  spectrum  to  addressing  the  800  MHz  interference  problem,  and  the  1.9  GHz  spectrum  is  uniquely  suited  to 
 that  purpose.  Those  are  public  interest  judgments  for  the  Commission  to  make,  and  they  are  not  changed  by  the  possibility  of  a  greater  dollar  recovery  for  the  government  from  auctioning  the  1.9  GHz  spectrum. 
 Given  the  vital  public  safety  interest  served  by  this  Report  and  Order,  moreover,  we  believe  that  it  is  essential  to  act  promptly  in  this  matter.  Nonetheless,  we  recognize  that  parties  have  raised  novel  issues 
 regarding  appropriations  law  and  that  the  Comptroller  General  is  reviewing  those  issues.  Should  the  Comptroller  General  unambiguously  conclude  that  our  order  violates  the  appropriations  statutes,  we  will 
 address  either  on  our  own  motion  or  on  that  of  moving  parties  whether  it  is  appropriate  to  stay  the  effect  of  some  aspects  of  todays  order  pending  a  final  decision  by  the  court  of  appeals  on  any  application 
 for  review. 
 87.  Furthermore,  we  will  ensure  that  the  public  is  protected  against  potential  claims  by  Nextel  relating  to  any  800  MHz  reconfiguration  costs  that  it  chooses  to  incur.  Specifically,  as  a  condition 


 precedent  to  commencing  operations  with  the  1.9  GHz  band  pursuant  to  any  of  its  licenses  modified  pursuant  to  this  Report  and  Order,  Nextel  shall  file  with  the  Commission  an  acknowledgement  acceptable 
 to  the  Commission.  The  acknowledgement  shall  state  that,  by  accepting  the  license  modification  under  the  terms  of  the  Order,  Nextel  acknowledges  that  it  has  studied  the  law  and  the  facts  and  has  made  its  own 
 estimate  of  the  risks  that  implementation  of  the  Order  may  be  delayed  by  judicial  review  and  the  Order  may,  in  fact,  be  declared  invalid.  Nextel  shall  further  acknowledge  that  the  Commission  has  not 
 participated  in  its  assessment  and  is  not  privy  to  it,  and  does  not  in  any  way  warrant  any  of  the  premises  upon  which  Nextel's  assessment  may  be  based.  Nextel  shall  acknowledge  that  it  has  accepted  the  risk  of 
 delay  and  invalidity  and  that,  therefore,  it  cannot  recover  its  costs  or  any  damages  associated  with  implementation  or  non-  implementation  of  the  Order  from  the  Commission  or  any  governmental  entity. 


 269  See  PLC  Construction  Services,  Inc.  v.  United  States  96  Fed.  Appx.  672  (April  7,  2004)  (U.  S.  Bureau 
 of  Reclamation  did  not  violate  ADA  even  though  contract  obligated  Bureau  to  pay  more  than  $33  million  for  construction  project  before  Congress  appropriated  the  funds  because  Bureau  was  separately  authorized  to  enter  into 


 contracts  under  other  provisions  providing  for  the  reclamation  and  irrigation  of  lands  by  the  federal  government);  cf.  Association  of  Civilian  Technicians  v.  Federal  Labor  Relations  Authority,  269  F.  3d  1112  (D.  C.  Cir.  2001) 
 (court  vacated  finding  by  Federal  Labor  Relations  Authority  that  collective  bargaining  agreement  that  would  reimburse  employees  for  out-  of-  pocket  losses  resulting  from  agency  cancellation  of  previously  approved  leave 
 would  violate  the  Anti-  Deficiency  Act  and  remanded  the  decision  for  the  Authority  to  consider  whether  the  disputed  provisions  are  authorized  by  the  collective  bargaining  law). 


 270  Cf.  Brazos  v.  U.  S.,  49  Fed.  Cl.  398,  411  (Fed.  Cl.  2001)  (pre-  existing  contracts    not  the  MRA   
 govern  whether  the  Rural  Utilities  Service  (RUS)  should  assess  a  $16.5  million  penalty  against  an  electric  utility  for  prepayment  of  a  promissory  note;  the  MRA  merely  required  the  RUS  to  deposit  prepayment  funds  with 


 Treasury  once  they  were  received). 
53
 Federal  Communications  Commission  FCC  04-  168 
 55 
 interference  and  OOBE  interference  is  approximately  equal.  274  This  disparity  in  opinion  may  be  due  to  the  difficulty  of  identifying  the  exact  interference  mode  under  field  conditions  with  limited  measurement 
 apparatus  and  the  fact  that  interfering  channels  may  or  may  not  be  simultaneously  active  at  a  given  time.  275 


 90.  OOBE  Interference.  No  radio  transmitter  can  confine  its  emissions  to  an  assigned  channel;  some  signals  invariably  spill  over  into  adjacent  spectrum,  i.  e.,  all  transmitters  create  some  degree  of 
 OOBE.  The  Commissions  rules  specify  the  maximum  permissible  OOBE  of  single  ESMR  and  cellular  transmitters.  However,  there  is  no  Commission  rule  governing  the  maximum  OOBE  that  a  multiple-channel 
 cell  can  radiate.  Moreover,  cell  OOBE  increases  cumulatively  as  a  function  of  the  number  of  channels  active  in  a  given  cell  or  in  nearby  cells,  e.  g.,  a  public  safety  receiver  could  receive  cumulative 
 OOBE  from  an  ESMR  cell  and  a  nearby  cellular  cell.  Filters  on  ESMR  and  cellular  transmitters  are  effective  in  reducing  OOBE.  However,  as  with  all  such  filters,  they  are  less  effective  on  frequencies  close 
 to  the  transmitter  frequency;  e.  g.,  a  filter  may  not  be  as  effective  in  significantly  reducing  OOBE  interference  to  a  public  safety  receiver  attempting  to  receive  a  signal  on  a  channel  immediately  adjacent  to 
 the  channel  being  used  by  a  nearby  ESMR  or  cellular  cell. 
 91.  Intermodulation  Interference.  This  kind  of  interference  occurs  in  800  MHz  receivers  when  signals  in  use  at  a  given  cell  or  a  nearby  cell  have  a  given,  readily  calculable,  mathematical 


 relationship  276  and  are  strong  in  an  area  in  which  a  public  safety  mobile  or  portable  unit  is  attempting  to  communicate.  277  When  strong  signals  with  the  appropriate  mathematical  relationship  are  presented  to  the 
 public  safety  receiver,  they  cause  the  active  elements  in  the  first  stages  of  the  receiver  to  operate  in  a  non-linear  manner.  278  The  incoming  undesired  signals  mix  in  the  receiver  and  produce  a  third  frequency  an 
 intermodulation  product  which  can  either  correspond  or  fall  near  the  frequency  on  which  the  user  of  the  radio  is  attempting  to  communicate.  279  If  the  resultant  new  signal  generated  in  the  first  stages  of  the 
 receiver  is  sufficiently  strong,  it  can  effectively  block  the  incoming  signal,  rendering  the  radio  unusable  at 


 274  See,  e.  g.,  New  York  State  Comments  at  7,  9  (adjacent  channel  interference  is  primary  cause);  Fort 
 Lauderdale  Comments  at  5  (signal  overload  is  the  primary  problem);  Motorola  Comments  at  18  (5  th  order  intermodulation  interference  is  the  most  common  type  of  interference). 


 275  Recently,  Motorola  recommended  a  measurement  technique  that  allows  a  more  refined  analysis  of  the 
 source  of  interference.  However,  even  with  use  of  this  technique,  Motorolas  own  field  tests  showed  that  it  was  not  always  possible  to  characterize  interference.  See  Motorola  June  20  Ex  Parte  at  8. 


 276  Intermodulation  products  are  categorized  according  to  order  and  can  result  from  the  interaction  of 
 two  or  more  frequencies.  Thus,  in  the  case  of  two-  frequency  (F1  and  F2),  third-  order,  intermodulation,  the  intermodulation  products  (P)  within  the  800  MHz  band  are  calculated  by:  Pintermod.  =  2*  F1-  F2  and  Pintermod.  =  2*  F2 


 -  F1.  The  fifth  order,  two  frequency  intermodulation  products  within  the  800  MHz  band  are  calculated  by:  Pintermod.  =  3*  F1  -  2*  F2  and  Pintermod.  =  3*  F2  -  2  *F1.  Intermodulation  products  can  also  be  generated  by  interaction  of  three 
 or  more  transmitters,  for  example,  some  third-  order,  three  frequency  (F1,  F2  and  F3)  intermodulation  products  falling  in  the  800  MHz  band  can  be  calculated  by  Pintermod.  =  F1+  F2  -  F3  and  Pintermod.  =  F2-  F1+  F3.  In  general, 
 within  the  800  MHz  band,  fifth  order  and  higher  intermodulation  products  are  less  significant  than  third-  order  products.  The  greater  the  number  of  frequencies  involved,  the  greater  the  number  of  intermodulation  products 
 generated. 
 277  See  Nextel  Comments  at  19. 


 278  Id.  The  first  stage  of  a  receiver  is  usually  an  amplifier.  See  also  Best  Practices  Guide  at  9. 
 279  See  Nextel  Comments  at  19. 
55
 Federal  Communications  Commission  FCC  04-  168 
 56 
 that  location.  280  The  concept  of  mixing  occurring  in  non-  linear  devices  is  sometimes  analogized  to  color  mixture.  Thus,  if  a  receiver  were  presented  with  a  strong  blue  ESMR  signal  and  a  strong  yellow 
 cellular  signal,  the  two  colors  could  mix  in  the  first  stage  of  the  receiver  and  form  an  interfering  green  signal  that  fell  on  a  public  safety  frequency.  The  mixing  concept  is  important  to  the  understanding  of 
 intermodulation  interference  because  it  explains  how  two  or  more  signals,  widely  separated  (in  frequency)  from  a  public  safety  channel  can  still  generate  interference.  It  is  significant  here,  because  locating  public 
 safety  channels  in  the  lower  portion  of  the  band  as  far  as  possible  from  the  ESMR  and  cellular  channels  would  provide  significant  relief  from  interference  on  the  public  safety  channels.  However,  it 
 still  leaves  open  the  possibility  that  ESMR  and  cellular  channels,  separated  from  public  safety  channels  by  as  much  as  ten  megahertz,  could  mix  in  the  first  stage  of  the  public  safety  radio  and  form  an 
 intermodulation  product  that  could  fall  within  the  channel  the  public  safety  radio  is  tuned  to.  Under  this  scenario,  if  the  two  ESMR  and  cellular  signals  are  strong  enough,  and  the  radio  does  not  have  good 
 intermodulation  rejection  capability,  interference  could  still  result. 
 2.  Entitlement  to  Interference  Protection 
 92.  In  order  to  implement  technical  and  procedural  rules  for  interference  abatement,  we  must  first  determine  the  criteria  by  which  licensees  will  be  entitled  to  interference  protection.  At  the  core  of  this 


 determination  is  how  to  define  exactly  what  constitutes  unacceptable  interference  to  public  safety  and  other  non-  cellular  800  MHz  systems.  With  an  objective  standard  for  unacceptable  interference  established, 
 all  800  MHz  licensees  would  have  certainty  regarding  their  respective  rights  and  obligations.  As  a  result,  licensees  will  be  able  to  readily  identify  in  what  circumstances  they  can  reasonably  expect  to  operate  free 
 from  unacceptable  interference.  We  emphasize,  however,  that  our  determination  on  what  constitutes  unacceptable  interference  applies  solely  to  this  proceeding. 


 a.  Introduction 
 93.  Historically,  the  Commission  has  imposed  limits  on  the  area  in  which  land  mobile  communications  systems  with  given  characteristics  effective  radiated  power  (ERP),  frequency,  antenna 


 height,  geographical  separation,  etc.  can  expect  substantially  interference-  free  operation  from  other  systems.  For  instance,  in  some  bands,  our  Rules  define  these  areas  geographically,  e.  g.,  a  public  safety 
 system  in  certain  bands  can  expect  interference  protection  because  our  Rules  prohibit  co-  channel  stations  within  seventy-  miles  of  the  protected  station.  281  In  other  bands,  public  safety  has  a  protected  contour" 
 that  defines  the  area  in  which  interference  protection  from  other  co-  channel  or  adjacent  channel  systems  can  be  expected,  e.  g.  a  37  dBV/  m  contour  (VHF)  or  a  39  dBV/  m  contour  (UHF).  282  Under  either 
 protection  scheme  distance  separation  or  protected  contours  the  signal  level  at  which  the  public  safety 


 280  See  Island  SMR  Comments,  Exhibit  A  at  10.  However,  receiver  components  are  not  the  only  source  of 
 intermodulation  products.  A  junction  of  dissimilar  metals,  when  presented  with  strong  signals,  can  generate  intermodulation  products.  For  example,  some  parties  have  identified  corroded  bolts  on  base  station  towers  as  a 


 source  of  intermodulation  products.  If  a  base  station  combiner  allows  signals  from  the  final  amplifier  of  one  transmitter  to  enter  the  final  amplifier  of  another  transmitter,  the  two  signals  can  mix,  due  to  non-  linearities  in  the 
 final  amplifiers,  and  the  resultant  intermodulation  product  is  radiated  from  the  cell  antenna.  See  ex  parte  communication,  dated  May  27,  2003,  from  RACOM,  Inc.  and  I.  E.  Communications  to  Michael  J.  Wilhelm,  Esq., 
 Federal  Communications  Commission.  It  also  has  been  suggested  that  ferrite  used  in  base  station  isolators  has  nonlinear  properties  that  support  generation  of  intermodulation  products.  See,  e.  g.,  Motorola  June  20  Ex  Parte  at  1. 


 281  See  47  C.  F.  R.    90.621(  b). 
 282  See  47  C.  F.  R.    90.187(  b)(  2)(  iii). 
56
 Federal  Communications  Commission  FCC  04-  168 
 57 
 system  no  longer  can  expect  interference  protection  is  well  above  the  typical  receiver  noise  floor.  283 
 94.  Consequently,  when  frequencies  are  assigned  based  on  distance  separations  or  protected  contours,  the  area  in  which  a  licensee  may  operate  is  limited  by  the  potential  of  interference  from  nearby 


 systems,  e.  g.  the  potential  for  interference  defines  the  area  within  which  a  public  safety  signal  is  intelligible,  not  merely  by  the  strength  of  the  public  safety  signal  above  the  receiver  noise  floor.  Given 
 this  fact,  we  believe  that  it  would  be  inappropriate,  as  a  matter  of  responsible  spectrum  management,  to  afford  public  safety  systems  the  noise-  limited  coverage  that  some  proponents  have  recommended.  284  For 
 example,  were  we  to  do  so  for  a  given  public  safety  system  in  the  800  MHz  band,  it  would  not  only  restrict  the  availability  of  public  safety  spectrum  in  adjoining  areas  but  also  would  make  it  virtually  impossible  for 
 CMRS  systems  to  use  channels  that  contributed  the  slightest  amount  of  noise  to  a  public  safety  receiver  in  the  far  fringes  of  its  noise-  limited  coverage  area.  Such  an  outcome  would  result  in  inefficient  utilization  of 
 CMRS  spectrum.  Moreover,  the  substantial  set  of  measures  we  are  adopting  here  will  provide  public  safety  systems  with  strong  protections  against  interference,  rendering  this  particular  measure  unnecessary. 


 95.  We  also  conclude  we  should  adopt  an  interference  protection  standard  in  the  800  MHz  band  based  on  measured,  rather  than  predicted  signal  strength.  While  one  approach  would  be  to  define  the 
 coverage  area  of  public  safety  system  by  a  predicted  signal  contour,  signal  level  prediction  is  an  inexact  science  and  800  MHz  radio  signal  propagation  can  be  affected  by  multiple  factors  such  as  buildings  and 
 other  obstructions,  reflection  of  signals  from  nearby  man-  made  surfaces,  terrain,  and  foliage.  Moreover,  system  designers  frequently  predict  signal  strengths  in  terms  of  statistical  probability,  e.  g.,  the  charts  and 
 algorithms  used  for  coverage  determinations  predict  the  distance  from  a  transmitter  at  which  a  given  level  of  signal  will  be  equaled  or  exceeded  at  fifty  percent  of  the  locations  fifty  percent  of  the  time.  285  Thus, 
 while  signal  strength  predictions  are  useful  for  obtaining  an  overall  picture  of  system  coverage,  we  believe  they  are  of  limited  utility  in  predicting  the  strength  of  an  800  MHz  public  safety  signal  in  a  localized  and 
 relatively  small  area,  which  is  exactly  the  type  of  area  in  which  interference  may  be  encountered  from  an  ESMR  or  cellular  system.  Consequently,  we  conclude  that  we  need  to  use  a  basis  other  than  distance 
 separations  or  predicted  signal  contours  in  establishing  the  threshold  determination  of  entitlement  to  interference  protection. 


 b.  Interference  Protection  Standard 
 96.  In  their  August  7,  2003  ex  parte  filing,  the  Consensus  Parties  proposed  a  bright-  line  test  for  determining  non-  cellular  800  MHz  licensees  entitlement  to  interference  protection.  286  The  recommended 


 test  procedure  relies  on  measured  rather  then  predicted  minimum  median  signal  strength  levels,  which,  if  met  or  exceeded,  would  entitle  a  licensee  to  interference  protection.  287  Moreover,  the  proposal 


 283  The  noise  floor  is  the  cumulative  value  of  noise  generated  internally  in  the  receiver  and 
 environmental  noise,  such  as  that  created  by  automobile  ignition  systems,  high  voltage  electrical  transmission  lines  and  a  host  of  other  incidental  radiators.  See  47  C.  F.  R.    15.3. 


 284  Some  commenting  parties  suggested  the  Commission  adopt  a  zero  tolerance  policy  whereby  any 
 radio  system  interfering  with  a  public  safety  signal  in  the  800  MHz  band  would  immediately  have  to  cease  operation  until  interference-  free  operation  of  the  public  safety  system  was  assured.  See  City  of  New  York 


 Comments  at  5;  IACP  Comments  at  4;  City  of  New  York  Comments  to  Supplemental  Comments  of  the  Consensus  Parties  at  8. 


 285  See,  e.  g.,  47  C.  F.  R.    73.699,  Figures  9,  10  and  10b. 
 286  Consensus  Parties  Aug.  7  Ex  Parte  at  45-  50  and  Appendix  F  at  2,    1.2. 
 287  Id.  Appendix  F  at  3,    2.1.1. 
57
 Federal  Communications  Commission  FCC  04-  168 
 58 
 contemplated  providing  full  interference  protection  only  to  non-  cellular  800  MHz  systems  that  use  receivers  meeting  minimum  performance  standards.  288 
 97.  The  proposal  defines  interference  in  terms  of  a  parameter  known  as  the  carrier  289  to  interference  plus  noise  ratio  [C/(  I+  N)]  of  a  receiver.  The  proposal  recommended  20  dB  as  the  minimum 
 acceptable  C/(  I+  N)  ratio  for  voice  systems;  290  and  suggested  that  the  equipment  manufacturer  supply  the  information  value  for  non-  voice  public  safety  communications  systems.  291 


 98.  The  Consensus  Parties  proposal  requires  that  a  public  safety  or  other  non-  cellular  radio  in  the  band  segment  be  presented  with  a  signal  from  the  desired  station  that  is  greater  than  or  equal  to  a  specified 
 minimum  before  the  licensee  of  the  desired  station  may  claim  entitlement  to  interference  abatement.  292  As  proposed  in  their  filing,  the  threshold  desired  signal  power  in  the  case  of  portable  units  in  the  806-  816 
 MHz/  851-  861  MHz  band  segment  is  101  dBm,  or  greater,  as  measured  at  the  radio  frequency  (R.  F.)  input  to  the  portable  radios  receiver.  293  The  corresponding  value  for  mobile  units  is  104  dBm  or  greater.  294  A 
 specific  measurement  technique  was  proposed  for  determination  of  the  threshold  signal  powers.  295 
 99.  The  Consensus  Parties  proposed  that  full  interference  protection  would  be  provided  only  for  systems  using  receivers  that  satisfy  TIA  Class  A  specifications.  296  Receivers  not  conforming  to  these 


 288  Id.  Appendix  F  at  8,    4.1.1a. 
 289  Carrier  in  the  sense  used  here,  equates  with  desired  signal;  i.  e.  the  signal  from  the  public  safety, 
 CII  or  other  non-  cellular  base  station. 
 290  Consensus  Parties  Aug.  7  Ex  Parte  Appendix  F  at  2,    1.2.1. 


 291  Id.  Appendix  F  at  2,    1.2.2. 
 292  The  median  received  power  level  for  interference  protection  in  the  Guard  Band  at  816-  817/  861-  862 
 MHz  that  Nextel  later  proposed  to  be  designated  for  non-  ESMR  operations  increases  as  a  function  of  frequency.  See    157-  158  &  Figure  1  infra. 


 293  Consensus  Parties  Aug.  7  Ex  Parte  Appendix  F  at  3,    2.1.1a.  This  level  is  the  power  in  decibels 
 above  one-  milliwatt  at  the  R.  F.  input  terminals  of  a  receiver.  The  Consensus  Parties  originally  proposed  a  measured  desired  signal  power  of  -98  dBm,  but  lowered  these  values  in  response  to  parties  who  expressed  concern  that  this 


 level  was  too  stringent  and  that  the  resultant  area  of  interference  free  operation  would  be  smaller  than  the  area  in  which  many  public  safety  systems  expect  reliable  coverage.  See  Comments  of  Motorola  to  Supplemental 
 Comments  of  the  Consensus  Parties  at  11;  Comments  of  NY  OIT  to  Supplemental  Comments  of  the  Consensus  Parties  at  12-  14;  Comments  of  San  Diego  to  Supplemental  Comments  of  the  Consensus  Parties  at  7;  Comments  of 
 Xcel  to  Supplemental  Comments  of  the  Consensus  Parties  at  6-  7;  Comments  of  Con-  Ed  to  Supplemental  Comments  of  the  Consensus  Parties  at  6;  Comments  of  Entergy  Reply  to  Supplemental  Comments  of  the 
 Consensus  Parties  at  7-  8;  Reply  Comments  of  NY  OIT  to  Supplemental  Comments  of  the  Consensus  Parties  at  9-  10;  Reply  Comments  of  San  Diego  to  Supplemental  Comments  of  the  Consensus  Parties  at  7-  8;  Reply  Comments 
 of  Xcel  to  Supplemental  Comments  of  the  Consensus  Parties  at  5-  6. 
 294  Id. 


 295  Id.,  Appendix  F  at  9-  10,    5.0.  The  Consensus  Parties  made  this  amendment  in  response  to  one 
 commenting  party  which  argued  that  the  Commission  should  not  set  a  minimum  received  power  level  for  interference  protection  unless  and  until  an  agreed-  upon  procedure  for  measuring  the  power  level  had  been 


 established.  See  Comments  of  New  York  OIT  to  Supplemental  Comments  of  the  Consensus  Parties  at  13;  Reply  Comments  of  NY  OIT  to  Supplemental  Comments  of  the  Consensus  Parties  at  10-  11. 


 296  See  Consensus  Parties  Aug  7  Ex  Parte,  Appendix  F  at  8,    4.1.1.  Class  A  receivers  are  those  intended  for 
 (continued.) 
58
 Federal  Communications  Commission  FCC  04-  168 
 59 
 specifications  would  be  protected  only  to  some  higher  desired  signal  threshold  power  level.  297  Several  parties  supported  the  Consensus  Parties  in  this  regard;  298  while  others  disagreed,  pointing  out  that  some  of 
 the  TIA  standard  parameters,  for  example,  operating  temperature  range  of  the  radio  are  irrelevant  to  800  MHz  interference  and  therefore  that  the  Commission  should  not  require  compliance  with  the  entire 
 standard  but,  instead,  should  simply  adopt  minimum  intermodulation  rejection  ratios  for  receivers.  299 
 100.  On  June  16,  2004,  Nextel  filed  a  revised  band  plan  for  the  816-  817  MHz/  861-  862  MHz  band  segment  proposing  that  this  additional  2  MHz  be  designated  for  non-  ESMR  use  rather  than  for 


 ESMR,  as  had  been  proposed  in  the  August  2003  ex  parte  filing.  In  that  band  plan,  Nextel  proposes  that  the  minimum  received  signal  power  threshold  necessary  for  interference  protection  in  the  816-  817 
 MHz/  861-  862  MHz  band  segment  increase  as  a  function  of  increasing  frequency.  300 
 101.  As  discussed  in  greater  detail  below,  we  conclude,  based  on  the  record  in  this  proceeding,  that  a  readily  identifiable  objective  standard  should  be  established  to  determine  what  constitutes 


 unacceptable  interference,  and  which  systems  are  entitled  to  protection  from  such  interference.  301  We  also  believe  that  both  unacceptable  interference  and  the  scope  of  protection  afforded  to  eligible  systems  should 
 be  subject  to  objective  measurement  criteria.  In  this  connection,  we  note  that  almost  all  participants  in  this  proceeding  agree  that  the  status  quo  addressing  interference  to  public  safety  systems  on  an  ad  hoc  basis 
 and  reactive  fashion  is  no  longer  workable  in  the  800  MHz  band.  We  agree,  and  find  that  certain  interference  definition  and  measurement  procedures  contained  in  the  record  allow  us  to  establish  a 
 reasonable  standard  for  determining  when  public  safety  and  other  non-  cellular  systems  can  expect  to  operate  free  from  unacceptable  interference.  302  Specifically,  we  believe  that  the  operational  parameters 
 (Continued  from  previous  page)  an  urban  environment;  Class  B  receivers  are  suitable  only  for  rural  environments. 


 297  Id.  Appendix  F  at  8,    4.1.1b.  The  amount  of  the  increase  above  the  levels  described  above  would  be 
 determined  by  the  amount  of  desired  signal  power  necessary  to  restore  the  receiver  in  question  to  the  same  C/(  I+  N)  ratio  as  a  Class  A  receiver  in  the  same  environment.  We  note  that  Motorola  has  reported  that  approximately  93 


 percent  of  its  recent  portable  receiver  inventory  meets  Class  A  standards.  See  Motorola  November  3  Ex  Parte  at  5,  Table  3.  Motorola  further  reported  that  eighty-  five  percent  of  their  2003  year-  to-  date  shipments  of  mobile  radios 
 met  Class  A  standards.  Id.  The  most  significant  difference  between  the  two  classes  of  receivers  lies  in  their  intermodulation  rejection  performance.  Class  A  portable  receivers  must  have  at  least  a  70  dB  intermodulation 
 rejection  ratio  (Class  A  mobiles  must  achieve  at  least  75  dB  of  intermodulation  rejections);  Class  B  portable  receivers  must  have  at  least  a  50  dB  intermodulation  rejection  ratio  (Class  B  mobile  receivers  must  have  at  least  a 
 70  dB  intermodulation  rejection  ratio).  See  TIA/  EIA  -603-  A,  August  2001  at  124.  See  also  TIA/  EIA  TSB102.  CAAB,  August  1994,  at  6  and  7.  TIA  is  an  American  National  Standard  Institute-  accredited  standards 
 development  organization  and  provides  technical  expertise  to  the  telecommunications  industry  in  a  wide  range  of  areas,  including  system  performance,  interference  abatement,  compatibility  and  interoperability.  See 
 http://  www.  tiaonline.  org/  about/  overview.  cfm. 
 298  See  Comments  of  Alliant  to  Supplemental  Comments  of  the  Consensus  Parties  at  1;  Comments  of 
 Ameren  to  Supplemental  Comments  of  the  Consensus  Parties  at  14. 
 299  See  Ameren  Reply  Comments  at  4;  UTC  Reply  Comments  at  19;  Comments  of  Preferred  to  Consensus 
 Parties  Reply  Comments  at  11;  Comments  of  UTC  to  Supplemental  Comments  of  the  Consensus  Parties  at  15. 
 300  See    157-  158  and  Figure  1  infra. 


 301  See    105-  107  infra. 
 302  This  stems  from  the  questions  raised  in  the  NPRM  seeking  comment  on  whether  to  abate  interference 
 by  requiring  increased  public  safety  signals  or  by  reducing  CMRS  signals.  See  NPRM,  17  FCC  Rcd  at  4914    76-  77. 
59
 Federal  Communications  Commission  FCC  04-  168 
 60 
 and  system  characteristics  identified  by  the  Consensus  Parties  are  relevant  factors  in  establishing  such  a  standard.  However,  in  determining  the  final  values  we  drew  not  only  from  the  Consensus  Parties 
 proposal  but  also  from  proposals  submitted  by  equipment  manufacturers,  industry  associations,  800  MHz  licensees,  as  well  as  our  own  technical  expertise.  We  further  believe  that  adoption  of  the  unacceptable 
 interference  definition  and  associated  measurement  procedures  is  in  furtherance  of  our  goal  to  employ  sound  spectrum  management  principles  in  resolving  the  800  MHz  interference  problem.  In  addition,  we 
 rely,  in  part,  on  the  methodology  derived  by  the  Telecommunications  Industries  Association  TR-  8  Subcommittee.  303  Based  on  this  analysis,  we  believe  that  the  measures  we  adopt  here  will  meet  our  goal  of 
 ensuring  that  800  MHz  communications  critical  to  the  safety  of  life  and  property  will  not  be  impaired  by  unacceptable  interference. 


 102.  The  Consensus  Parties  recommended  that  the  proposed  procedures  for  defining  unacceptable  interference  and  establishing  licensees  entitlement  to  be  protected  against  such  interference 
 should  not  be  put  into  place  until  reconfiguration  of  the  800  MHz  band  had  been  completed.  We  disagree.  Indeed,  it  appears  to  us  that  establishing  an  interference  abatement  entitlement  standard  must  be  the  very 
 first  step  in  attacking  the  problem  of  unacceptable  interference  to  public  safety,  CII  and  other  non-  cellular  800  MHz  systems.  304  In  short,  we  cannot  afford  the  luxury  of  awaiting  completion  of  band 
 reconfiguration  and  putting  critical  public  safety  communications  at  continued  significant  risk  in  the  interim  before  we  determine  the  conditions  under  which  licensees  are  entitled  to  interference  protection. 
 Accordingly,  our  rules  for  interference  protection  entitlement  and  the  assignment  of  responsibility  for  the  abatement  of  unacceptable  interference  will  become  effective  sixty  days  after  publication  of  this  Report 
 and  Order  in  the  Federal  Register. 
 103.  We  are  persuaded  by  the  record  that  our  goals  in  this  proceeding  are  best  met  by  our  bright-  line  test  for  interference  protection  entitlement,  coupled  with  a  standardized  technical  means  of 


 determining  that  entitlement  and  assigning  the  task  of  abating  unacceptable  interference  to  the  parties  best  capable  of  doing  so.  This  approach  is,  we  believe,  far  preferable  for  all  concerned  to  our  attempting  to 
 micro  manage  the  technology  utilized  by  the  ESMR  and  cellular  industries.  Thus,  by  eschewing  imposition  of  across-  the-  board  new  technical  standards  on  the  industry,  we  avoid  imposing  that 
 unnecessary  expense  and  afford  the  ESMR  and  cellular  licensees  optimum  flexibility  to  design  and  operate  their  systems  in  a  manner  that  will  optimize  service  to  subscribers  and  avoid  unacceptable  interference  to 
 other  users  of  the  800  MHz  band.  Thus,  although  we  have  discussed  herein  the  technical  means  disclosed  in  the  record  to  avoid  unacceptable  interference  especially  those  that  come  within  the  definition  of 
 Enhanced  Best  Practices  we  reject  as  unnecessary,  the  recommendations  of  some  parties  for  mandatory  restrictions  on  all  ESMR  and  cellular  systems  with  respect  to  such  parameters  as  maximum  cell  ERP,  305 
 combiner  technology,  306  and  specific  antenna  pattern  characteristics.  307 


 303  See    108,  infra.  See  also  Consensus  Parties  Aug.  7  Ex  Parte  at  48.  The  TIA  TR-  8  subcommittee  is 
 responsible  for  mobile  and  personal  private  radio  standards.  See  http://  www.  tiaonline.  org. 
 304  See  Consensus  Parties  Aug.  7  Ex  Parte  at  Attachment  1. 


 305  See  Motient  Comments  at  4;  Cascade  Radio  Comments  at  2;  Supreme  Radio  Comments  at  7;  Florida 
 Comments  at  8;  Comments  of  Border  Area  Coalition  to  Supplemental  Comments  of  the  Consensus  Parties  at  12,  18;  Comments  of  Pinnacle  to  Supplemental  Comments  of  the  Consensus  Parties  at  9;  Comments  of  UTC  to 


 Supplemental  Comments  of  the  Consensus  Parties  at  15;  Reply  Comments  of  San  Diego  to  Supplemental  Comments  of  the  Consensus  Parties  at  7. 


 306  Alliant  Energy  Comments  at  1;  UTC  Comments  at  19;  Entergy  Reply  Comments  at  2;  Pinnacle  Reply 
 Comments  at  3-  4. 
60
 Federal  Communications  Commission  FCC  04-  168 
 62 
 received  signal  power.  313  However,  we  do  not  agree  with  parties  who  aver  that  their  systems  operate  satisfactorily  with  signal  strengths  at  or  below  -120  dBm  and  should  be  protected  to  that  low  level.  314  In 
 light  of  the  fact  that  the  reference  sensitivity  of  800  MHz  receivers  is  typically  on  the  order  of  -116  to  -119  dBm.  315  We  find  that  mandatory  protection  of  systems  to  a  level  below  -104  dBm  would  impose  an 
 excessive  burden  on  ESMR  and  cellular  telephone  carriers  to  protect  an  extremely  weak  signal.  We  note  that  such  signal  levels  are  so  weak  that  normal  statistical  variation,  especially  at  the  periphery  of  service 
 areas,  would  result  in  limited  service  reliability  even  in  the  absence  of  interference  or  high  levels  of  ambient  noise.  Nevertheless,  ESMR  and  cellular  telephone  licensees  must  respond  to  complaints  of 
 interference  even  at  these  low  signal  levels;  and,  when  possible,  voluntarily  assist  the  affected  licensee  if  to  do  so  does  not  cause  the  ESMR  or  cellular  telephone  licensee  undue  cost  or  capacity  limitations. 


 106.  In  sum,  to  provide  clarity  and  transparency  to  all  involved  parties,  we  specify  that  the  public  safety  or  other  800  MHz  non-  cellular  signal  will  be  entitled  to  protection  only  if  the  median  power 
 of  the  received  signal  is  greater  than  or  equal  to  -101  dBm  (portable)  or  -104  dBm  (mobile),  316  in  the  806-  816  MHz/  851-  861  MHz  band  segment.  In  the  band  segment  816-  817  MHz/  861-  862  MHz,  measured 
 median  signal  powers  for  interference  abatement  increases  as  a  function  of  frequency,  as  described  in  paragraphs  157-  158  and  Figure  1,  infra. 


 107.  In  defining  the  term  interference  within  the  specific  context  of  unacceptable  interference  as  defined  for  purposes  of  this  proceeding  only  and  as  used  herein,  we  examined  the  filings  in  the  record, 
 standard  technical  publications  and  manufacturers  specification  sheets.  Our  analysis  closely  tracks  that  of  the  Consensus  Parties  and  we  define  unacceptable  interference  as  any  impairment  to  the  desired  signal  that 
 causes  the  C/(  I+  N)  ratio  of  a  voice  radio  receiver  to  drop  below  20  dB.  However,  because  the  technical  parameters  necessary  for  acceptable  performance  by  non-  voice  systems  vary  significantly  by  system,  we 
 will  use  the  value(  s)  reasonably  designated  by  the  manufacturer  of  the  equipment.  317  We  recognize  that  a  manufacturer  specification  may  vary  from  manufacturer  to  manufacturer  and  could  well  change  over  time 
 as  particular  equipment  evolves.  318 


 313  See  Comments  of  San  Diego  to  Supplemental  Comments  of  the  Consensus  Parties  at  7;  Comments  of 
 Con-  Ed  to  Supplemental  Comments  of  the  Consensus  Parties  at  6-  7;  Reply  Comments  of  N.  Y.  OIT  to  Supplemental  Comments  of  the  Consensus  Parties  at  10;  Reply  Comments  of  San  Diego  Reply  to  Supplemental 


 Comments  of  the  Consensus  Parties  at  7. 
 314  See  Comments  of  Palomar  Comm.  to  Supplemental  Comments  of  the  Consensus  Parties  at  7-  8; 
 Comments  of  Consumers  Energy  to  Supplemental  Comments  of  the  Consensus  Parties  at  18;  Reply  Comments  of  Xcel  to  Supplemental  Comments  of  the  Consensus  Parties  at  5;  Peak  Relay,  February  6,  2004  ex  parte  filing. 


 315  See  TIA-  102.  CAAB-  A  September  2002,    3.1.4.  (minimum  reference  sensitivity  -116  dBm)  See  also 
 Typical  Performance  Specifications  for  Motorola  Astro  XTS  5000  transceiver.  http://  www.  motorola.  com/  cgiss/  docs/  xts5000_  service.  pdf  (reference  sensitivity  of  0.25  microvolts  =  -119  dBm). 


 316  Although  the  Consensus  Parties  filings  are  not  clear  on  the  subject,  we  assume  the  threshold  to  be 
 used  (-  101  or  -104  dBm)  will  be  determined  by  the  kind  of  radio  that  was  in  use  when  interference  was  encountered.  Thus,  if  the  interference  complaint  originated  from  a  party  using  a  hand-  held  portable  radio,  the  -101 


 dBm  criterion  would  apply.  However,  if  the  party  encountering  interference  was  using  a  mobile  unit,  the  -104  dBm  criterion  would  apply. 


 317  See  Consensus  Parties  Aug  7  Ex  Parte,  Appendix  F  at  2,    1.2.2. 
 318  We  note  that  manufacturers  of  non-  voice  equipment  generally  rely  on  bit  error  rate  (BER)  to  specify 
 acceptable  system  performance,  rather  than  the  C/(  I+  N)  ratio  used  for  voice  systems.  We  therefore  expect  that  most  manufacturers  will  specify  a  BER  for  non-  voice  systems. 
62
 Federal  Communications  Commission  FCC  04-  168 
 63 
 (ii)  Signal  Measurement  Techniques 
 108.  As  an  initial  matter,  all  parties  involved  in  a  determination  of  unacceptable  interference  are  free  to  agree  among  themselves  on  how  interference  protection  threshold  levels  are  to  be  measured. 


 For  example,  in  many  cases,  it  may  be  possible  to  measure  the  desired  signal  directly  because  it  is  not  masked  by  noise  or  interference  to  the  degree  that  direct  measurement  is  unreliable.  In  other  instances,  it 
 may  be  possible  to  conduct  a  direct  measurement  reliably  if  nearby  ESMR  or  cellular  telephone  transmitters  are  turned  off  briefly.  However,  whenever  it  is  not  possible  to  perform  reliable  measurements 
 of  desired  signal  received  power  directly;  or  in  the  event  there  are  disputes  between  or  among  the  parties  involved  in  an  interference  complaint,  the  following  protocol  for  indirect  measurement  of  the  desired 
 signal  power  may  be  used.  These  measurement  procedures  are  based  on  the  recommendations  of  the  Consensus  Parties  with  a  few  minor  changes.  319  Consistent  with  existing  practice,  the  Office  of 
 Engineering  and  Technology  is  hereby  delegated  authority  to  make  changes  to  this  protocol  as  needed.  320 
 (a)  Area  to  be  measured.  The  area  of  measurement  shall  be  no  less  than  91.44  meters  x  91.44  meters  (300  feet  x  300  feet).  Local  obstructions  may  determine  the  size,  as  well  as  how  large  the 


 reported  affected  area  is.  If  the  affected  area  is  quite  large,  a  location  of  reported  problems  shall  be  selected  that  is  large  enough  to  be  consistent  with  coverage  predictions  and  our  dBu  contour 
 limitations. 
 (b)  Data  collection.  A  measurement  route  shall  be  defined  through  the  area  to  be  measured  that  distributes  data  collection  points  relatively  uniformly  across  the  area  being  tested.  A  constant 
 velocity  along  the  route  shall  be  maintained  to  prevent  oversampling  in  any  given  location.  The  sampling  rate  shall  be  high  enough  to  ensure  multiple  samples  per  wavelength. 


 (c)  Use  of  filters.  A  lowpass  or  bandpass  filter  shall  be  inserted  between  the  test  receiver  and  its  antenna  to  allow  differentiation  between  receiver-  generated  IM  and  OOBE  noise  by  attenuating 
 potential  IM  contributors  from  the  CMRS  portion  of  the  band.  The  filters  loss  on  the  desired  frequency  shall  be  included  in  all  calibrations. 


 (d)  First  test  procedure.  With  all  potentially-  interfering  channels  and  the  desired  signal  transmitting  constantly,  gather  continuous  data  over  a  route  that  covers  the  measurement  area 
 defined  in  (a)  above,  using  the  data-  collection  requirements  in  (b)  above.  Use  this  data  to  determine  the  median  C+  I+  N.  Modulate  the  desired  channel  with  a  test  signal  to  verify  whether  or 
 not  the  target  receiver  unmutes.  For  digital  receivers  this  occurs  at  a  C/(  I+  N)  of  approximately  5  dB.  For  analog  radios  adjust  the  manual  squelch  setting  to  cause  the  receiver  to  unmute  at  a 
 C/(  I+  N)  of  5  dB. 
 (e)  First  test  threshold.  If  the  median  C+  I+  N  is  greater  than  or  equal  to  2  dB  above  the  median  target  value  and  the  receiver  was  unmuted,  then  the  first  threshold  test  is  passed  and  the  public 
 safety/  CII  system  is  eligible  for  interference  mitigation.  If  the  median  C+  I+  N  is  not  greater  than  or  equal  to  2  dB  above  the  median  target  value,  conduct  the  second  test  procedure  below  to  establish 
 eligibility  for  interference  mitigation. 


 319  See  Consensus  Parties  Aug  7  Ex  Parte,  at  Appendix  F,    5.0-  5.8. 
 320  Revision  of  Parts  2  and  15  of  the  Commission's  Rules  to  Permit  Unlicensed  National  Information 
 Infrastructure  (U-  NII)  devices  in  the  5  GHz  band,  FCC  03-  287,  ET  Docket  No.  03-  122    39  (released  Nov.  18,  2003). 
63
 Federal  Communications  Commission  FCC  04-  168 
 65 
 intermodulation  rejection,  adjacent  channel  selectivity,  and  receiver  sensitivity.  324 
 111.  In  setting  our  criteria  for  voice  receiver  performance,  we  were  mindful  of  the  comments  of  parties  which  observed  that  the  TIA  intermodulation  interference  testing  protocols  may  not  simulate  real-world 


 conditions.  325  Thus,  although  the  standards  specify  that  intermodulation  interference  rejection  should  be  tested  with  the  desired  signal  at  the  reference  sensitivity  of  the  receiver,  326  under  actual  operating 
 conditions  the  desired  signal  is  usually  considerably  above  the  reference  sensitivity  of  the  receiver.  Therefore,  we  recommend,  but  do  not  require,  that  TIA  and  other  standards-  setting  organizations  revisit 
 current  testing  procedures  in  light  of  the  interference  environment  in  which  800  MHz  receivers  must  currently  operate. 


 112.  We  note  that  Motorola  data  show  that  approximately  seventy-  four  percent  of  the  receivers  that  it  has  shipped  to  public  safety  agencies  over  the  past  decade  meet  Class  A  intermodulation  rejection 
 specifications  and  that  this  percentage  is  even  higher  for  receivers  shipped  in  2003.  327  Accordingly,  we  believe  that  public  safety  agencies  predominantly  already  employ  receivers  which  satisfy  the  criteria 
 above.  328  However,  we  are  not  restricting  entitlement  to  unacceptable  interference  protection  only  to  radios  that  meet  the  standards  described  supra.  We  recognize  that  some  users,  particularly  public  safety 
 agencies,  may  be  using  older  radios  that  do  not  conform  to  the  standards.  Accordingly,  we  are  specifying  that  800  MHz  licensees  asserting  an  entitlement  to  interference  protection,  but  which  employ  receivers  that 
 fail  to  satisfy  the  criteria  above  will  be  afforded  interference  protection  only  at  higher  power  levels  than  -104  dBm  (for  mobiles),  -101  dBm  for  portables.  329  For  example,  if  a  radio  meeting  the  above  criteria 
 provided  a  20  dB  C/(  I+  N)  ratio  when  presented  with  a  -104  dBm  signal,  but  a  non-  compliant  radio  delivered  only  a  15  dB  C/(  I+  N)  ratio  when  presented  with  a  -104  dBm  signal  in  the  same  environment, 
 then  the  interference  entitlement  for  the  licensee  using  the  non-  compliant  radio  will  be  based  on  receipt  of  a  -99  dBm  measured  signal  power  instead  of  -104  dBm.  The  net  result  would  be  that  the  licensee  with  the 
 non-  compliant  radio  would  have  less  interference  protection  because,  to  claim  entitlement  to  protection,  the  licensee  would  have  to  show  that,  in  the  area  in  which  interference  was  encountered,  the  licensees 
 system  would  have  to  provide  a  5  dB  higher  received  power  level,  i.  e.  -104  dBm    (-  99  dBm)  =  5  dB. 
 113.  Finally,  we  note  Motorolas  announcement  of  prototype  receivers  with  switchable  attenuators.  330  In  brief,  the  Motorola  prototype  senses  the  signal  strength  of  the  incoming  desired  signal 


 324  Based  in  part  on  an  absence  of  evidence  in  the  record  suggesting  there  are  issues  regarding  minimum 
 receiver  performance  criteria  for  non-  voice  equipment,  we  find  it  unnecessary  at  this  time  to  specify  any  such  criteria. 


 325  See  CTIA  Reply  Comments  at  9-  10;  Supplemental  Comments  of  the  Consensus  Parties,  Appendix  F  at 
 F-  7,  Item  4.1;  Comments  of  CTIA  to  Supplemental  Comments  of  the  Consensus  Parties  at  10;  Comment  of  Motorola  to  Supplemental  Comments  of  the  Consensus  Parties  at  20-  21. 


 326  See  TIA-  TSB102.  CAAA  at  2.1.9.2  and  TIA/  EIA-  603-  A  at  2.1.9.2. 
 327  See  Motorola  November  3  Ex  Parte  at  4-  5. 
 328  We  also  note  that,  in  some  important  respects,  there  is  no  difference  between  Class  A  and  B  receiver 
 specifications.  For  example,  the  recommended  delivered  audio  quality  (  DAQ)  for  both  is  3.4,  and  that  DAQ  requires  a  ratio  of  C/(  I+  N)  of  approximately  20  dB  for  analog  receivers  and  17.7  dB  for  digital  receivers.  See 


 Table  A-  1,  Annex  A  of  TSB-  88A. 
 329  See  Supplemental  Comments  of  the  Consensus  Parties,  Appendix  F  at  F-  8,    4.1.1b. 


 330  See  Motorola  May  6  Ex  Parte. 
65
 Federal  Communications  Commission  FCC  04-  168 
 66 
 and  determines  when  the  signal  is  sufficiently  strong  that  it  can  tolerate  a  given  amount  of  attenuation,  e.  g.  10  dB,  without  compromising  the  intelligibility  of  the  incoming  communication.  331  At  that  point, 
 attenuation  is  automatically  introduced  between  the  radios  antenna  and  the  first  active  device  in  the  input  chain  (the  R.  F.  preamplifier  or  low  noise  amplifier)  of  the  receiver.  332  With  the  signal  so  attenuated,  a 
 significant  improvement  is  realized  in  the  effective  intermodulation  rejection  ratio  of  the  receiver.  333  Although  the  information  submitted  to  date  is  encouraging,  it  is  inconclusive  as  to  the  degree  of  overall 
 interference  protection  the  use  of  such  receivers  would  provide  in  a  typical  system.  The  attenuator  circuitry  does  not  address  OOBE  interference  and  is  able  to  abate  intermodulation  interference  only  in 
 areas  in  which  the  desired  signal  is  strong  enough  to  activate  the  attenuator. 
 114.  Motorola  stated  that  it  could  incorporate  switchable  attenuators  in  new  products  without  a  significant  cost  penalty;  that  it  could  retrofit  switchable  attenuators  in  certain  of  its  earlier  radios;  and  that 


 the  attenuation  circuitry  is  not  proprietary.  334  However,  it  has  not  provided  diagrams  of  the  circuitry  and  no  other  manufacturer  has  come  forward  to  endorse  use  of  such  radios,  much  less  commit  to  producing 
 them.  Nonetheless,  we  believe  that  the  potential  for  improved  intermodulation  interference  rejection  through  use  of  switchable  attenuators  is  sufficiently  promising  that  we  will  continue  to  monitor 
 manufacturers  development  of  radios  with  improved  intermodulation  rejection  ratio  whether  by  use  of  switchable  attenuators  or  otherwise  and,  if  the  facts  so  indicate,  will  consider  reviewing  our  rules 
 governing  intermodulation  rejection  standards  for  800  MHz  public  safety  receivers.  We  note  the  statement  by  Motorola  that  more  interference  resistant  receivers  can  be  produced  at  little  or  no  additional  cost.  335 
 With  respect  to  these  receivers  and  other  800  MHz  public  safety  equipment,  we  strongly  encourage  the  industry  as  a  whole  not  to  seek  excessive  profits  when  offering  suitable  equipment  to  public  safety 
 agencies.  In  so  doing,  equipment  manufacturers  can  make  a  significant  contribution  to  providing  first  responders  with  the  affordable  communications  equipment  necessary  to  meet  their  Homeland  Security 
 obligations. 
 3.  Overall  Approach  to  Interference  Abatement 
 a.  Role  of  Enhanced  Best  Practices 
 115.  As  an  initial  matter,  we  recognize  that  some  unacceptable  interference  can  originate  from  multiple  sources,  e.  g.,  two  or  more  cells,  (ESMR,  cellular  telephone,  or  both)  each  contributing  to  OOBE 


 or  intermodulation  interference.  In  such  cases,  all  involved  ESMR  and/  or  cellular  telephone  licensees  are  jointly  and  severally  responsible  for  abating  the  interference,  no  matter  how  small  their  contribution  to  the 
 problem.  In  this  regard,  we  believe  that  adopting  rules  and  policies  expressly  imposing  such  responsibilities  on  such  licensees  operating  in  the  800  MHz  spectrum  is  consistent  with  the  mandate  in 
 Section  1  of  the  Act  to  enhance  the  safety  of  life  and  property.  336  In  addition,  we  emphasize  that  a  reactive 


 331  Id  at  5. 
 332  Id. 
 333  Id.  at  7,  Figure  1. 
 334  See  Letter,  dated  June  20,  2003,  from  Steve  B.  Sharkey,  Director,  Spectrum  and  Standards  Strategy, 
 Motorola,  Inc.  to  James  Schlichting,  Deputy  Chief,  Office  of  Engineering  and  Technology,  Federal  Communications  Commission  at  7-  8  (Motorola  June  20  Ex  Parte). 


 335  Id. 
 336  47  U.  S.  C    151.  See  also  4.9  GHz  Band  Transferred  from  Federal  Government  Use,  WT  Docket  No. 
 00-  32,  Memorandum  Opinion  and  Order  and  Third  Report  and  Order,  18  FCC  Rcd  9152  (2003)  (allocating  (continued.) 
66
 Federal  Communications  Commission  FCC  04-  168 
 67 
 approach  to  interference  abatement  is  per  se  undesirable  because  of  the  concomitant  adverse  impact  on  public  safety,  CII  and  other  800  MHz  communications.  Thus,  we  encourage  all  800  MHz  licensees,  in 
 designing  new  systems  or  modifying  existing  systems,  to  anticipate  and  avoid  potential  interference  before  it  occurs.  This  encouragement  extends  to  designers  of  non-  cellular  800  MHz  systems  as  well;  inasmuch  as 
 providing  a  more  robust  desired  signal  contributes  significantly  to  interference  abatement.  To  facilitate  system  designs  that  take  the  relevant  interference  environment  into  account,  we  are  adopting  rules  that 
 require  mutual  prior  notification,  on  request,  of  changes  or  additions  to  ESMR,  cellular  telephone,  public  safety  and  CII  800  MHz  systems;  337  and  are  encouraging  other  voluntary  and  cooperative  interference 
 abatement  solutions,  such  as  channel  swaps. 
 116.  As  noted  earlier,  the  majority  of  the  comments  in  this  proceeding  support  abating  harmful  interference  to  public  safety  systems  operating  in  the  800  MHz  band  by  one  of  two  methods:  relying 


 exclusively  on  Best  Practices  338  or  by  reconfiguring  the  800  MHz  band.  Following  publication  of  the  Best  Practices  Guide  in  2000,  and  throughout  this  proceeding,  the  Commission  has  given  careful  thought  to 
 whether  Enhanced  Best  Practices,  alone,  would  suffice  to  reduce  unacceptable  interference  to  the  extent  necessary  to  provide  reliable  800  MHz  public  safety  communications.  In  particular,  we  have  carefully 
 analyzed  the  filings  by  the  Balanced  Approach  parties  which  urge  adoption  of  a  rule  that  would  essentially  codify  many  of  the  Best  Practice  Guide  remedies  and  which  would  contain  additional  requirements 
 primarily  procedural  to  be  followed  when  interference  is  encountered.  339 
 117.  We  recognize  that  the  development  of  the  technical  measures  described  in  the  Best  Practices  Guide,  and  subsequent  related  documents  such  as  the  Motorola  Technical  Toolbox  represent  an 


 enormous  amount  of  work  and  an  almost  unprecedented  level  of  cooperation  within  the  800  MHz  user  community.  We  commend  both  the  effort  involved  in  developing  these  measures  and  the  cooperative 
 spirit  they  represent.  We  encourage  continued  research  into  interference  abatement  measures  so  that  Enhanced  Best  Practices  can  become  even  more  effective  as  a  tool  for  remedying  unacceptable 
 interference.  In  so  saying,  however,  we  note  that  the  voluntary  use  of  Best  Practices  to  date  has  abated  many,  but  by  no  means  all,  instances  of  interference  to  public  safety  communications. 


 118.  Voluntary  Best  Practices  have  often  proven  effective  in  abating  interference  on  a  case-  by-case  basis  and  will  continue  to  be  valuable  in  the  form  of  Enhanced  Best  Practices  even  after  band 
 reconfiguration.  Although  there  are  several  interference  abatement  strategies  subsumed  under  the  Enhanced  Best  Practices  rubric,  they  fall  into  three  basic  categories:  (1)  changing  the  technical  parameters 
 of  ESMR  and/  or  cellular  cell  sites;  (2)  improving  the  equipment,  including  portable  and  mobile  units,  of  the  licensee  encountering  interference;  and  (3)  establishing  interference  abatement  procedures  such  as, 
 prior  notification  of  cell  activation  or  modification.  Details  on  these  three  categories  of  Enhanced  Best  Practices  and  the  advantages  and  disadvantages  thereof  are  contained  in  Appendix  D  infra.  Enhanced  Best 


 (Continued  from  previous  page)  spectrum  for  public  safety  in  furtherance  of  Commission's  Section  1  obligation  to  promote  safety  of  life  and 
 property);  E911  Accuracy  Standards  Imposed  on  TIER  III  Carriers  for  Locating  Wireless  Subscribers  Under  Rule  Section  20.18(  H),  WT  Docket  No.  02-  377,  Order,  FCC  03-  297  (2003)  (denying  a  petition  for  forbearance  from 
 certain  E911  requirements  because  of  the  strong  connection  between  such  requirements  and  the  Commission's  obligation  to  promote  safety  of  life). 


 337  See    124-  127  infra. 
 338  Best  Practices  as  used  herein  refers  to  the  recommendations  for  voluntary  interference  abatement 
 contained  in  the  Best  Practices  Guide.  See  n.  40  supra. 
 339  See,  e.  g.,  Letter,  dated  May  29,  2003,  from  Jill  Lyon,  Esq.,  Vice  President  and  General  Counsel,  UTC 
 to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission. 
67
 Federal  Communications  Commission  FCC  04-  168 
 68 
 Practices  procedures  formalize  the  cooperative  efforts  that  some  ESMR  and  cellular  telephone  licensees  have  undertaken  to  promptly  identify  and  abate  unacceptable  interference.  In  furtherance  of  such  efforts 
 we  are  adopting  rules  today  that  require  800  MHz  licensees  to  share  technical  data  on  request;  340  and  that  set  specific  schedules  for  the  identification,  notification,  assessment  and  abatement  of  unacceptable 
 interference.  341 
 119.  We  note,  however,  that,  as  with  almost  any  engineering  solution,  there  are  technical  tradeoffs  associated  with  most  Enhanced  Best  Practices.  For  example,  abating  unacceptable  interference 


 using  Enhanced  Best  Practices  can  sometimes  be  done  only  at  the  expense  of  affecting  the  coverage  and  subscriber  capacity  of  ESMR  and  cellular  systems,  e.  g.,  Enhanced  Best  Practices  that  rely  on  restricting 
 ESMR  or  cellular  channel  use  or  making  significant  reductions  in  cell  ERP.  Proposals  advancing  the  use  of  Enhanced  Best  Practices  however  defined  as  the  sole  remedy  for  interference  abatement  have  a 
 significant  drawback  that  makes  them  problematic  as  a  long-  term  solution:  they  incur  high  transactional  costs  for  all  parties  and  would  have  to  continuously  be  applied  to  an  increasing  number  of  interference 
 incidents  that  are  inevitable  as  use  of  the  800  MHz  band  intensifies.  342  Several  parties  also  note  that  most  of  the  remedies  described  in  the  Best  Practices  Guide  are  fundamentally  reactive  because  interference  must 
 first  be  encountered  before  abatement  efforts  commence.  343  We  regard  this  as  another  serious  drawback.  It  would  be  scant  consolation  for  a  public  safety  officer  subjected  to  a  life-  threatening  communications 
 failure  to  know  that  he  or  she  could  report  the  problem  so  that  technical  fixes  could  eventually  be  applied  to  fix  it  or  not. 


 120.  The  record  supports  our  conclusions  about  the  high  transactional  costs  of  employing  case-by-  case  remedies  alone  to  abate  harmful  interference  to  public  safety  systems  in  the  800  MHz  band. 
 Nextel,  one  of  the  few  parties  that  submitted  comments  detailing  the  costs  of  implementing  Best  Practices  techniques,  asserts  that  it  employs  between  ten  to  fifteen  full-  time  employees  devoted  to  coordinating  the 
 companys  interference  abatement  measures  nationwide  and  employs  over  twenty  additional  technicians  to  resolve  each  interference  problem.  344  Nextel  further  asserts  that  it  spends  at  least  $10,000  investigating 
 and  temporarily  mitigating  interference  at  a  single  site  and  that  this  cost  can  increase  by  as  much  as  $25,000  if  additional  equipment  is  required.  345  Moreover,  according  to  Nextel,  implementing  these 
 measures  can  take  from  six  to  ten  weeks  with  no  guarantee  that  the  particular  technique  being  implemented  will  cure  the  interference  problem.  346  We  further  note  that  the  record  shows  that  it  is  not  only  CMRS 
 licensees  that  incur  interference  mitigation  costs.  For  example,  both  Anne  Arundel  County  and  Denver  state  that  they  have  spent  significant  amounts  of  money  and  employee  time  attempting  to  mitigate 


 340  See    124  infra. 
 341  See    132-  141  infra. 
 342  This  is  due  to  the  increased  use  of  this  band  by  public  safety  licensees  as  well  as  the  increased  use 
 necessitated  by  the  expanding  subscribership  of  ESMR  and  cellular  systems. 
 343  See  Comments  of  APCO  at  9-  10;  IACP  et.  al.  Comments  4-  5;  Nextel  Reply  Comments  at  58;  Reply 
 Comments  of  Consensus  Parties  to  Supplemental  Comments  of  Consensus  Parties  at  13. 
 344  See  Letter,  dated  December  19,  2003,  from  Regina  M.  Keeny,  Counsel  to  Nextel  to  Michael  J. 
 Wilhelm,  Esq.,  Federal  Communications  Commission  at  12. 
 345  Id.  at  10-  11. 


 346  Id.  at  10. 
68
 Federal  Communications  Commission  FCC  04-  168 
 69 
 interference  on  a  case-  by-  case  basis.  347 
 121.  Against  this  backdrop,  we  are  concerned  that  the  inevitable  increase  in  the  number  of  potential  and  actual  interference  situations  that  will  arise,  in  the  800  MHz  band,  as  currently  configured, 


 could  strain  the  effectiveness  of  the  mitigation  techniques  and  increase  their  cost,  possibly  rendering  interference  abatement  ineffective  and  unaffordable.  Thus,  while  we  do  not  question  the  short-  term 
 efficacy  of  Enhanced  Best  Practices,  we  conclude  that  licensees  in  the  800  MHz  band  would  be  better  served  by  a  long-  term  solution  that  minimizes  this  burden.  Indeed,  in  the  700  MHz  Guard  Band 
 proceeding,  the  Commission  recognized  early  on  the  necessity  of  spectrally  separating  incompatible  technologies  in  order  to  avoid  the  incidence  of  interference  to  non-  cellular  public  safety  from  cellular 
 operations.  348  In  drafting  up  its  700  MHz  band  plan,  the  Commission  essentially  recognized  the  significance  of  grouping  technically  compatible  public  safety  systems  in  close  spectrum  proximity  and  that 
 spectrally  separating  incompatible  systems  such  as  through  the  use  of  guard  bands  required  direct  regulatory  intervention.  The  Commission  further  adopted  a  package  of  technical  rules  and  interference 
 mitigation  procedures  to  ensure  that  Guard  Band  operations  would  not  cause  interference  to  adjacent  public  safety  operations.  The  Commissions  experience  in  700  MHz  provides  ample  evidence  that 
 combining  a  forward  looking  band  plan  with  a  customized  package  of  interference  avoidance  techniques  can  be  successful.  Further,  the  record  in  this  proceeding  supports  that  reconfiguration  of  the  800  MHz 
 band,  while  expensive  in  the  short-  term,  will,  over  time,  minimize  the  transaction  costs  incurred  by  800  MHz  licensees  by  reducing  reliance  on  Enhanced  Best  Practices.  349  Thus,  although  Enhanced  Best 
 Practices  must  remain  the  remedy  of  first  resort  until  band  reconfiguration  is  complete  and  will  remain  necessary  for  otherwise  intransigent  cases  of  unacceptable  interference,  their  high  transactional  cost 
 indicates  that  it  would  be  unwise  to  rely  on  Enhanced  Best  Practices  as  the  exclusive  remedy  for  interference  abatement  over  the  long  term. 


 122.  Again  we  emphasize  that  Enhanced  Best  Practices  remain  powerful  parts  of  the  interference  abatement  arsenal.  We  agree  with  the  Consensus  Parties  that  all  feasible  remedies  including 
 band  reconfiguration  and  Enhanced  Best  Practices  350  must  be  applied  to  the  problem  if  our  goal  is  to  be  reached.  Therefore,  we  expect  800  MHz  ESMR  and  cellular  telephone  licensees  will  continue  to  use 
 Enhanced  Best  Practices  to  abate  harmful  interference  until  the  completion  of  band  reconfiguration.  We  do  recognize  that  instances  of  residual  harmful  interference  will  crop  up  even  after  band  reconfiguration 
 but  are  confident  that  ESMR  and  cellular  licensees  can  apply  Enhanced  Best  Practices  to  resolve  these  cases.  But,  in  our  judgment,  in  the  final  analysis,  the  best  long  term  solution  requires  a  restructuring  of  the 
 800  MHz  band  to  substantially  reduce  the  need  for  case-  by-  case  interference  management. 
 123.  In  this  connection,  we  recognize  that  some  interference  incidents  may  not  be  effectively 


 347  Id.  at  12.  Denver  contends  that  it  has  spent  in  excess  of  $130,000  to  mitigate  interference  and  Anne 
 Arundel  County  estimates  these  costs  to  be  hundreds  of  thousands  of  dollars.  See  Letter,  dated  November  3,  2003  from  Alan  Tilles,  Esq.,  Counsel  to  the  City  and  County  of  Denver  to  John  Muleta,  Esq.,  Chief,  Wireless 


 Telecommunications  Bureau,  Federal  Communications  Commission.  See  also  Application  for  Review  in  WT  Docket  02-  100,  filed  August  6,  2003,  by  Anne  Arundel  County  at  6. 


 348  See    41  supra. 
 349  See  Letter,  dated  May  16,  2003,  from  Robert  Foosaner,  Senior  Vice  President  and  Chief  Regulatory 
 Officer  to  Nextel  Marlene  Dortch,  Secretary,  Federal  Communications  Commission  at  14-  15;  Sun  Fire  Group  Study  at  11-  13;  Denver  SOW  at  1-  2;  Letter,  dated  December  19,  2003,  from  Regina  M.  Keeny,  Counsel  to  Nextel 


 to  Michael  J.  Wilhelm,  Esq.,  Federal  Communications  Commission  at  10-  11. 
 350  See  Supplemental  Comments  of  the  Consensus  Parties  at  39. 
69
 Federal  Communications  Commission  FCC  04-  168 
 70 
 addressed  through  use  of  Enhanced  Best  Practices.  As  a  result  some  alternative  redress  may  be  needed  prior  to  the  completion  of  reconfiguration  of  the  800  MHz  band.  Given  that  channel  swapping  is 
 essentially  band  reconfiguration  on  a  micro  scale,  we  anticipate  looking  favorably  upon  proposals  mirroring  the  band  plan  set  forth  in  this  Report  and  Order.  Conversely,  we  anticipate  being  less  inclined 
 to  approve  proposals  that  deviate  from  the  band  plan.  We  also  delegate  to  the  Chief  of  the  Wireless  Telecommunications  Bureau  the  authority  to  grant  whatever  waivers  are  necessary  to  implement  channel 
 swap  proposals. 
 b.  Interference  Abatement  Rules  and  Procedures 
 (i)  Mutual  Notification  Requirements  Applicable  to  800  MHz  Licensees 


 124.  We  are  adopting  rules  requiring  ESMR  and  cellular  telephone  licensees  to  furnish  to  those  public  safety  and  CII  agencies  who  request  it,  prior  notice  of  at  least  ten  business  days  before  new  cells  are 
 constructed  or  existing  cells  are  modified.  351  Public  safety  and  CII  agencies  which  receive  this  information  have  the  reciprocal  obligation  to  inform  ESMR  and  cellular  telephone  licensees  whenever  the  public  safety 
 or  CII  licensee  changes  its  system  parameters.  We  take  these  steps  in  general  agreement  with  those  parties  who  believe  that  prior  notice  has  a  prophylactic  effect  on  interference  avoidance.  Thus,  if  the 
 characteristics  of  a  proposed  new  cell  are  known  in  advance,  it  is  possible  to  analyze  the  cells  potential  for  interference  and  make  any  necessary  revisions  to  cell  parameters  before  the  cell  is  activated.  For  example, 
 an  ESMR  or  cellular  telephone  licensee  could  furnish  the  public  safety  or  CII  licensee  or  its  representative,  e.  g.  a  frequency  coordinator,  the  proposed  parameters  of  a  new  cell  sufficiently  far  in  advance  to  allow 
 these  parties  to  analyze  the  cells  potential  for  interference  and  suggest  any  necessary  changes  that  should  be  made  before  the  cell  is  activated.  This  exchange  of  information  can  be  performed  in  any  manner 
 agreeable  to  all  parties  involved.  We  decide  to  limit  this  notification  entitlement  to  only  public  safety  and  CII  licensees;  and  then  only  if  they  request  ESMR  and  cellular  telephone  licensees  to  furnish  them  the 
 information  on  a  regular  basis.  We  decline  the  alternative  requiring  ESMR  and  cellular  licensees  to  furnish  the  information  whether  requested  or  not  in  the  interest  of  avoiding  the  burden  of  producing  and 
 receiving  unnecessary  paperwork,  and  in  fulfillment  of  our  obligations  under  the  Paperwork  Reduction  Act.  352  We  do  not  require  notification  of  other  non-  cellular  800  MHz  licensees  in  consideration  of  the  fact 
 that  their  communications  are  unlikely  to  be  of  a  mission-  critical  nature  and  because  of  the  burden  that  could  be  imposed  on  the  ESMR  and  cellular  telephone  carriers  were  it  necessary  to  furnish  information  to 
 large  numbers  of  licensees,  especially  in  urban  areas.  However,  we  do  endorse,  but  do  not  require,  ESMR  and  cellular  telephone  licensees  furnishing  notification  information  to  any  800  MHz  licensee  requesting  it; 
 e.  g.,  because  of  frequent  instances  of  interference.  Finally,  we  impose  a  reciprocal  obligation  on  public  safety  and  CII  licensees  to  provide  notification  of  their  facilities,  and  any  modifications  thereto,  to  ESMR 
 and  cellular  telephone  licensees  requesting  same. 
 125.  The  800  MHz  Users  Coalition  argues  we  should  require  prior  coordination  rather  than  just  notification  using  the  standards  contained  in  TIA  TSB-  88A;  but  they  have  not  stated  precisely  how 


 TSB-  88A  would  be  useful  in  effecting  prior  coordination  of  cell  sites.  353  We  note  that  TSB-  88A  was  the  result  of  studies  of  the  impact  of  spectrum  refarming  and  digital  modulation  on  the  frequency  coordination 


 351  We  will  not  require  ESMR  or  cellular  telephone  licensees  to  furnish  prior  notice  information  to  non-public 
 safety  or  non-  CII  licensees  although  we  encourage  the  exchange  of  such  information  when  specifically  requested  by  a  non-  public  safety  or  non-  CII  licensee. 


 352  See  Appendix  B  infra. 
 353  See  800  MHz  Users  Coalition  May  29,  2003  Ex  Parte  at  6. 
70
 Federal  Communications  Commission  FCC  04-  168 
 71 
 of  land  mobile  radio  systems  and  deals  primarily  with  potential  co-  channel  and  adjacent  channel  interference.  354  However,  in  the  case  of  800  MHz  public  safety  systems,  co-  channel  interference  has  not 
 been  identified  as  a  significant  problem.  Although  adjacent  channel  interference  can  be  a  factor  particularly  in  the  interleaved  800  MHz  channels  the  interference  mechanisms  at  work  in  most  instances 
 of  800  MHz  public  safety  systems  differ  from  those  covered  in  TSB-  88A.  Moreover,  although  TSB-  88A  makes  a  passing  reference  to  noise  generated  by  non-  wireline  cell  sites  355  in  its  discussion  of 
 Environmental  RF  Noise  356  the  document  is  primarily  directed  to  interference  between  high-  site  systems.  Accordingly,  although  we  believe  that  some  parts  of  TSB-  88A  might  be  useful  in  800  MHz  interference 
 analysis,  e.  g.  the  documents  discussion  of  coverage  reliability;  357  we  do  not  think  it  wholly  applicable  to  the  environment  in  which  800  MHz  public  safety  systems  operate.  We  are  aware  of  no  agreed-  upon 
 coordination  standards  that  address  the  OOBE  and  intermodulation  interference  that  occurs  in  the  immediate  vicinity  of  cell  sites;  and  thus  are  not  mandating  prior  coordination  of  cell  sites.  However,  we 
 believe  that  notification  of  cell  site  parameters  will  allow  some  inferences  to  be  drawn,  on  a  case  by  case  basis,  relative  to  the  cells  potential  for  generating  unacceptable  interference. 


 126.  The  parameters  most  relevant  to  prior  notification  of  a  cell  are  its  location,  the  effective  radiated  power,  the  antenna  height,  and  the  channels  in  use.  358  Accordingly,  we  believe  that  non-  cellular 
 800  MHz  licensees  should  have  such  information  available  on  request  from  ESMR  and  cellular  telephone  licensees  and  so  require.  We  impose  a  similar  requirement  on  public  safety  licensees  (i.  e.,  to,  upon 
 request,  provide  their  operating  parameters  to  ESMR  and  cellular  telephone  licensees  operating  within  the  public  safety  systems  coverage  areas.).  We  are  aware  that  some  ESMR  and  cellular  telephone  licensees 
 regard  their  operating  parameters  as  proprietary  and  encourage  such  licensees  to  use  non-  disclosure  agreement  whereby  third  parties  will  not  be  given  access  to  such  information.  Failing  that,  the  affected 
 parties  may  seek  a  protective  order  from  the  Commission.  359  We  also  encourage,  but  do  not  require,  that  the  matter  be  submitted  to  arbitration,  mediation,  or  other  alternative  dispute  resolution  mechanism. 


 127.  We  stress  that  the  prior  notification  provided  to  the  public  safety  licensee  is  for  informational  purposes  only:  we  are  not  affording  public  safety  or  CII  licensees  the  right  to  accept  or 
 reject  the  activation  of  a  proposed  cell  or  to  unilaterally  require  changes  in  its  operating  parameters.  The  principal  purposes  of  notification  are  to:  (a)  allow  a  public  safety  or  CII  licensee  to  advise  the  ESMR  or 
 cellular  telephone  licensee  whether  it  believes  a  proposed  cell  will  generate  unacceptable  interference;  (b)  permit  ESMR  or  cellular  telephone  licensees  to  make  voluntary  changes  in  cell  parameters  when  a  public 
 safety  or  CII  licensee  alerts  them  to  possible  interference;  and  (c)  rapidly  identify  the  source  if  interference  is  encountered  when  the  cell  is  activated.  Thus,  at  the  very  least,  the  knowledge  that  a  new  ESMR  or 


 354  See  TSB-  88A,  June  1999  at  vii  (Introduction).  The  TIA  document  does  not  contemplate  interference 
 from  low  site  ESMR  and  cellular  telephone  systems  of  the  kind  discussed  herein.  For  example,  intermodulation  interference  is  discussed  only  in  the  context  of  base  station  receivers,  not  mobile  or  portable  receivers.  See  id.  at   


 5.4.2-  5.4.4. 
 355  TSB-  88A,  June  1999  at  36    5.1. 


 356  Id. 
 357  Id  at  86. 
 358  See,  e.  g.,  Project  39,  Interference  to  Public  Safety  800  MHz  Radio  Systems,  Interim  Report  to  the 
 FCC,  December  24,  2001  at  12-  21.  See  also  Best  Practices  Guide  at  7-  8;  Motorola  Comments  at  20. 
 359  See  Digital  Output  Protection  Technology  and  Recording  Method  Certifications,  Order,  MM  Docket 
 04-  68,  DA  04-  716  (rel.  Mar  17,  2004).  See  also  47  C.  F.  R    0.457,  0.459. 
71
 Federal  Communications  Commission  FCC  04-  168 
 72 
 cellular  telephone  cell  was  going  to  be  activated  on  a  given  date  would  allow  a  public  safety  or  CII  representative  to  attribute  interference  to  that  cell  if  new  interference  were  encountered  where  it  had  not 
 existed  before. 
 (ii)  Responsibility  for  Mitigation  Pre-  and  Post-  Band  Reconfiguration 


 128.  The  Consensus  Parties  envisioned  that  their  unacceptable  interference  threshold  provisions  would  go  into  effect  only  after  band  reconfiguration  was  complete.  However,  the  severity  of  interference 
 currently  being  encountered  is  such  that  we  cannot  responsibly  let  it  go  unaddressed  in  the  interim.  Given  the  demonstrated  utility  of  Enhanced  Best  Practices,  and  the  extensive  other  resources  technical, 
 financial  and  otherwise  available  to  ESMR  and  cellular  licensees,  they  currently  are  capable  of  eliminating  unacceptable  interference  pending  completion  of  band  reconfiguration,  albeit  at  the  occasional 
 expense  of  subscriber  capacity  limitations  or  the  need  to  fund  improvements  to  non-  cellular  systems.  Although  many  ESMR  and  cellular  licensees  have  been  commendably  cooperative  in  bearing  the 
 responsibility  for  identifying  and  promptly  curing  interference  at  their  own  expense;  we  believe  it  prudent  to  codify  this  previously  voluntary  effort  into  strict  responsibility.  Under  that  policy,  any  ESMR  or 
 cellular  telephone  licensee  that  causes,  or  contributes  to,  unacceptable  interference  to  a  non-  cellular  licensee  is  responsible  for  abating  it  promptly  at  its  own  expense.  In  so  assigning  responsibility,  we  place 
 it  on  the  party  or  parties  best  qualified  and  situated  to  take  the  actions  necessary  to  ensure  that  first  responders  both  public  safety  and  CII  personnel  have  communications  channels  free  of  unacceptable 
 interference  and  which  thus  are  suitable  for  mission-  critical  operations  including  rapid  response  to  major  attacks  that  threaten  Homeland  Security.  Accordingly,  as  of  the  effective  date  of  this  Report  &  Order, 
 ESMR  and  cellular  carriers  are  strictly  responsible  for  abating  unacceptable  interference  as  defined  supra.  360 


 129.  We  carefully  considered  alternatives  to  strict  responsibility,  including  those  discussed  in  the  NPRM  but  found  them  either  insufficiently  effective  or  overly  burdensome  on  the  ESMR  and  cellular 
 telephone  industries.  For  example,  we  considered  the  comments  of  parties  which  advocated  across-  the-board  limits  on  such  cell  parameters  as  maximum  power  flux  density  in  the  immediate  vicinity  of  the  cell, 
 reduced  effective  radiated  power,  antenna  vertical  pattern  restrictions,  limits  on  the  cumulative  OOBE  from  cell  transmitters  and  the  like.  361  However,  we  recognized  that  such  limits  would  impose  heavy 
 burdens  on  ESMR  and  cellular  telephone  licensees,  and  that  the  restrictions  would  require  modifications  of  cells  that  had  little,  if  any,  potential  for  generating  unacceptable  interference.  Therefore,  in  lieu  of  adopting 
 what  could  be  draconian  rules,  we  are  affording  ESMR  and  cellular  telephone  licensees  the  discretion  to  make  any  necessary  changes  to  their  own  systems  or  changes  to  non-  cellular  systems  affected  by 
 unacceptable  interference  as  may  be  necessary  to  eliminate  unacceptable  interference.  362 
 130.  We  assign  strict  responsibility  for  eliminating  unacceptable  interference  when  an  ESMR 


 360  In  imposing  strict  responsibility  for  the  abatement  of  unacceptable  interference  we  are  doing  no  more 
 than  formalizing  the  interference-  abatement  responsibilities  underlying  the  Commissions  initial  approval  of  cellular-  architecture  systems  operating  in  the  800  MHz  band.  See  Fleet  Call,  Inc.,  Waiver  Request  at  32-  33.  There 


 the  Commission  noted  that  Fleet  Calls  statement  about  interference  potential  firmly  guides  our  consideration  of  Fleet  Call's  proposal.  Id. 


 361  See  n.  305  and  n.  306  supra. 
 362  We  decline  to  specify  what  remedies  may  be  necessary  in  a  particular  circumstance,  but  observe  that 
 they  could  include  responsibility  for  furnishing  affected  non-  cellular  systems  with  additional  base  stations  or  more  interference-  resistant  mobile  and  portable  radios. 
72
 Federal  Communications  Commission  FCC  04-  168 
 73 
 or  cellular  telephone  signal  is  solely  implicated  in  an  interference  incident.  In  circumstances  in  which  two  or  more  ESMR  or  cellular  telephone  signals  are  implicated,  strict  responsibility  must  be  reflected  in  the 
 sources  joint  and  several  responsibility  for  interference  abatement.  We  say  this  in  the  knowledge  that  the  interfering  licensees  are  in  the  best  position  to  determine  their  relative  contributions  to  interference 
 problems  and  to  agree  upon  what  specific  measures  must  be  undertaken  by  each  licensee  in  order  for  interference  abatement  efforts  to  be  effective.  We  wish  it  understood,  however,  that  such  responsibility 
 does  not  attach  merely  because  a  licensees  cell  is  in  the  immediate  vicinity  of  the  locus  of  interference.  Thus,  we  will  not  assign  joint  and  several  responsibility  to  ESMR  and  cellular  telephone  licensees  that  can 
 demonstrate  that  their  signals  are  not  involved  in  a  given  interference  case.  363  However,  in  so  saying,  we  emphasize  that  we  have  discounted  claims,  made  earlier  in  this  proceeding,  categorically  denying  that 
 licensees  in  the  cellular  telephone  bands  cause  interference  to  800  MHz  public  safety  systems.  364  There  is  strong  evidence  to  the  contrary.  365  We  will,  therefore,  require  all  involved  parties,  ESMR  and  cellular 
 telephone  licensees  alike  and  each  of  them  severally  to  respond  to  every  complaint  of  interference  to  a  non-  cellular  800  MHz  system  with  full  cooperation  and  utmost  diligence  to  abate  objectionable 
 interference  in  the  shortest  practicable  time. 
 131.  In  sum,  rather  than  impose  stringent,  across-  the-  board  emission  limits  at  this  time,  we  are  adopting  rules  that  require  ESMR  and  cellular  telephone  licensees  to  act  only  when  and  where  it  is  evident 


 that  unacceptable  interference  is  or  will  be  caused  to  non-  cellular  800  MHz  systems,  thereby  affording  such  licensees  a  high  degree  of  technical  flexibility  and  minimizing  the  cost  of  interference  avoidance.  366 
 However,  we  will  not  extend  the  same  level  of  flexibility  to  the  procedures,  and  associated  time  limits,  necessary  to  ensure  that  ESMR  and  cellular  telephone  licensees  respond  to  complaints  of  interference  to 
 public  safety/  CII  systems.  Although  some  ESMR  and  cellular  telephone  licensees  have  been  commendably  cooperative  in  abating  interference;  the  record  shows  that  this  has  not  always  been  the 
 case.  367  Thus,  we  assign  ESMR  and  cellular  telephone  licensees  strict  responsibility  for  effectively  curing  actual  or  potential  unacceptable  interference  to  800  MHz  public  safety/  CII  systems  in  the  shortest 
 practicable  time.  368  To  a  degree,  this  approach  will  test  the  wisdom  of  our  forbearing  system-  wide  stringent  regulation  of  the  technical  aspects  of  ESMR  and  cellular  telephone  systems  pending  an 
 assessment  of  whether  licensees  can  successfully  abate  interference  under  the  less  stringent  regulatory  regime  we  establish  today. 


 363  See  47  C.  F.  R.    22.971(  b)(  2)  and  90.673(  b)(  2)  in  Appendix  C  infra. 
 364  See,  e.  g.,  Verizon  Comments  at  2;  Southern  LINC  Comments  at  11;  and  Cingular  Comments  at  2-  3. 
 Some  parties  argued  that  reports  of  interference  were  anecdotal  in  nature,  and  for  that  reason,  did  not  represent  a  true  evaluation  of  the  problem.  See  Cinergy  Comments  at  7-  9. 


 365  See,  e.  g.,  Anne  Arundel  County  ex  parte  letter  dated  July  29,  2003  at  2  (indicating  that,  in  addition  to 
 Nextel,  both  Cingular  and  Verizon  contribute  to  interference).  See  also  Denver  June  10  Ex  Parte  at  1  (stating  that  field  measurements  and  analysis  implicate  AT&  T  Wireless  as  a  source  of  interference). 


 366  See  47  C.  F.  R.    22.972  and  90.674  in  Appendix  C  infra. 
 367  See  e.  g.,  City  of  Portland,  Oregon  Comments  at  3  (describing  difficulty  in  securing  Nextel's 
 cooperation  in  resolving  interference);  Department  of  Information  Technology,  Fairfax  County,  Virginia  Comments  (indicating  that  Nextel  causes  interference  but  has  implemented  no  mitigation  measures);  Attachment  to 


 Letter,  dated  September  17,  2003,  from  Alan  H.  Tilles,  Counsel  for  City  and  County  of  Denver  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission  at  4  (stating  that  AT&  T  has  taken  no  steps  to  mitigate 
 ongoing  interference). 
 368  See  47  C.  F.  R.    22.972(  c)  and  90.674(  c)  in  Appendix  C  infra. 
73
 Federal  Communications  Commission  FCC  04-  168 
 75 
 a  5,000  foot  radius  of  an  interference  site  to  respond  to  an  interference  complaint  within  a  maximum  of  two  days.  Other  parties  recommended  similar  distances  and  response  times.  373  We  believe  the  5,000  foot 
 radius  is  reasonable  for  purposes  of  identifying  those  parties  that  must  respond  to  an  interference  complaint;  374  but  note  that  we  will  not  absolve  parties  with  cell  sites  outside  that  radius  from  the 
 responsibility  for  eliminating  unacceptable  interference  if  it  is  demonstrated  that  they  are  the  source  thereof. 


 136.  We  are  less  sanguine  about  the  recommendation  that  a  response  to  an  interference  complaint  could  be  delayed  for  up  to  two  days.  375  An  unresolved  incident  of  unacceptable  interference 
 impairs  the  ability  of  the  affected  public  safety  or  CII  licensee  to  respond  to  an  emergency,  large  or  small.  Given  the  ease  of  communicating  interference  complaints  electronically,  and  the  fact  that  many,  if  not 
 most,  ESMR  and  cellular  telephone  licensees  have  technical  staff  available  or  on  call  on  an  around-  the-clock  basis  in  the  normal  course  of  business,  we  believe  that  a  response  must  come  in  a  matter  of  hours, 
 not  days.  We  thus  conclude  that  it  is  not  unduly  burdensome  to  require  a  response  to  complaints  from  public  safety  or  CII  licensees  with  all  possible  speed,  and  under  no  circumstances,  in  more  than  twenty-four 
 hours.  In  the  case  of  other  non-  cellular  800  MHz  licensees,  (i.  e.,  B/  ILT  and  non-  cellular  SMR  licensees),  the  maximum  response  time  shall  be  forty-  eight  hours,  acknowledging  that,  for  the  most  part, 
 communications  on  these  latter  systems  are  not  safety-  related. 
 137.  Interference  Analysis.  We  will  require  licensees  receiving  an  initial  notification  of  interference  to  perform  a  timely  analysis  and  identification  of  the  interference,  including,  whenever 


 necessary,  an  immediate  on-  site  visit  if  they  have  cellular  architecture  equipment  operating  within  5,000  feet  of  the  interference  incident.  Licensees  must  complete  this  analysis  and  initiate  corrective  action 
 within  forty-  eight  hours  of  the  initial  complaint  if  the  licensee  is  a  public  safety  or  CII  licensee.  In  the  case  of  other  non-  cellular  800  MHz  licensees,  the  time  to  complete  the  analysis  and  initiate  corrective  action 
 shall  be  ninety-  six  hours.  In  both  cases  the  time  period  may  be  extended  if  the  affected  licensee  reasonably  agrees,  in  writing  (including  e-  mail  or  other  electronic  means  which  creates  a  record),  to  a  longer  period. 


 138.  We  disagree  with  those  parties  that  suggest  that  the  analysis  or  on-  site  visit  could  safely  be  delayed  for  up  to  five  working  days  of  the  date  of  the  original  complaint.  376  We  assume  that  an  ESMR  or 
 cellular  telephone  operator  would  not  allow  a  failure  in  a  critical  element  of  its  network  to  remain  uncorrected  for  five  working  days,  and  thus  believe  that  forty-  eight  hours  (ninety-  six  hours  in  the  case  of 
 other  than  public  safety  and  CII  systems)  is  a  generous  allowance  for  ESMR  or  cellular  telephone  carriers  to  determine  (including  making  any  necessary  site  visits),  whether  their  operations  are  interfering  with 
 public  safety,  CII  or  other  800  MHz  communications.  In  focusing  on  the  obligations  of  ESMR  and 


 373  Id.  at  F  5-  6;  Comments  of  Alltel,  et.  al  to  Supplemental  Comments  of  the  Consensus  Parties,  Appendix 
 A  at  A-  2;  McDermott,  Will  and  Emery  March  12  Ex  Parte,  Appendix  A  at  A-  2,  item  B.  2;  800  MHz  User  Coalition  May  29  Ex  Parte,  Appendix  A  at  5. 


 374  See  e.  g.,  Motorola  ex  parte  presentation  dated  October  30,  2002  (Using  data  taken  in  the  Chicago  area, 
 Motorola  demonstrates  that  beyond  5,000  feet  the  signal  strength  from  ESMR  base  stations  would  be  insufficient  to  cause  intermodulation  interference  to  a  radio  with  70  dB  intermodulation  rejection  ninety-  percent  of 


 the  time). 
 375  See  e.  g.,  Supplemental  Comments  of  the  Consensus  Parties  at  Appendix  F,    3.2;  800  MHz  User 
 Coalition  June  11,  2003  Ex  Parte  at  5. 
 376  See  Supplemental  Comments  of  the  Consensus  Parties  at  Appendix  F  at  F  6;  Comments  of  Alltel,  et.  al. 
 to  Supplemental  Comments  of  the  Consensus  Parties,  Appendix  A  at  A-  3;  McDermott,  Will  and  Emery  March  12  Ex  Parte,  Appendix  A  at  A-  3,  item  3;  800  MHz  User  Coalition  May  29  Ex  Parte  presentation,  Appendix  A  at  5. 
75
 Federal  Communications  Commission  FCC  04-  168 
 76 
 cellular  telephone  licensees  we  do  not  mean  to  imply  that  similar  obligations  do  not  attach  to  public  safety,  CII  and  other  non-  cellular  800  MHz  licensees.  They  are  bound  by  the  good-  faith  obligation  to  exhibit  the 
 utmost  cooperation  with  the  ESMR  and  cellular  telephone  representatives,  including,  without  limitation,  the  obligation  to  timely  meet  appointments  and  provide  whatever  technical  assistance  is  appropriate  under 
 the  circumstances. 
 139.  Mitigation  Steps.  Although  we  leave  the  means  whereby  interference  is  abated  to  the  discretion  of  the  involved  ESMR  and  cellular  telephone  licensees,  we  couple  this  discretion  with  an 


 obligation  on  such  licensees  to  provide  all  test  equipment  (and  technical  personnel  skilled  in  the  operation  of  such  equipment)  necessary  to  determine  the  most  appropriate  means  of  timely  eliminating  the 
 interference.  The  record  contains  considerable  guidance  concerning  techniques  that  parties  can  apply  to  the  problem,  including  those  described  in  the  Best  Practices  Guide,  the  separately  issued  Motorola 
 Technical  Appendix  thereto,  377  and  the  recently  described  measurement  protocol  for  ascertaining  the  exact  interference  mechanisms  involved  in  a  given  complaint.  378  We  expect  parties  to  resolve  interference  in  the 
 shortest  practicable  time;  however,  should  all  short-  term  measures  prove  inadequate,  we  recognize  that  parties  sometime  cannot  readily  or  rapidly  implement  other  remedial  measures  for  example,  channel 
 swaps  or  the  installation  of  new  or  modified  base  stations.  379  In  such  cases,  we  believe  a  rule  of  reason  should  apply  and  that  the  licensee  affected  by  interference,  while  not  compromising  safety,  should  make 
 all  necessary  concessions  to  accepting  the  interference  until  the  implementation  of  longer-  term  remedies.  380  However,  we  will  consider  the  failure  to  timely  implement  an  interference  abating  remedy 
 whether  it  be  near  term  or  long  term  as  evidence  of  bad  faith  and  will  deal  with  it  accordingly. 
 140.  We  also  provide  public  safety  licensees  a  safety  valve  for  use  when  the  continued  presence  of  interference  constitutes  a  clear  and  imminent  danger  to  life  or  property.  381  Under  such 


 circumstances,  we  will  require  the  interference  source(  s)  to  immediately  discontinue  operation,  pending  the  identification  and  application  of  corrective  measures.  The  request  for  this  action:  (a)  must  be  made  by 
 affidavit  or  statement  under  penalty  of  perjury,  382  from  an  officer  or  executive  of  the  affected  public  safety 
 377  See  generally  Appendix  D  infra. 


 378  See  Motorola  April  11,  2003,  ex  parte  presentation  to  Federal  Communications  Commission  Office  of 
 Engineering  and  Technology  at  15-  17. 
 379  In  cases  in  which  intractable  interference  problems  have  not  yielded  to  other  technical  remedies,  Nextel 
 and  public  safety  licensees  have  entered  into  agreements  for  channel  swaps,  whereby  Nextel  moves  its  800  MHz  ESMR  operations  to  the  public  safety  licensees  channels  and  the  public  safety  licensee  relocates  its  operations  to 


 Nextels  ESMR  frequencies.  Under  these  agreements,  Nextel  would  pay  all  or  most  of  the  expense  associated  with  equipment  retuning  or  replacement.  The  Commission  has  granted  several  applications  implementing  channel 
 swaps  in  Anne  Arundel  County,  Maryland.  See,  e.  g.,  Application  for  Modification  of  License  of  Station  KNJU756,  File  No.  476003.  The  Commission  is  also  reviewing  another  such  agreements  between  Nextel  and  the 
 City  of  Denver.  We  also  have  been  informed  that  the  city  and  county  of  San  Diego,  California  are  considering  similar  agreements.  See  generally,  Denver  SOW  and  San  Diego  Ex  Parte.  As  yet,  insufficient  information  exists 
 on  the  results  of  channel  swaps  to  allow  us  to  assess  their  efficacy.  However,  we  believe  that  the  swaps  will  provide  a  test  bed  for  band  reconfiguration,  to  the  extent  they  yield  valuable  information  on  process;  i.  e.,  the  time 
 required  to  negotiate  the  agreements;  the  determination  and  apportionment  of  costs  and  responsibilities,  the  time  required  to  make  the  necessary  technical  changes,  and  the  disruption,  if  any,  of  public  safety  services. 


 380  Should  disputes  arise  in  connection  with  such  matters,  parties  are  encouraged  to  resolve  them  using 
 arbitration,  mediation  or  other  alternative  dispute  mechanisms. 
 381  We  stress  that  we  only  provide  this  safety  valve  to  public  safety  licensees. 


 382  See  47  C.  F.  R.    1.16. 
76
 Federal  Communications  Commission  FCC  04-  168 
 77 
 licensee;  (b)  shall  completely  describe  the  basis  of  the  claim  of  clear  and  imminent  danger;  (c)  must  be  stated  to  be  on  personal  knowledge  or  on  belief  after  due  diligence;  (d)  may  not  be  made  by  a  contractor  or 
 other  third  party;  and  (e)  will  not  be  effective  until  approved  by  an  official  of  the  Commissions  Wireless  Telecommunications  Bureau  or  other  authorized  Commission  official.  The  public  safety  party  must  serve 
 the  statement  on  the  ESMR  and/  or  cellular  telephone  licensee  by  hand-  delivery  or  receipted  fax  and  transmit  a  copy  by  fastest  available  means  to  the  Washington,  D.  C.,  office  of  the  Wireless 
 Telecommunications  Bureau.  383  If  the  Wireless  Telecommunications  Bureau  determines  that  the  claim  of  imminent  and  present  danger  is  valid,  it  will  immediately  refer  the  matter  to  the  Enforcement  Bureau  for 
 appropriate  action.  Any  party  alleging  intentional  or  negligent  misrepresentation  or  omission  in  such  an  affidavit  or  statement  made  under  penalty  of  perjury  may  submit  documentation  thereof  to  the 
 Commissions  Enforcement  Bureau;  whereupon  the  Enforcement  Bureau  may  institute  an  enforcement  action  which  could  result  in,  without  limitation,  forfeitures  and  license  revocation.  Such  Commission 
 action  would  be  in  addition  to,  and  not  to  the  exclusion  of,  other  remedies  available  under  local,  state  or  federal  law. 


 141.  Finally,  we  note  that  we  will  monitor  interference  complaint  data  on  an  ongoing  basis  to  ensure  the  interference  abatement  objectives  addressed  in  this  proceeding  will  continue  to  be  accomplished 
 both  before  and  after  band  reconfiguration.  We  emphasize  that  our  responsibility  to  ensure  that  800  MHz  non-  cellular  licensees  do  not  suffer  from  unacceptable  interference  from  CMRS  carriers  will  be  complaint-driven, 
 and  we  urge  affected  licensees  to  carefully  monitor  their  systems  and  promptly  report  any  incidents  of  unacceptable  interference  to  the  relevant  CMRS  carrier(  s).  384  To  the  extent  that  our  experience  reveals 
 that  the  interference  abatement  procedures  we  adopt  today  require  refinement  to  ensure  high-  quality  800  MHz  public  safety  or  CII  service,  we  will  do  so  as  necessary. 


 C.  Band  Reconfiguration 
 142.  As  noted  in  the  Introduction  to  this  Report  &  Order,  the  root  of  the  instant  problem  lies  in  fundamentally  incompatible  mix  of  two  types  of  communications  systems  in  the  800  MHz  band:  cellular-architecture 


 multi-  cell  systems  used  by  cellular  telephone  and  ESMR  licensees  and  high  site  systems  used  by  public  safety,  private  wireless  and  non-  cellular  SMR  licensees.  For  the  reasons  discussed  below,  385 
 we  believe  reconfiguring  the  800  MHz  band  to  separate  these  incompatible  technologies,  supplemented,  when  necessary  with,  Enhanced  Best  Practices  provides  the  best  long-  term  solution  to  the  problem  of 
 interference  in  the  800  MHz  band.  386 
 1.  Technical  Issues  Addressed  by  Band  Reconfiguration 
 143.  Segregating  ESMR  systems  from  non-  cellular  systems  by  placing  them  in  opposite  segments  of  the  800  MHz  band  will  make  it  possible  for  ESMR  and  cellular  telephone  licensees  to  avoid 


 some  intermodulation  interference.  However,  in  some  instances,  consolidating  ESMR  channels  into  a  single  band  segment  may  not  in  and  of  itself  sufficiently  reduce  unacceptable  intermodulation 


 383  The  Washington,  D.  C.  office  of  the  Wireless  Telecommunication  Bureau  is:  445  12  th  Street  SW, 
 Washington,  D.  C.  20554.  Complaints  should  be  addressed  to  the  Public  Safety  and  Critical  Infrastructure  Division. 
 384  We  recommend,  but  do  not  require,  that  the  affected  parties  keep  records  of  interference  complaints 
 and  the  resolution  thereof;  and  make  such  records  available  to  the  Commission  on  request. 
 385  See    143-  146  infra. 


 386  We  take  these  steps  pursuant  to  our  authority  under  Sections  316,  303,  301  and  154(  i)  of  the  Act.  See 
   62-  87  supra  for  our  legal  authority  to  address  this  issue. 
77
 Federal  Communications  Commission  FCC  04-  168 
 78 
 interference.  The  Radio  Frequency  (R.  F.)  carriers  of  systems  in  a  consolidated  ESMR  band  segment  (and  at  least  a  portion  of  the  R.  F.  carriers  in  cellular  telephone  systems),  would  still  fall  within  the  passband  of 
 all  current  public  safety  portable  and  mobile  receivers.  Thus,  even  in  a  reconfigured  800  MHz  band,  ESMR  channels,  or  ESMR  and  cellular  telephone  channels  could  still,  when  combined  in  the  receiver, 
 generate  intermodulation  products.  Therefore,  as  we  discuss  below,  we  believe  that  abatement  of  unacceptable  intermodulation  interference  will  require  more  than  segregating  cellular  architecture  systems 
 from  non-  cellular  systems.  387  Thus,  for  example,  ESMR  licensees  will  have  to  make  careful  choice  of  channel  selection  such  that  two  or  more  channels  at  a  cell  do  not  produce  an  intermodulation  product 
 falling  on  a  public  safety  or  CII  channel. 
 144.  Consolidating  ESMR  systems  into  one  continuous  segment  in  the  upper  portion  of  the  800  MHz  band  will  provide  ESMR  licensees  with  greater  flexibility  in  selecting  channel  pairs.  The  spacing 


 between  ESMR  channels  determines  where  intermodulation  products  will  fall  in  the  band.  With  closely  spaced  ESMR  channels,  the  intermodulation  products  fall  into  or  just  below  the  upper  portion  of  the 
 ESMR  segment  of  the  reconfigured  band.  As  the  cell  channel  spacing  increases,  the  intermodulation  products  become  further  removed  from  the  ESMR  band  segment,  extending  further  down  into  the  non-cellular 
 channels  including  channels  used  by  public  safety  systems.  In  the  reconfigured  band,  a  careful  ESMR  channel  choice  could  reduce  the  potential  for  intermodulation  interference  generated  between  the 
 ESMR  channels  in  a  given  cell.  Given  careful  coordination  among  licensees,  it  will  also  be  possible,  in  some  instances,  to  avoid  intermodulation  products  formed  by  a  combination  of  ESMR  channels  and 
 cellular  telephone  channels.  However,  considerably  more  care  is  required  when  two  licensees  are  involved.  Close-  spacing  of  channels  is  often  not  an  option  in  that  circumstance;  388  however,  it  still  may  be 
 possible  to  avoid  channel  combinations  that  result  in  intermodulation  products  falling  on  specific  frequencies  used  by  public  safety/  CII  systems.  This  latter  solution  may  be  more  difficult  to  implement 
 when  cellular  telephone  systems  use  dynamic  channel  allocation  whereby  the  channels  in  a  given  cell  can  change  frequently,  e.  g.,  on  an  hourly  basis,  in  response  to  traffic  loads.  Moreover,  some  cellular  telephone 
 systems  may  make  more  use  of  technology,  such  as  CDMA,  in  which  wider  bandwidth  carriers  produce  IM  products  with  a  wider  bandwidth  thus  potentially  affecting  more  frequencies. 


 145.  We  believe  that  a  reconfigured  800  MHz  band  will  permit  future  public  safety  radios  to  be  more  interference  resistant.  Because  there  currently  are  public  safety  channels  scattered  throughout  the 
 800  MHz  band,  from  the  bottom  of  the  General  Category  band  segment  at  806  MHz/  851  MHz  to  the  top  of  the  NPSPAC  channels  at  824  MHz/  869  MHz,  the  device  called,  variously,  the  preselector  or  input 
 filter  of  the  public  safety  radio  must  be  sufficiently  wide  to  cover  the  complete  851-  869  MHz  range,  including  the  current  ESMR  channels  which  fall  at  861-  866  MHz.  Narrowing  the  range  of  Public  Safety 
 frequencies  allows  equipment  manufacturers  to  utilize  narrower  filters  that  will  attenuate  potentially  interfering  signals  higher  in  the  band.  389 


 387  See    144  infra. 
 388  For  example,  the  Consensus  Parties  propose  relocating  all  ESMR  channels  to  the  862-  869  MHz  band 
 segment  while  all  cellular  telephone  channels  would  remain  in  the  adjacent  869-  894  MHz  band  segment.  Thus  ESMR  and  cellular  telephone  channels  could  be  closely  spaced  only  in  the  upper  portion  of  the  ESMR  band 


 segment,  which  corresponds  to  the  lower  portion  of  the  cellular  telephone  band  segment. 
 389  In  a  sense,  the  preselector  or  input  filter  is  the  front  door  of  the  radio  which  currently  must  be  open 
 wide  enough  that  potentially  interfering  ESMR  signals  can  enter  unimpeded.  However,  when  the  800  MHz  band  is  reconfigured,  the  front  door  need  be  opened  only  widely  enough  to  admit  signals  from  851-  862  MHz.  With  the 


 door  not  open  as  wide,  signals  above  862  MHz  including  ESMR  and  cellular  telephone  signals  would  have  a  difficult  time  squeezing  through  and  causing  interference. 
78
 Federal  Communications  Commission  FCC  04-  168 
 80 
 800  MHz  systems  can  be  changed  in  frequency  with  only  minor  changes,  most  of  which  can  be  implemented  in  software.  395  Older  systems  may  require  part  changes,  and,  in  some  instances,  replacement 
 of  entire  transmitters  and  receivers.  The  overall  band  reconfiguration  process  will  also  require  spectrum  green  space;  for  example,  Nextel  systems  in  the  General  Category  band  segment  would  be  moved 
 temporarily  into  Nextel  spectrum  at  900  MHz,  thereby  clearing  the  General  Category  band  segment.  Next,  the  current  NPSPAC  channels  would  be  moved  into  the  cleared  space  at  806-  809  MHz/  851-  854 
 MHz.  Nextel  has  accomplished  band  reconfiguration  before,  albeit  on  a  smaller  scale,  when  it  cleared  the  Upper  200  channels  of  incumbent  users.  Based  on  data  derived  from  inspection  of  sixteen  public  safety 
 systems  of  varying  complexity,  Nextel  has  estimated  the  total  cost  of  band  reconfiguration  at  $850  million  and  has  pledged  to  pay  up  to  that  amount.  There  is  some  disagreement  over  Nextels  estimates;  but  no  real 
 basis  of  choosing  among  competing  band  reconfiguration  proposals  on  the  basis  of  price:  Nextel  is  the  only  party  to  this  proceeding  that  has  made  a  firm  commitment  to  absorb  the  cost  of  band  reconfiguration, 
 including  reconfiguration  of  its  own  systems,  a  factor  not  included  in  the  $850  million  estimate.  396 
 148.  We  are  sensitive  to  the  concerns  of  those  parties,  including  some  public  safety  agencies  whose  systems  do  not  now  receive  interference  from  ESMR  and  cellular  telephone  cells,  who  assert  that 


 reconfiguring  the  800  MHz  band  could  unnecessarily  disrupt  their  communications  while  their  operating  frequencies  are  changed,  or  that  their  new  channels  would  not  be  comparable  to  their  original  channels.  397 
 We  are  committed  to  ensuring  that  band  reconfiguration  will  not  result  in  degradation  of  existing  service.  We  believe  the  rules  we  adopt  today  will  ensure  both  continuity  of  service  and  comparable  facilities. 
 With  respect  to  the  latter,  we  note  that  the  rules  we  adopt  today  track  rules  the  Commission  has  successfully  used  to  accomplish  previous  band  reconfigurations.  398 


 2.  New  800  MHz  Band  Plan 
 a.  Band  Plan  Overview 
 149.  In  evaluating  the  various  band  reconfiguration  plans  submitted  in  this  proceeding,  we  sought  to  identify,  in  each  plan,  five  principal  components  that  we  deemed  essential  to  the  final 


 Commission  Band  Plan: 
 395  On  July  30,  2003,  the  Consensus  Parties  conducted  a  live  demonstration  of  base  station  and  portable 
 retuning  using  both  Motorola  and  Kenwood  equipment.  The  retuning  was  accomplished  within  a  brief  period  without  the  need  to  change  any  system  components.  The  down-  time  of  the  equipment  was  minimal.  In  one 


 instance,  the  technicians  demonstrated  use  of  a  portable  base  station  that  was  substituted,  temporarily,  for  the  equipment  being  retuned.  In  the  latter  demonstration,  the  only  down-  time  was  the  few  seconds  required  to 
 disconnect  and  reconnect  the  system  antennas.  The  Consensus  Parties  do  not  claim,  nor  do  we  believe,  that  all  systems  could  be  retuned  with  equal  facility;  however  the  demonstration  suggests  that  retuning  time  need  not  be  a 
 concern  when  modern  equipment  is  involved. 
 396  The  Consensus  Plan  envisions  that  Nextel  would  fund  the  reconfiguration  of  its  own  systems 
 separately.  See  Attachment  to  Letter,  dated  March  14,  2004,  from  Regina  M.  Keeney,  Esq.,  Counsel  to  Nextel  to  Marlene  H.  Dortch,  Secretary  Federal  Communications  Commission. 


 397  Some  such  concerns  were  directed  to  the  Nextel  White  Paper  proposal  in  which  B/  ILT  and  non-cellular 
 SMR  facilities  all  were  to  be  relocated  to  the  700  MHz  Guard  Band  and  the  900  MHz  land  mobile  band.  That  proposal  was  superseded  by  the  band  plan  proposed  by  the  Consensus  Parties,  which  retains  incumbents  in  the 


 800  MHz  band,  excepting  those  electing  a  2  for  1  proposal  whereby  they  would  obtain  double  their  existing  spectrum  if  they  relocated  from  800  MHz  to  900  MHz.  See  Supplemental  Comments  of  the  Consensus  Parties  at 
 13. 
 398  See,  e.  g.,  47  C.  F.  R.    90.699(  d). 
80
 Federal  Communications  Commission  FCC  04-  168 
 86 
 separate  grouped  public  safety  channels  by  500  kHz.  421  Since  the  new  twelve  public  safety  channels  were  pulled  from  the  SMR  pool,  there  will  be  non-  cellular  SMR  licensees  operating  on  these  channels. 
 Therefore,  we  hereby  grandfather  those  non-  cellular  SMR  licensees  that  are  operating  on  the  new  public  safety  channels  for  an  indefinite  period,  and  we  will  permit  the  filing  of  modification  applications  by  these 
 grandfathered  licensees.  422  These  grandfathered  licensees  will  operate  on  a  strict  non-  interference  basis,  subject  to  pre-  coordination  of  any  new  of  modified  operations.  423 


 c.  Guard  Band 
 157.  We  establish  a  Guard  Band  in  the  816-  817  MHz/  861-  862  MHz  segment  of  the  800  MHz  band  to  guarantee  public  safety  licensees  an  additional  one  megahertz  spectral  separation  from  the  cellular 


 portion  of  the  band.  Nextel  will  vacate  the  Guard  Band.  No  licensee  including  public  safety  and  CII  will  be  involuntarily  relocated  to  the  Guard  Band.  We  will  grandfather  all  non-  Nextel  CMRS  licensees 
 who  currently  operate  within  the  Guard  Band.  These  grandfathered  licensees  will  be  permitted  to  continue  operating  on  current  frequencies,  with  currently  authorized  facilities,  on  a  strict  non-  interference  basis, 
 subject  to  pre-  coordination  of  any  new  of  modified  operations.  424  However,  we  will  not  accept  new  non-public  safety  applications  on  any  of  the  twelve  new  800  MHz  public  safety  frequencies. 


 158.  Once  Nextel  has  vacated  the  Guard  Band  any  800  MHz  band  licensee  currently  operating  below  816  MHz/  861  MHz  may  apply  for  channels  there.  Any  channel  below  816  MHz/  861  MHz  vacated 
 by  a  licensee  relocating  to  the  Guard  Band  will  be  available  only  to  public  safety  licensees  for  three  years  from  the  effective  date  of  this  Report  and  Order  and  to  public  safety/  CII  licensees  for  an  additional  two 
 years  from  that  date.  Licensees  who  voluntarily  relocate  to  the  Guard  Band  after  Nextel  has  vacated  will  be  required  to  tolerate  increasing  levels  of  interference  from  cellular-  architecture  systems  as  a  function  of 
 increasing  frequency.  425  The  minimum  median  received  power  level  required  for  interference  protection  (-104  dBm  for  mobile  units  or  -101  dBm  for  portable  units)  will  increase  as  shown  in  Figure  1,  below.  The 
 channels  these  licensees  vacate  in  the  spectrum  below  816  MHz/  861  MHz  will  be  available  to  public 


 (Continued  from  previous  page)  and  Requirements  for  Priority  Access  Service,  WT  Docket  No.  96-  86,  Third  Memorandum  Opinion  and  Order  and 
 Third  Report  and  Order,  15  FCC  Rcd  19844,  19857  (2000). 
 421  See  47  C.  F.  R.    90.617(  a),  Table  1  in  Appendix  C,  infra. 


 422  We  believe  that  there  is  little  risk  of  interference  to  public  safety  from  these  grandfathered  non-  cellular 
 SMR  incumbents.  These  incumbents  will  be  prohibited  from  operating  cellular  systems  in  the  non-  cellular  portion  of  the  800  MHz  band.  See  47  C.  F.  R.    90.614  in  Appendix  C,  infra.  Further,  any  grandfathered  site-  based  B/  ILT 


 or  non-  cellular  SMR  licensee  who  chooses  to  modify  its  license  on  one  of  these  new  public  safety  channels  will  be  required  to  obtain  frequency  coordination  and  receive  concurrence  from  a  certified  public  safety  coordinator.  See 
 47  C.  F.  R.    90.175(  c)  and  (e).  EA-  based  non-  cellular  SMR  licensees  who  are  grandfathered  on  these  new  public  safety  channels  and  choose  not  to  relocate  while  not  subject  to  frequency  coordination  will  nonetheless  be 
 limited  to  operating  within  the  EA  of  their  license.  See  47  C.  F.  R.    90.683(  a). 
 423  See  47  C.  F.  R.    90.617(  j)  in  Appendix  C  infra. 


 424  Id. 
 425  The  Guard  Band  would  serve  a  purpose  similar  to  the  guard  band  channels  developed  to  protect  public 
 safety  systems  from  interference  from  commercial  systems  in  the  700  MHz  band.  Cellular  operations  are  prohibited  in  the  700  MHz  guard  band  channels  (746-  747  MHz,  776-  777  MHz,  762-  764  MHz,  and  792-  794  MHz) 


 to  provide  a  buffer  between  public  safety  and  commercial  spectrum  allocations.  See  47  C.  F.  R.    27.2(  b). 
86
 Federal  Communications  Commission  FCC  04-  168 
 87 
 safety  licensees  for  five  years  and  to  CII  licensees  during  years  four  and  five  of  the  five-  year  period.  426 
 FIGURE  1:  Required  Received  Signal  Levels  for  Interference  Protection 


 Protection  thresholds:  861-  862  MHz 


 -110 
 -105 
 -100 
 -95 
 -90 
 -85 
 -80 
 -75 
 -70 
 -65 
 -60 


 861  861.  1  861.2  861.3  861.  4  861.5  861.  6  861.7  861.  8  861.9  862 
 Frequency  (MHz) 


 Required 
 signal 
 level 
 for 
 protection 


 (dBm) 


 Portable  requirement  Mobile  requirement 
 d.  Relocating  ESMR  Operations  in  800  MHz  Band 
 159.  We  recognize  that  there  are  CMRS  licensees  other  than  Nextel  using  iDEN  or  iDEN-  like  ESMR  technology  in  the  800  MHz  band.  For  example,  Southern  LINC,  a  Nextel  competitor,  operates 


 ESMR  systems  using  Motorola  iDEN  technology  in  Georgia,  Mississippi,  Alabama  and  Florida.  427  Airtell  Wireless,  LLC,  and  Nevada  Wireless,  LLC,  operate  an  iDEN  derivative,  the  Harmony  system,  on  the 
 interleaved  channels  in  areas  of  Montana  and  Nevada,  and  represent  that  they  will  be  constructing  Harmony  systems  in  other  markets.  428  Preferred  Communications,  Inc.  holds  spectrum  rights  in  various 
 areas  of  the  continental  United  States  and  has  extensive  800  MHz  band  spectrum  rights  in  the  Commonwealth  of  Puerto  Rico  and  the  U.  S.  Virgin  Islands.  429  Some  of  these  parties  operating  cellular-architecture 
 systems  in  the  800  MHz  band  note  that  their  systems  have  already  created  interference  to  public  safety  systems.  430 


 160.  The  Consensus  Parties  did  not  discuss  these  other  CMRS  cellular-  architecture  systems, 
 426  See  47  C.  F.  R.    90.617(  h)  in  Appendix  C  infra. 
 427  See  Southern  LINC  Comments  at  4. 
 428  See  Letter,  dated  November  7,  2003,  from  Elizabeth  Sachs,  counsel  for  Airtell  Wireless  and  Nevada 
 Wireless  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission. 
 429  See  Comments  of  Preferred  to  the  Consensus  Parties  Reply  Comments  at  8. 


 430  Id. 
87
 Federal  Communications  Commission  FCC  04-  168 
 90 
 portion  of  the  band  so  widened,  Southern  LINC  and  Nextel  would  engage  in  a  channel  exchange  that  would  result  in  the  configuration  of  channels  shown  in  Appendix  G,  which  also  includes  a  map  of  the  area 
 in  which  the  ESMR  portion  of  the  band  would  be  increased,  and  the  list  of  counties  within  the  area  shown  on  the  map. 


 165.  We  note  from  the  ex  parte  filings  that  the  Southern  LINC  and  Nextel  agreement  is  not  final  and  that  the  parties  have  not  been  able  to  agree  on  a  final  apportionment  of  channels  in  the  Atlanta, 
 Georgia  market.  Because  of  the  preliminary  nature  of  the  agreement,  we  need  not  address  it  further  here,  but  encourage  the  parties  to  come  to  an  agreement  that  is  equitable  for  all  licensees  involved. 


 166.  Although  we  do  not  rule  on  the  acceptability  of  the  provisions  contained  in  the  preliminary  agreement,  the  filings  inform  us  that  the  distribution  of  cellular-  architecture  and  non-  cellular 
 systems  in  the  area  shown  in  Appendix  G  is  atypical.  Moreover,  we  believe  that  we  should  change  the  band  plan  for  that  region  now,  before  band  reconfiguration  commences,  so  that  the  overall  band 
 reconfiguration  process  takes  the  revised  band  plan  into  account.  Accordingly,  on  our  own  motion,  we  define  the  ESMR  band  in  the  area  shown  in  Appendix  G  as  the  band  segment  813.5  -  824  MHz/  858.5-  869 
 MHz.  The  Expansion  Band  in  this  area  shall  extend  from  812.5-  813.5  MHz/  857.5-  858.5  MHz.  All  licensees  operating  in  the  band  segment  806-  813.5  MHz/  851-  858.5  MHz  shall  be  afforded  the  same 
 protection  against  unacceptable  interference  as  specified  in    96-  141,  supra. 
 167.  Moreover,  because  Southern  LINCs  recent  ex  parte  submission  indicates  that  it  intends  to  exercise  the  option  of  relocating  into  the  ESMR  portion  of  the  band,  we  will  give  Nextel  and  Southern 


 LINC  the  opportunity  to  finalize  their  agreement  and  recommend  a  channel  distribution  that  equitably  reflects  the  interests  of  all  800  MHz  licensees  in  the  area  shown  in  Appendix  G.  That  agreement  shall  be 
 completed  and  submitted  to  the  Commission  for  review  no  later  than  thirty  days  following  the  publication  of  this  Report  and  Order  in  the  Federal  Register.  The  agreement  must  include  mutual  non-  disclosure 
 provisions  and  a  clear  delineation  of  the  costs  to  be  borne  by  each  party.  It  shall  also  include  a  proposed  band  reconfiguration  schedule  consistent  with  the  obligations  we  have  imposed  on  Nextel  in  this  Report 
 and  Order.  The  agreement  also  shall  contain  an  engineering  analysis  demonstrating  that  the  channel  plan  can  be  implemented  consistent  with  public  safety  and  B/  ILT  licensees  retaining  the  spectrum  necessary  to 
 accommodate  them.  We  delegate  to  the  Chief  of  the  Wireless  Telecommunications  Bureau,  the  authority  to  review  the  agreement,  and  to  resolve  any  disputed  matters  submitted  to  the  Commission  for  de  novo 
 review. 
 168.  In  the  event  the  parties  fail  to  reach  agreement  by  the  date  specified  supra,  they  shall  submit  their  differences  to  the  Transition  Administrator  who  will  attempt  to  facilitate  a  final  agreement.  If 


 the  disputed  matters  are  not  resolved  within  thirty  days,  the  Transition  Administrator  will  submit  the  entire  record  to  the  Commission  for  de  novo  review.  Parties  are  hereby  put  on  notice  that  disputed  matters 
 concerning  ESMR  channels  in  any  area  of  the  country,  including  the  area  shown  in  Appendix  G  may  be  resolved  by  the  Commission  making  a  pro  rata  distribution  of  ESMR  channels.  444  In  the  case  of  the  area 


 (Continued  from  previous  page)  Division,  Wireless  Telecommunications  Bureau,  Federal  Communications  Commission.  See  also  Letter,  dated 
 June  30,  2004,  from  Christine  M.  Gill,  Esq.,  Counsel  to  Southern  LINC  to  Michael  Wilhelm,  Esq.,  Federal  Communications  Commission. 


 444  When  the  ESMR  spectrum  is  not  adequate  to  accommodate  all  eligible  licensees  that  wish  to  relocate 
 to  the  ESMR  block,  and  parties  are  unable  to  agree,  we  may  apportion  the  ESMR  block  as  a  function  of  the  relative  spectrum  rights  each  licensee  holds  in  a  given  EA.  For  example,  in  a  hypothetical  market,  outside  the  area  shown 


 in  Appendix  G,  in  which  licensee  A  currently  has  rights  to  150  channels  and  licensee  B  has  rights  to  250  channels,  the  320  channels  in  the  ESMR  block  would  be  apportioned  by  giving  licensee  A  access  to  128 
 channels  (40%)  and  licensee  B  access  to  192  channels  (60%). 
90
 Federal  Communications  Commission  FCC  04-  168 
 91 
 shown  in  Appendix  G,  a  pro  rata  apportionment  could  reduce  the  current  number  of  channels  available  to  Nextel.  However,  we  observe  that  Nextel  has  additional  spectrum  at  900  MHz  which  can  be  used  to  offset 
 the  shortfall  and  is  receiving  spectrum  at  1.9  GHz.  With  respect  to  Southern  LINC,  we  observe  that  its  relocation  to  the  ESMR  block  would  provide  Southern  LINC  with  clear,  contiguous  spectrum  arguably  of 
 greater  value  and  capacity  than  the  spectrum  it  now  occupies.  This  would  occur  because,  in  some  instances,  Southern  LINC  would  receive  clear  spectrum,  in  exchange  for  site-  based  channels  which  cannot 
 currently  be  used  in  the  entire  EA  because  of  the  need  to  protect  incumbents. 
 169.  Finally,  because  we  are  extending  the  ESMR  band  to  813.5  MHz/  858.5  MHz  in  the  counties  listed  in  Appendix  G,  some  coordination  between  licensees  will  be  necessary  at  the  edge  of  these 


 counties.  Specifically,  ESMR  licensee  operating  within  these  counties  will  be  required  to  maintain  minimum  co-  channel  spacing  distances  to  incumbent  non-  cellular  licensees  operating  just  outside  these 
 counties.  445  In  addition,  there  may  be  instances  where  a  non-  cellular  licensee  operating  just  outside  these  counties  may  need  to  relocate  above  813.5  MHz/  858.5  MHz  in  order  to  complete  band  reconfiguration.  In 
 these  instances,  the  EMSR  licensees  operating  within  the  counties  listed  in  Appendix  G  will  make  all  necessary  accommodations  in  order  to  provide  the  non-  cellular  licensee  with  the  minimum  required  co-channel 
 spacing  on  the  new  channel.  446 
 e.  Permitting  Additional  Non-  ESMR  Cellular  Architecture  Systems  in  the  800  MHz  Band 


 170.  Some  CII  parties,  such  as  utilities,  contend  that  excluding  cellular  systems  from  the  non-cellular  portion  of  the  800  MHz  band  (806-  817  MHz/  851-  862  MHz)  will  impose  a  hardship  on  CII 
 licensees  whose  communications  needs  require  a  transition  of  their  systems  to  cellular  architecture.  447  We  wish  to  proceed  cautiously  in  this  area  out  of  concern  over  replicating  the  unacceptable  interference 
 problem  we  are  attacking  through  band  reconfiguration;  but  we  also  wish  to  avoid  unnecessarily  constraining  the  use  of  innovative  technology  in  the  process.  The  record  suggests  that  CII  cellular 
 systems,  with  well-  designed  network  architecture,  can  operate  without  causing  unacceptable  interference  so  long  as  they  avoid  the  high-  density  cell  operations  that  have  been  a  frequent  source  of  interference  to 
 date.  We  reach  this  finding  in  part  because  we  do  not  anticipate  that  such  CII  or  public  safety  systems  will  require  high  density,  high  user-  capacity  systems  such  as  those  used  by  CMRS  licensees.  The  non-CMRS 
 nature  of  these  systems  would  suggest  that  they  would  not  grow  to  have  such  high  user  demand  that  extensive  deployment  of  low  site  cells  would  be  required.  448 


 445  See  47  C.  F.  R.    90.621. 
 446  We  note  that  co-  channel  spacing  may  be  reduced  through  short-  spacing  agreements.  See  47  C.  F.  R.   
 90.621(  b)(  5). 
 447  See  Comments  of  Cinergy  to  Supplemental  Comments  of  Consensus  Parties  at  19;  Comments  of 
 AMTA  to  Supplemental  Comments  of  Consensus  Parties  at  4;  Comments  of  Baltimore  to  Supplemental  Comments  of  Consensus  Parties  at  7;  Comments  of  Entergy  to  Supplemental  Comments  of  Consensus  Parties  at  29;  Comments 


 of  Scott  C.  Macintyre  to  Supplemental  Comments  of  Consensus  Parties  at  1;  Reply  Comments  of  Cinergy  to  Supplemental  Comments  of  Consensus  Parties  at  28;  Reply  Comments  of  Con-  Ed  to  Supplemental  Comments  of 
 Consensus  Parties  at  10;  letter,  dated  May  6,  2004,  from  Shirley  Fujimoto,  Council  for  Entergy  Corporation,  Consumers  Energy  and  Cinergy  Corporation,  to  John  Muleta  Chief,  Wireless  Telecommunications  Bureau,  Federal 
 Communications  Commission  (Entergy,  Consumers  and  Cinergy  May  6  Ex  Parte). 
 448  We  note  that,  because  we  are  affording  CII  licensees  a  special  status  because  of  their  safety-  related 
 communications,  we  believe  it  would  be  anomalous  to  allow  CII  licensees  to  convert  their  systems  to  CMRS  operation  in  which  communications  seldom  are  safety-  related.  Accordingly,  we  limit  our  definition  of  CII  to  those 


 (continued.) 
91
 Federal  Communications  Commission  FCC  04-  168 
 96 
 any  future  international  agreements.  471 
 4.  Cost  Responsibility 
 177.  Band  reconfiguration  will  be  costly.  We  believe,  however,  that  sole  reliance  on  Enhanced  Best  Practices  to  abate  unacceptable  interference  would  entail  a  continuing  expense  that  over  the  long 


 term  would  eclipse  the  admittedly  high  initial  cost  of  band  reconfiguration.  472  Under  the  Consensus  Proposal,  and  the  rules  that  we  adopt  today,  the  cost  of  band  reconfiguration  can  be  accommodated  to 
 successfully  address  the  critical  interference  problems  faced  by  public  safety  providers.  Moreover,  we  are  confident  that  Nextel  is  capable  of  fulfilling  its  central  role  in  achieving  this  result,  given  its  demonstrated 
 ability  to  bear  the  upfront  costs  of  band  reconfiguration.  473  The  record  does  not  reveal  any  effective  alternative  to  the  one  we  fashioned  here  either  by  band  reconfiguration  or  otherwise  to  solve  the  instant 
 problem.  No  other  spectrum  management  approach  provided  the  same  assurances  of  success.  Furthermore  the  plan  we  are  adopting  today  will  preserve  the  abilities  that  public  safety  licensees  are  likely  to  need  in 
 order  to  meet  their  increased  Homeland  Security  obligations. 
 178.  Under  the  band  reconfiguration  plan,  the  principle  cost  component  will  be  borne  by  Nextel,  which  will  pay  for  all  channel  changes  necessary  to  implement  the  reconfiguration.  474  Nextel  is 


 obligated  to  ensure  that  relocated  licensees  receive  at  least  comparable  facilities  when  they  change  channels.  475  Moreover,  a  licensee  electing  to  relocate  to  the  ESMR  block  voluntarily,  must  receive  clear, 
 incumbent-  free  replacement  spectrum.  Thus,  Nextel  shall  be  responsible  for  the  clearance  of  any  incumbents  affecting  the  replacement  channel.  If  disputes  arise  concerning  the  cost  allocation,  the  matter 
 may  be  referred  to  the  Transition  Administrator  for  resolution;  and,  failing  that,  to  the  Chief  of  the  Wireless  Telecommunications  Bureau  for  de  novo  review.  476 


 a.  Relocation  Costs  and  Remuneration 
 179.  The  Consensus  Parties  estimated  the  cost  of  reconfiguring  the  800  MHz  band  at  $850  million.  Nextel  committed  to  pay  up  to  that  amount  conditioned  on  Commission  approval  of  the 


 Consensus  Plan  without  material  change.  477  We  conclude,  however,  that  we  cannot  reasonably  cap  the  amount  required  for  band  reconfiguration  if  completing  the  reconfiguration  process  requires  more  than 


 471  In  the  event  that  the  requisite  border  area  agreements  are  not  reached  within  thirty-  six  months  of  the 
 release  date  of  the  Public  Notice  announcing  the  start  of  reconfiguration  of  the  first  NPSPAC  Region,  Nextel  shall  elect  to  extend  the  life  of  the  letter  of  credit  or  secure  a  separate  letter  of  credit  for  a  sum  of  money  equal  to  that 


 which  would  have  been  incurred  had  the  Commission  band  plan  been  implemented  along  the  borders  without  regard  to  international  agreements. 


 472  See    120-  121  supra. 
 473  See    29  supra.  See  also  n.  478  infra. 
 474  We  note  that  800  MHz  licensees  may  divide  relocation  costs  with  Nextel  if  they  so  choose.  For 
 instance,  we  observe  that  Southern  LINC  and  Nextel  are  working  on  an  agreement  whereby  costs  for  relocating  Southern  LINCs  facilities  may  be  divided  between  the  two  parties.  See    164-  168  supra. 


 475  See    201  infra. 
 476  See    194  infra. 
 477  Supplemental  Comments  of  the  Consensus  Parties  at  iv-  v. 
96
 Federal  Communications  Commission  FCC  04-  168 
 97 
 $850  million.  478  First,  as  discussed  above,  our  band  reconfiguration  plan  differs  from  that  of  the  Consensus  Parties,  most  particularly  with  respect  to  considerations  affecting  efficient  use  of  the  spectrum. 
 In  light  of  these  changes,  we  place  less  reliance  on  the  assumptions  Nextel  made  when  it  estimated  the  cost  of  band  reconfiguration.  We  did  not  undertake  an  ab  initio  analysis  of  the  cost  of  band  reconfiguration  but 
 instead  carefully  analyzed  the  data  contained  in  the  record.  In  that  regard  we  have  taken  careful  notice  of  certain  sensitive  assumptions  in  Nextels  analysis,  which,  if  varied  by  only  a  few  percent,  greatly  affect 
 Nextels  cost  estimate.  479  The  one  certainty  that  we  derive  from  our  analysis  is  that  it  would  be  unwise  in  the  extreme  to  proceed  with  band  reconfiguration  without  making  it  clear  that  Nextel  is  obligated  to  cover 
 the  entire  cost  thereof,  with  no  cap.  480  Thus,  if  we  accepted  any  cap  on  Nextels  reconfiguration  cost  obligations  and  its  estimates  proved  low  i.  e.,  if  we  capped  costs  at  $850  million  and  that  amount  was 
 exhausted  before  the  completion  of  nationwide  band  reconfiguration  a  balkanized  800  MHz  band  would  likely  result,  in  which  public  safety  agencies  in  one  section  of  the  country  would  operate  pursuant  to  a 
 revised  band  plan  and  other  agencies  would  operate  pursuant  to  the  current,  interference-  ridden,  band  plan.  This  could  seriously  diminish  public  safety  interoperability  between  NPSPAC  Regions,  and  could  also 
 impair  the  ability  of  non-  NPSPAC  public  safety  systems  to  develop  interoperable  networks.  We  also  observe  that  the  Consensus  Parties  themselves  admit  the  possibility  that  $850  million  may  prove 
 inadequate.  481  Thus,  when  discussing  the  assurance  that  the  exhausted  funds  would  not  result  in  a  half-reconfigured  800  MHz  band,  they  state  that:  no  incumbent  licensees  will  be  required  to  relocate  within  a 
 Region  unless  funding  is  available  for  all  licensee  relocations  required  in  that  Region.  482  While  this  addresses  the  possibility  of  the  incomplete  reconfiguration  of  a  single  Region,  the  Consensus  Parties  are 
 silent  on  the  greater  hazard  resulting  from  the  funds  evaporating  before  the  reconfiguration  of  all  Regions:  e.  g.,  a  negative  effect  on  inter-  region  interoperability. 


 b.  Continued  Availability  of  Funds 
 180.  In  the  NPRM,  the  Commission  sought  comment  on  how  to  guarantee  the  availability  of  funding  to  complete  the  reconfiguration  of  the  800  MHz  band  regardless  of  the  financial  status  of  the 


 contributing  party  or  parties.  483  In  response,  parties  suggested  how  to  ensure  the  completion  of  band  reconfiguration  notwithstanding  the  inability  of  the  funding  entity  to  continue  to  furnish  funds  for  reasons 
 of  bankruptcy  or  otherwise.  484  The  Consensus  Parties,  for  example,  initially  proposed  that  Nextel  could  secure  its  ability  to  fund  retuning  costs  by  setting  up  a  separate  corporate  entity  to  hold  assets  securing  the 
 Nextel  funding  obligation.  The  stock  of  the  entity  would  be  pledged  to  an  escrow  agent/  trustee,  with  the  power  to  sell  the  assets  and  hold  the  cash  proceeds  in  escrow  for  the  benefit  of  the  Fund  Administrator  in 


 478  We  take  this  step  pursuant  to  Section  4(  i)  of  the  Communications  Act.  47  U.  S.  C.    154(  i). 
 479  See  n.  489  infra. 
 480  This  is  consistent  with  the  Commissions  actions  in  the  Upper  200  and  Microwave  Relocation 
 proceedings.  See  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems  in  the  800  MHz  Frequency  Band,  PR  Docket  No.  93-  144  and  Amendment  to  the  Commissions  Rules 


 Regarding  a  Plan  for  Sharing  Costs  of  Microwave  Relocation,  WT  Docket  No.  95-  157. 
 481  Supplemental  Comments  of  the  Consensus  Parties  at  6  (noting  estimate  of  total  costs  for  relocating 
 public  safety  licensees  is  subject  to  several  significant  variables  such  as  the  number  of  total  radios  which  will  need  to  be  replaced). 


 482  See  Supplemental  Comments  of  the  Consensus  Parties  at  12. 
 483  See  NPRM,  17  FCC  Rcd  at  4899    45. 
 484  See,  e.  g.,  Supplemental  Comments  of  the  Consensus  Parties  at  8;  Nextel  Nov  3  Ex  Parte. 
97
 Federal  Communications  Commission  FCC  04-  168 
 98 
 the  event  Nextel  failed  to  meet  its  payment  obligations.  485  However,  this  proposal  was  superseded  on  November  3,  2003,  when  Nextel  committed  to  deposit  $100  million  in  cash  into  an  escrow  account  created 
 and  designated  for  paying  800  MHz  band  reconfiguration  costs  pursuant  to  the  Consensus  Plan  and  securing  up  to  an  additional  $750  million  for  this  purpose  through  an  irrevocable  stand-  by  letter  of 
 credit.  486  Nextel  claims  that  this  proposal  would  insulate  band  reconfiguration  funds  from  any  financial  reversals  that  Nextel  might  encounter,  including  bankruptcy.  487 


 181.  Nextels  escrow  deposit  and  irrevocable  stand-  by  letter  of  credit  appear  better  capable  of  assuring  continued  relocation  funding  than  the  Consensus  Parties  earlier  proposal,  although  we  prefer  to 
 rely  solely  on  the  Letter  of  Credit.  However,  we  remain  mindful  of  those  parties  who  questioned  the  Consensus  Plan  cost  estimates,  both  with  respect  to  the  number  of  systems  that  would  have  to  be  relocated 
 and  whether  equipment  in  those  systems  could  be  retuned  or  would  have  to  be  replaced.  488  We  also  recognize  that  even  small  errors  in  certain  sensitive  parameters  could  dramatically  increase  total  relocation 
 costs.  489  We  are  therefore  faced  with  the  question  of  who  should  assume  the  risk  if  relocation  cost  projections  prove  to  be  inadequate:  Nextel,  which  made  the  estimates,  or  the  public,  which  would  suffer 
 the  consequences  of  incomplete  implementation  of  a  nationwide  800  MHz  band  plan.  In  resolving  that  question,  we  note  that  Nextel  has  stated  that  it  is  highly  confident  in  the  accuracy  of  its  estimates,  which 
 suggests  that  it  perceives  little  risk  in  assuming  the  entire  band  reconfiguration  obligation.  However,  we 


 485  See  Supplemental  Comments  of  the  Consensus  Parties  at  8. 
 486  See  Nextel  Nov.  3  Ex  Parte  at  3. 
 487  See  id.  at  3;  Supplemental  Comments  of  the  Consensus  Parties  at  7-  8;  cf.  NPRM,  17  FCC  Rcd  at  4899 
   45  (seeking  comment  on  safeguards  to  guarantee  that  the  then  state  of  finances  of  a  contributing  party  or  parties  would  not  hinder  the  completion  of  band  reconfiguration). 


 488  See  Comments  of  Mobile  Relay  Associates  to  Supplemental  Comments  of  the  Consensus  Parties  at  6; 
 (no  way  to  determine  whether  Consensus  Plan  adequately  estimates  overall  funding  needs);  Comments  of  Border  Area  Coalition  to  Supplemental  Comments  of  the  Consensus  Parties  at  12  (Consensus  Plan  does  not  take  into 


 account  additional  costs  that  border  area  licensees  would  incur);  Comments  of  Small  Business  in  Telecommunications  to  Supplemental  Comments  of  the  Consensus  Parties  at  2-  4  (questioning  estimate  of  $17,000 
 per  channel  for  relocation  and  $12,000  per  channel  for  rebanding.).  See  also  Comments  of  CTIA  to  Supplemental  Comments  of  the  Consensus  Parties  at  10  and  Comments  of  Michigan  DIT  to  Supplemental  Comments  of  the 
 Consensus  Parties  at  3  (Consensus  Plan  underestimates  number  of  small  public  safety  systems  that  would  be  relocated). 


 489  Nextels  estimates  are  based  on  replacing  one  percent  of  public  safety  portable  and  mobile  radios. 
 However,  the  City  and  County  of  San  Diego  provided  estimates  that  more  than  thirty  percent  of  its  units  would  have  to  be  replaced.  See  Comments  of  San  Diego  to  Supplemental  Comments  of  the  Consensus  Parties  at  12-  13. 


 Subsequently,  Nextel  filed  a  letter  stating  that  the  San  Diego  estimates  were  overstated;  but  that,  nonetheless,  more  than  one  percent  of  the  units  in  the  San  Diego  system  would  have  to  be  replaced.  See  Letter,  dated  February  20, 
 2004,  from  Larry  Krevor,  Esq.,  Nextel  to  Michael  Wilhelm,  Esq.  Public  Safety  and  Critical  Infrastructure  Division,  Wireless  Telecommunications  Bureau,  Federal  Communications  Commission.  The  San  Diego  system  may  not  be 
 representative  inasmuch  as  it  was  constructed  in  1991  and  is  still  using  radios  of  that  vintage.  See  also,  e.  g.  Reply  Comments  of  ALLTEL  et.  al.  to  Supplemental  Comments  of  the  Consensus  Parties  at  6-  7  (the  cost  of  receiver 
 replacement  increases  $78  million  for  every  one  percent  increase  in  number  of  receivers  that  must  be  replaced.)  See  also  Comments  of  Verizon  Wireless  to  Supplemental  Comments  of  the  Consensus  Parties  at  10  and  Comments 
 of  Preferred  Communications  to  Supplemental  Comments  of  the  Consensus  Parties  at  9-  10  (Questioning  Consensus  Plan  estimate  that  one  percent  of  public  safety  receivers  would  need  to  be  replaced)  Comments  of  Ameren  to 
 Supplemental  Comments  of  the  Consensus  Parties  at  5  (Consensus  Plan  proposal  of  $150  million  to  relocate  B/  ILT  incorrectly  assumes  that  relocation  would  only  require  the  replacement  of  only  five  percent  of  B/  ILT  equipment). 
98
 Federal  Communications  Commission  FCC  04-  168 
 99 
 also  believe  it  is  important  to  protect  against  the  risk  of  Nextel  experiencing  an  unanticipated  financial  crisis  or  insolvency  that  would  impair  its  ability  to  fully  fund  relocation. 
 182.  Because  the  Commission  Plan  requires  Nextel  to  shoulder  a  greater  financial  obligation  than  the  financial  obligation  envisioned  in  the  Consensus  Plan,  we  will  require  Nextel  to  increase  the 
 amount  of  money  irrevocably  available  to  ensure  completion  of  band  reconfiguration.  Specifically,  we  will  require  Nextel  to  provide  an  irrevocable  letter  of  credit  securing  $2.5  billion.  490  This  letter  of  credit 
 will  serve  as  the  funding  source  for  the  costs  involved  in  reconfiguring  the  800  MHz  systems  for  non-Nextel  licensees  and  possibly  as  the  source  for  any  payment  to  the  United  States  Treasury.  491  Nextel  must 
 directly  pay  its  own  relocation  costs  as  well  as  such  obligations  such  as  the  reimbursement  of  UTAM,  the  relocation  of  BAS  incumbents  and  the  compensation  of  the  Transition  Administrator  and  the  Letter  of 
 Credit  Trustee.  We  have  provided  a  model  letter  of  credit  at  Appendix  E,  infra,  and  expect  that  the  letter  of  credit  will  be  issued  in  substantially  the  same  form  set  forth  therein.  492  While  we  require  that  only  one 
 financial  institution,  acceptable  to  the  Commission,  493  issue  the  letter  of  credit,  we  have  no  objection  to  the  indirect  participation  of  other  financial  institutions,  acceptable  to  the  Commission,  if  necessary.  494 


 183.  As  described  more  fully  at    198-  200  supra,  the  Trustee  will  draw  upon  the  letter  of  credit  those  funds  necessary  to  accomplish  band  reconfiguration.  As  part  of  the  process  by  which  the 
 Transition  Administrator  will  certify  that  band  reconfiguration  in  a  particular  NPSPAC  region  is  complete  or  at  Nextels  reasonable  request,  the  Transition  Administrator  will  evaluate  the  sum  remaining 
 available  under  the  initial  letter  of  credit  and  any  subsequent  letter(  s)  of  credit  issued  pursuant  to  this  Report  and  Order.  If,  at  any  time,  the  Transition  Administrator  documents  that  the  letter(  s)  of  credit  does 
 not  retain  sufficient  undrawn  funds  to  ensure  completion  of  band  reconfiguration,  Nextel  will  be  required  to  open  an  additional  letter  of  credit.  If,  however,  the  Transition  Administrator  documents  that  the  letter(  s) 


 490  We  emphasize  that  the  required  $2.5  billion  security  is  not  a  "cap"  on  Nextel's  obligations  hereunder, 
 whether  for  800  MHz  band  reconfiguration  or  1.9  GHz  band  clearance.  We  further  emphasize  that  this  determination  does  not  represent  a  finding  by  the  Commission  that  800  MHz  band  reconfiguration  can,  in  fact,  be 


 accomplished  for  $2.5  billion. 
 491  See    186  infra. 


 492  The  model  letter  of  credit  provides  that  the  letter  will  be  issued  for  five  years  unless  it  contains  an 
 evergreen  clause.  If  such  a  clause  is  included  in  the  letter  of  credit  and  the  issuing  institution  gives  notice  of  non-renewal,  Nextel  shall  ensure  that  a  replacement  letter  is  issued  no  later  than  thirty  days  prior  to  the  expiration  date 


 of  the  letter  of  credit.  A  failure  to  do  so  shall  entitle  the  Commission  to  instruct  the  Trustee  to  make  a  draw  on  the  letter  of  credit  for  the  entire  remaining  balance  thereof. 


 493  A  bank  that  is  acceptable  to  the  Commission  to  issue  the  Letter  of  Credit  is  a)  any  United  States  Bank 
 that  (i)  is  among  the  50  largest  United  States  banks,  determined  on  the  basis  of  total  assets  as  of  December  31,  2003,  (ii)  whose  deposits  are  insured  by  the  Federal  Deposit  Insurance  Corporation,  and  (iii)  has  a  long-  term 


 unsecured  credit  rating  issued  by  Standard  &  Poors  of  A-  or  better  (or  an  equivalent  rating  from  another  nationally  recognized  credit  rating  agency);  and  b)  any  non-  U.  S.  bank  that  (i)  is  among  the  50  largest  non-  U.  S.  banks  in  the 
 world,  determined  on  the  basis  of  total  assets  as  of  December  31,  2003  (determined  on  a  U.  S.  dollar  equivalent  basis  as  of  such  date),  (ii)  has  a  branch  office  in  New  York  City  or  such  other  branch  office  agreed  to  by  the 
 Commission,  (iii)  has  a  long-  term  unsecured  credit  rating  issued  by  a  widely-  recognized  credit  rating  agency  that  is  equivalent  to  an  A-  or  better  rating  by  Standard  &  Poors,  and  (iv)  issues  the  Letter  of  Credit  payable  in  United 
 States  dollars.  Should  the  banks  credit  rating  fall  below  A-  or  equivalent  rating,  the  Commission  may  require  Nextel  to  procure  the  issuance  of  a  letter  of  credit  in  an  amount  equivalent  to  that  remaining  on  the  current  letter  of 
 credit  by  a  bank  that  meets  the  criteria  set  forth  herein. 
 494  Id. 
99
 Federal  Communications  Commission  FCC  04-  168 
 100 
 of  credit  secures  funds  in  excess  of  those  needed  to  ensure  completion  of  band  reconfiguration,  Nextel  will  be  allowed  to  reduce  the  amount  of  the  letter(  s)  of  credit.  At  no  point,  however,  will  the  Transition 
 Administrator  allow  Nextel  to  reduce  the  total  aggregate  secured  by  the  letter(  s)  of  credit  below  $850  million.  We  believe  that  allowing  reductions  in  the  letter(  s)  of  credit  will  relieve  Nextel  of  an  unnecessary 
 financial  burden  and  anticipate  that  Nextel  may  use  the  monies  freed  by  the  reduction  to  improve  or  expand  its  network,  including  its  operations  in  the  1.9  GHz  band.  This  would  not  only  improve  its  service 
 to  the  public,  but  the  revenues  derived  from  this  improved  service  would  strengthen  its  financial  position  and  serve  as  an  additional  hedge  against  financial  reversals  that  might  affect  band  reconfiguration.  At  the 
 conclusion  of  the  true-  up  process,  including  securing  the  funds  necessary  to  ensure  reconfiguration  of  the  band  in  border  areas,  Nextels  obligation  to  provide  security  for  the  cost  of  800  MHz  band  reconfiguration 
 shall  terminate  and  the  letter(  s)  of  credit  will  terminate.  495 
 184.  The  letter(  s)  of  credit  shall  specify  a  trustee,  acceptable  to  the  Commission,  as  the  beneficiary,  which  shall  administer  the  funds  from  the  letter  of  credit  and  receive  the  funds  from  the  letter 


 of  credit  in  the  event  of  a  Nextel  default.  Nextel  and  the  Letter  of  Credit  Trustee  shall  formalize  the  terms  of  their  relationship  with  a  written  contract  and/  or  a  trust  deed,  drafts  of  which  shall  be  submitted  for 
 Commission  final  review  and  approval.  496  On  the  occasion  of  a  material  breach  by  Nextel  of  its  obligations  hereunder,  as  declared  by  the  Commission,  said  trustee  shall  be  entitled  to  draw  on  the  letter  of 
 credit  as  specified  in  such  instrument.  The  funds  shall  be  devoted  to  reconfiguration  of  the  800  MHz  band  and  possibly  payment  to  the  United  States  Treasury.  497  Neither  the  Transition  Administrator  nor  the  Letter 
 of  Credit  Trustee  will  be  compensated  from  funds  available  under  the  letter  of  credit,  but  will  be  compensated  directly  by  Nextel. 


 185.  If  Nextel  is  unable  or  unwilling  to  fulfill  its  obligations  pursuant  to  this  Report  and  Order,  the  Commission  can  approve  the  use  of  letter  of  credit  funds  to  compensate  the  Transition  Administrator 
 and  the  Letter  of  Credit  Trustee  for  their  services.  The  trustee  shall  stand  as  a  fiduciary  to  the  Commission.  Letter  of  credit  funds  shall  be  applied  first  to  band  reconfiguration  of  non-  Nextel  licensees;  and  then  to  the 
 relocation  of  Nextels  facilities  as  required  to  conform  to  the  new  800  MHz  band  plan.  Should  the  funds  be  insufficient  to  complete  relocation  of  Nextels  facilities,  the  licenses  of  un-  relocated  Nextel  facilities 
 shall  automatically  revert  to  secondary  status.  Pursuant  to  such  secondary  status,  such  unfinished  Nextel  facilities  must  not  interfere  with,  and  must  accept  interference  from,  any  other  800  MHz  licensee. 


 186.  As  described  in  paragraph  330  infra,  the  Wireless  Telecommunications  Bureau  will  issue  a  Public  Notice  specifying  the  amount  that  Nextel  will  pay  the  United  States  Treasury.  If  Nextel  does  not 
 make  payment  of  any  amount  that  it  owes  within  thirty  days  of  issuance  of  this  Public  Notice,  the  amount  Nextel  owes  will  be  paid  from  the  letter(  s)  of  credit.  If  the  letter(  s)  of  credit  do  not  secure  sufficient  funds, 
 then,  in  addition  to  debt  collection  remedies  that  the  government  may  employ,  the  Commission  will  determine  whether  forfeitures  should  be  imposed  and/  or  whether  Nextel  licenses,  included,  but  not  limited 
 to  its  1.9  GHz  licenses,  should  be  revoked. 
 187.  Because  the  Commission  does  not  engage  in  deciding  debtor-  creditor  matters,  including 


 495  See  Appendix  E  Annex  C,  infra  (Termination  of  Letter  of  Credit  form). 
 496  The  contract  will  authorize  the  formation  of  the  800  MHz  Relocation  Trust  and  the  corpus  of  the 
 trust  will  be  the  letter  or  letters  of  credit  issued  pursuant  to  the  terms  of  this  Order.  The  trust  will  be  permitted  to  receive  and  hold  draws  under  the  letter  of  credit  to  facilitate  multiple  payments  to  particular  licensees,  vendors, 


 contractors,  etc.,  to  pay  for  approved  relocation  costs.  An  outline  of  the  key  terms  envisaged  by  the  Commission  are  attached  hereto  as  Appendix  E-  Annex  D. 


 497  See    186,  329-  332  infra. 
100
 Federal  Communications  Commission  FCC  04-  168 
 101 
 those  relating  to  bankruptcy,  we,  inter  alia,  will  not  permit  Nextel  to  operate  within  the  1.9  GHz  band  without  first  providing  the  Commission  with  a  legal  opinion  letter,  at  Nextels  cost,  from  bankruptcy 
 counsel  chosen  by  Nextel.  This  restriction  is  a  condition  of  Nextels  modified  license.  In  order  to  meet  this  condition,  the  opinion  letter  must  clearly  state,  subject  only  to  customary  assumptions,  limitations  and 
 qualifications,  that  in  a  proceeding  under  Title  11  of  the  United  States  Code,  11  U.  S.  C.  Section  101  et  seq.  (the  Bankruptcy  Code),  in  which  Nextel  is  the  debtor,  the  bankruptcy  court  would  not  treat  the  Letter  of 
 Credit  or  proceeds  of  the  Letter  of  Credit  as  property  of  Nextels  bankruptcy  estate  under  Section  541  of  the  Bankruptcy  Code.  The  scope  of  the  opinion  letter  must  also  cover  such  other  opinions  as  the 
 Commission  shall  request.  The  opinion  letter  must  contain  detailed  legal  analysis  of  the  basis  of  counsels  opinion.  A  draft  opinion  letter  must  be  submitted  for  review  and  approval  by  the  Commissions  Office  of 
 General  Counsel  prior  to  issuance  of  the  opinion.  Bankruptcy  counsel,  and,  if  applicable,  counsels  firm,  must  have  a  Martindale-  Hubbell  rating  of  A/  V  and  must  satisfy  the  Commission  in  all  other  respects. 


 5.  Logistics  of  Band  Reconfiguration 
 188.  In  the  NPRM,  the  Commission  acknowledged  that  any  band  restructuring  proposal  would  require  incumbents  to  relocate.  498  We  therefore  sought  comment  on  how  to  implement  reconfiguration  of 


 the  800  MHz  band  with  minimum  disruption  to  incumbent  licensees.  We  did  not  endorse  or  propose  any  specific  transition  plan,  but  instead  sought  comment  on  several  proposals  that  would  help  inform  our 
 decision  regarding  relocation  and  which  reflected  our  underlying  goal  that  relocation  plans  should  appropriately  balance  the  interests  of  all  licensees. 


 189.  In  the  NPRM,  the  Commission  sought  comment  on  the  best  mechanism  to  collect  and  administer  funds  and  to  resolve  disputes  with  respect  to  the  relocation  of  public  safety  systems.  499  The 
 Consensus  Parties  recommend  creation  of  a  five  member  Relocation  Coordination  Committee  (RCC)  to  oversee  the  relocation  process.  500  For  example,  the  RCC  would  first  prioritize  the  NPSPAC  regions  for 
 relocation  according  to  population  and  greatest  incidence  of  interference.  501  They  also  proposed  a  Planning  Committee  separate  from  the  RCC  to  review  each  new  relocation  channel  assignment  to 
 ensure  that  the  relocated  licensee  would  not  cause  or  receive  unacceptable  co-  channel  interference  on  the  new  channel(  s).  502  The  RCC  certification  of  a  relocation  plan  would  trigger  a  mandatory  nine-  month 
 negotiation  period  between  affected  licensees  and  Nextel.  503  If  an  agreement  were  not  reached  by  the  end  of  the  nine-  month  period,  the  parties  would  submit  to  binding  arbitration  by  an  RCC-  established 
 arbitration  panel.  504  The  RCC  would  be  certified  as  a  frequency  coordinator  by  the  Commission  and  after  selecting  channels  for  a  relocated  system  and  obtaining  approval  of  the  relevant  frequency 
 coordinator  would  file  the  applications  with  the  Commission.  They  also  proposed  cancellation  of  the 


 498  See  NPRM,  17  FCC  Rcd  at  4891    31. 
 499  Id.  at  4898    45. 
 500  See  Supplemental  Comments  of  the  Consensus  Parties  at  14-  17. 
 501  Id.  at  16.  Appendix  E  of  the  Supplemental  Comments  of  the  Consensus  Parties  provides  a  sample 
 prioritization  scheme. 
 502  Id.  at  18. 


 503  Id.  at  21. 
 504  Id.  at  21-  22. 
101
 Federal  Communications  Commission  FCC  04-  168 
 102 
 licenses  of  any  licensee  that  failed  to  relocate  within  thirteen  months,  absent  special  circumstances.  505 
 a.  Transition  Administrator 
 190.  In  the  NPRM,  the  Commission  sought  comment  on  the  best  mechanism  to  collect  and  administer  funds  and  to  resolve  disputes  with  respect  to  the  relocation  of  public  safety  systems.  506  No 


 other  party  filed  a  proposal  giving  details  of  how  its  band  plan  would  be  implemented;  although  several  commenting  parties  criticized  the  Consensus  Parties  implementation  plan  as  excessively  Nextel-  centric  and 
 unduly  complex.  507  We  are  in  general  agreement  with  the  parties  who  raised  those  issues.  Although  we  fully  appreciate  the  significant  effort  that  band  reconfiguration  will  entail,  we  believe  the  administrative 
 structure  proposed  by  the  Consensus  Parties  would  delay,  rather  than  facilitate,  timely  completion  of  band  reconfiguration.  Moreover,  we  are  sensitive  to  the  comments  of  those  parties  who  expressed  concern 
 about  the  potential  conflict  of  interest  inherent  in  the  proposed  RCC  and  questioned  whether  the  Commission  could  legally  grant  the  RCC  the  powers  envisioned  by  the  Consensus  Parties.  508 


 191.  Accordingly,  we  believe  that  using  an  independent  individual  or  company,  who,  or  which,  will  serve  as  a  Transition  Administrator  subject  to  oversight  by  the  Commission  is  the  best  approach  for 
 ensuring  that  band  reconfiguration  proceeds  on  schedule.  The  Transition  Administrator  may  also  serve  to  mediate  disputes  that  may  arise  in  the  course  of  band  reconfiguration.  509  As  contemplated  by  the 
 Consensus  Parties  in  their  proposal  for  a  RCC,  Nextel  will  pay  for  the  services  of  the  Transition  Administrator  and  staff  as  one  of  the  transactional  costs  borne  by  Nextel  in  connection  with  band 
 reconfiguration.  We  will  follow  a  selection  process  similar  to  that  suggested  by  the  Consensus  Parties;  i.  e.,  the  Transition  Administrator  will  be  an  independent  party  with  no  financial  interest  in  any  800  MHz 
 licensee;  and  will  be  selected  by  a  committee  representative  of  800  MHz  licensees.  We  direct  the  following  organizations  to  designate  a  representative  to  serve  on  the  search  committee  for  the  Transition 


 505  Id.  at  24. 
 506  See  NPRM,  17  FCC  Rcd  at  4998-  99    45. 
 507  See,  e.  g.,  Comments  of  Carolina  Power  and  Light  to  Supplemental  Comments  of  the  Consensus  Parties 
 at  3,  7-  8;  Comments  of  Cinergy  to  Supplemental  Comments  of  the  Consensus  Parties  at  16;  Comments  of  Consumers  Energy,  Inc.  to  Supplemental  Comments  of  the  Consensus  Parties  at  25-  26. 


 508  See,  e.  g.,  Comments  of  Alliant  Energy  to  Supplemental  Comments  of  the  Consensus  Parties  at  3, 
 Comments  of  Ameren  Corp.  to  Supplemental  Comments  of  the  Consensus  Parties  at  12-  13,  Comments  of  Boeing  to  Supplemental  Comments  of  the  Consensus  Parties  at  25-  26. 


 509  We  will  make  this  appointment  pursuant  to  the  authority  given  to  us  under  Section  4(  i)  of  the  Act.  See 
 47  U.  S.  C.    154(  i).  The  Commission  has  used  similar  third-  party  solutions  in  the  past.  In  1994,  the  Commission  appointed  an  independent,  non-  governmental  entity,  UTAM,  as  the  coordinating  body  to  oversee  the  transition 


 from  fixed  microwave  operations  to  UPCS  and  to  manage  the  transition  to  full  band  clearing.  See  Amendment  of  the  Commissions  Rules  to  Establish  New  Personal  Communications  Services,  Memorandum  Opinion  and  Order,  9 
 FCC  Rcd  at  4957    209  (1994).  In  1996,  the  Commission  appointed  the  Personal  Communications  Industry  Association  (PCIA)  and  the  Industrial  Telecommunications  Association,  Inc.  (ITA),  two  private  non-  governmental 
 entities,  to  administer  the  microwave  clearinghouse  cost-  sharing  plan.  See  Amendment  of  the  Commission's  Rules  Regarding  a  Plan  for  Sharing  the  Costs  of  Microwave  Relocation,  WT  Docket  No.  95-  157,  Memorandum  Opinion 
 and  Order,  11  FCC  Rcd  9394  (WTB  1996). 
102
 Federal  Communications  Commission  FCC  04-  168 
 106 
 are  made  at  Nextels  expense,  e.  g.  moving  public  safety  systems  out  of  the  Expansion  Band.  517 
 We  envision  system  relocation  involving  the  following  steps: 
 1)  The  Transition  Administrator  notifies  a  licensee  that  its  system  needs  to  be  relocated  in  order  to  complete  band  reconfiguration.  The  Transition  Administrator  will  specify  a  replacement  channel 


 for  each  channel  in  the  licensees  system  that  needs  to  be  changed  to  a  new  channel.  517A 
 2)  The  licensee  obtains  an  estimate  of  the  cost  to  reconfigure  its  system  and  provides  that  estimate  to  the  Transition  Administrator.  The  submission  to  the  Transition  Administrator  shall  contain  the 


 licensees  certification  that  the  funds  requested  are  the  minimum  necessary  to  provide  facilities  comparable  to  those  presently  in  use. 


 3)  The  Transition  Administrator  will  review  the  estimate  including  an  analysis  to  ensure  that  the  estimate  does  not  exceed  the  cost  of  providing  comparable  facilities.  If  the  review  indicates  the 
 need  for  additional  support,  or  is  otherwise  deficient,  the  licensee  will  be  so  informed  and  will  be  required  to  furnish  a  revised  estimate. 


 4)  The  Transition  Administrator  will  submit  the  estimate  to  Nextel,  which  will  have  the  opportunity  to  review  the  details  of  the  estimate  and,  if  appropriate,  dispute  the  estimate. 
 5)  The  Transition  Administrator  will  facilitate  resolution  of  any  such  disputes,  acting  as  an  intermediary  between  the  licensee  and  Nextel.  We  envision  that  all  licensees  will  exercise  good 
 faith  and  we  strongly  encourage  licensees  to  cooperate  in  resolving  disputes  so  as  not  to  unreasonably  frustrate  band  realignment.  518 


 6)  Once  Nextels  concurrence,  which  shall  not  unreasonably  be  withheld,  has  been  obtained,  the  Transition  Administrator  will  issue  a  Draw  Certificate  to  the  Letter  of  Credit  Trustee  who  will 
 draw  down  funds  as  appropriate  from  the  letter  of  credit  and  disburse  them,  in  accordance  with  the  Transition  Administrators  instructions,  to  the  entity(  ies)  contracted  to  reconfigure  the  system  (for 
 example,  the  licensee,  a  local  contractor  and  an  equipment  manufacturer  Nextel  personnel  will  not  be  involved  in  reconfiguring  a  licensees  system.  519  ) 


 7)  At  the  conclusion  of  system  configuration  the  Transition  Administrator  will  audit  the  amount  expended  and  either  issue  a  second  Draw  Certificate  to  the  Letter  of  Credit  Trustee  to  cover  any 
 reasonable  expenditures  reasonably  agreed  to  by  Nextel  and  the  licensee  that  were  not  covered  by  the  first  Draw  Certificate  or  direct  the  Letter  of  Credit  Trustee  to  obtain  reimbursement  for  any 
 excess  funds  (with  any  disputes  as  to  final  amounts  to  be  resolved  following  the  dispute  resolution  procedures  set  forth  in    194. 


 8)  The  licensee  begins  operating  on  the  new  channel(  s). 


 517  In  this  regard,  we  will  allow  inter-  category  sharing  for  the  limited  purpose  of  this  proceeding.  See  47 
 C.  F.  R.    90.677  in  Appendix  C,  infra. 
 517A  Although  the  Transition  Administrator  will  specify  replacement  channels,  the  Transition 
 Administrator  is  not  necessarily  required  to  select  these  replacement  channels  itself.  The  Transition  Administrator  may  rely  on  a  third  party  or  parties  for  the  selection  of  replacement  channels. 


 518  Licensees  that  fail  to  act  in  good  faith  or  unreasonably  decline  to  cooperate  may  be  subject  to 
 enforcement  action. 
 519  The  Trustee  will  disburse  funds  in  accordance  with  the  Transition  Administrators  instructions  which 
 may  include  directions  to  pay  contractors  in  a  lump  sum  or  over  time  in  accordance  with  milestone  payments  set  forth  in  the  contractors  contract  with  the  licensee. 
106
 Federal  Communications  Commission  FCC  04-  168 
 110 
 We  have  done  so  with  the  knowledge  that  relocation  of  some  systems  will  not  require  information  to  that  degree  of  detail,  and  that  some  degree  of  flexibility  will  better  serve  the  parties.  The  overriding 
 requirement  of  our  framework  is  the  good  faith  requirement.  While  parties  must  first  bring  disputes  over  the  utmost  good  faith  requirement  to  the  Transition  Administrator,  disputing  parties  may  subsequently 
 bring  breaches  of  the  good  faith  requirement  to  the  Commission  and  similarly  bring  there,  any  instance  in  which  a  party  frivolously  or  without  substantiation,  charges  another  party  with  failure  to  negotiate  in  good 
 faith.  533  As  the  Commission  has  noted  previously  there  is  no  one  size  fits  all  rule  that  can  be  applied  to  the  good  faith  issue,  which  is  largely  fact-  dependent  and  likely  to  vary  from  case-  to-  case.  534 


 203.  We  also  have  heeded  the  concern  of  some  commenting  parties  that  information  relative  to  band  reconfiguration  could  be  sensitive  from  a  security  standpoint.  We  encourage,  but  do  not  require,  the 
 parties  and  the  Transition  Administrator  to  exercise  discretion  in  disclosing  any  security-  sensitive  information;  but  note  that  there  is  a  balance  between  the  publics  need  to  know  and  the  need  to  withhold 
 sensitive  information.  Thus,  for  example,  the  Commission  has  struck  the  balance  in  favor  of  public  disclosure  in  making  its  Universal  Licensing  System  (ULS)  data  available  on  the  Internet.  A  large  amount 
 of  information  on  existing  800  MHz  facilities  is  contained  in  the  ULS  and  the  ULS  also  will  contain  information  on  the  license  modifications  necessary  to  implement  band  reconfiguration.  Similarly,  we  are 
 not  persuaded  by  the  argument  that  furnishing  information  necessary  for  band  reconfiguration  would  somehow  result  in  a  competitor  gaining  access  to  information  it  could  use  to  its  advantage.  535  We  do  not 
 foresee  any  party  having  access  to  competitively-  sensitive  information  such  as  the  identity  and  other  details  of  an  incumbents  customers. 


 c.  Freeze  on  the  Acceptance  of  800  MHz  Applications 
 204.  The  Consensus  Parties  requested  that  we  freeze  the  acceptance  of  applications  for  800  MHz  public  safety,  non-  cellular  SMR  and  Business  and  Industrial/  Land  Transportation  authorizations 


 pending  band  reconfiguration.  536  We  strongly  agree  with  the  parties  who  point  out  the  adverse  effects  such  a  three-  year  freeze  could  have  on  their  companies  business  plans.  537  Nonetheless,  we  see  no  alternative 
 to  a  freeze  if  band  reconfiguration  is  to  be  timely  accomplished.  There  is  a  middle  ground,  given  the  incremental  implementation  of  band  reconfiguration  Region  by  Region.  Therefore  we  will  freeze  800 
 MHz  applications  for  a  region  when  we  issue  the  Public  Notice  announcing  the  date  when  voluntary  negotiation  of  relocation  agreements  must  be  concluded.  This  freeze  will  last  until  thirty  working  days 
 after  the  completion  of  mandatory  negotiations  for  a  given  Region.  538  However,  such  a  freeze  would  not  include  the  modification  applications  filed  in  order  to  implement  band  reconfiguration.  Moreover,  we  will 


 533  See,  e.  g.,  47  U.  S.  C.    312,  503. 
 534  See,  e.  g.,  Upper  200  SMR  Second  Report  and  Order,  12  FCC  Rcd  19079;  Petition  For  Declaratory 
 Ruling  Concerning  The  Requirement  For  Good  Faith  Negotiations  Among  Economic  Area  Licensees  And  Incumbent  Licensees  In  The  Upper  200  Channels  Of  The  800  MHz  Band,  Memorandum  Opinion  and  Order,  16 


 FCC  Rcd  4882  (2001)  (Good  Faith  MO&  O). 
 535  See  Supplemental  Comments  of  the  Consensus  Parties  at  Appendix  C,  C-  4-  5. 


 536  See  Supplemental  Comments  of  Consensus  Parties  at  26. 
 537  See,  e.  g.,  Letter,  dated  November  13,  2003,  from  R.  David  Laurrell,  County  Administrator,  County  of 
 Campbell,  Virginia  Board  of  Supervisors  to  Marlene  H.  Dortch,  Secretary,  Federal  Communications  Commission;  Comments  of  American  Electric  Power  Company,  Inc.  to  Supplemental  Comments  of  the  Consensus  Parties  at  9- 


 10. 
 538  The  mandatory  negotiation  period  essentially  ends  six  months  after  voluntary  negotiations  begin. 
110
 Federal  Communications  Commission  FCC  04-  168 
 111 
 do  everything  possible  to  minimize  the  effect  the  incremental  freezes  may  have  on  incumbent  licensees  and  new  applicants,  and  direct  the  Transition  Administrator  to  make  accommodations  in  the 
 implementation  plan  that  will  avoid  such  adverse  effects.  Moreover,  we  will  not  freeze  the  acceptance  of  modification  applications  that  do  not  change  the  frequency  or  expand  the  coverage  area  of  existing 
 systems.  Finally,  we  remind  potentially  affected  parties  of  the  availability  of  the  Commissions  waiver  process  and  Special  Temporary  Authorizations  when  needed  in  order  to  avoid  prejudice  to  any  applicant 
 during  the  band  reconfiguration  process. 
 d.  Tolling  of  800  MHz  Site-  Based  Construction  Requirements 
 205.  Since  the  800  MHz  band  reconfiguration  process  will  take  place  incrementally  in  fifty-  one  geographic  regions,  some  site-  based  incumbent  800  MHz  licensees  may  face  construction  deadlines  prior 


 to  their  being  scheduled  for  relocation.  539  To  resolve  this  issue  we  will  allow  licensees  which  are  ready  to  construct  and  waiting  only  for  assignment  of  their  new  channel  to  submit  a  waiver  request  demonstrating 
 that  they  have  commenced  construction,  e.  g.  have  on  hand,  or  have  placed  a  firm  order  for,  non  frequency-sensitive  equipment,  have  erected  a  tower,  obtained  a  commitment  for  tower  space,  etc. 


 206.  If  the  Transition  Administrator  has  specified  said  licensee  a  new  channel  and  the  licensee  can  immediately  use  the  channel  without  causing  interference  to  other  systems,  it  must  construct  within  its 
 currently  applicable  deadline.  Otherwise,  the  licensee  may  submit  a  waiver  request  for  extension  of  the  construction  period  until:  (a)  six  months  after  the  Transition  Administrator  has  specified  it  a  channel,  if 
 that  channel  can  be  used,  in  advance  of  band  reconfiguration  in  the  region,  without  causing  interference;  or  (b)  if  its  channel  cannot  be  activated  without  interference  to  other  systems,  six  months  after  the  completion 
 of  band  reconfiguration  in  its  NPSPAC  region.  The  Commissions  waiver  rules  540  will  apply  and  the  waiver  requests  will  be  evaluated  on  a  good  cause  basis  e.  g.  on  a  showing  by  the  licensee  that  it  would 
 have  constructed  but  for  the  fact  that  band  reconfiguration  would  affect  its  proposed  facilities.  Licensees  whose  construction  deadline  passed  before  the  release  of  this  Report  and  Order,  and  which  do  not  have  an 
 extension  of  time  request  already  pending,  will  have  a  particularly  high  evidentiary  standard  to  meet  when  they  submit  a  waiver  request.  These  provisions  also  apply  to  EA  licensees  facing  construction  deadlines 
 pursuant  to  Section  90.685  of  the  Commissions  Rules.  541 
 6.  Disposition  of  Nextels  900  MHz  SMR  and  700  MHz  Guard  Band  Block  B  Spectrum 


 207.  The  Consensus  Plan  contemplated  that,  at  the  end  of  band  reconfiguration,  Nextel  would  relinquish  its  rights  to  900  MHz  SMR  spectrum  as  an  incentive  for  non-  cellular  SMR  and  B/  ILT  licensees 
 to  vacate  800  MHz  band  channels  on  a  two  for  one  basis,  i.  e.  each  800  MHz  licensee  that  relocated  to  900  MHz  spectrum  would  get  rights  to  twice  the  spectrum  it  occupied  in  the  800  MHz  band.  542  We  are  not 
 persuaded  that  Nextels  abandoning  service  to  the  public  in  the  900  MHz  band  in  order  to  provide  non-cellular  SMR  and  B/  ILT  licensees  with  900  MHz  spectrum  for  which  there  is  no  demonstrated  need  is  in 
 the  public  interest.  We  are  further  dissuaded  from  accepting  Nextels  proffer  of  relinquishment  of  its  900  MHz  spectrum  rights  because  Nextel  likely  will  need  to  use  this  spectrum  to  accommodate  subscriber 


 539  For  example,  this  may  include  licensees  with  extended  implementation  authority,  new  licensees,  or 
 licensees  with  pending  requests  for  extension  of  current  authorization. 
 540  See  47  C.  F.  R.    1.925. 


 541  See  47  C.  F.  R.    90.685(  b). 
 542  See  Supplemental  Comments  of  the  Consensus  Parties  at  13. 
111
 Federal  Communications  Commission  FCC  04-  168 
 112 
 demand  during  800  MHz  band  reconfiguration;  and,  possibly  thereafter.  543  Even  if  the  900  MHz  spectrum  went  to  public  safety,  there  are  no  "rebanding"  benefits  to  using  this  spectrum  for  public  safety  because  it 
 is  isolated  from  the  consolidated  block  of  800  and  700  MHz  spectrum  that  will  be  available  for  public  safety  after  rebanding.  In  this  regard,  900  MHz  can  be  distinguished  from  the  700  MHz  Guard  Band 
 spectrum,  which  could  be  added  to  the  consolidated  block  if  we  decided  to  make  the  700  MHz  Guard  band  spectrum  available  for  public  safety  use.  From  an  interference  perspective,  our  decision  to  permit 
 operational  flexibility  (i.  e.  cellular  architecture)  in  the  900  MHz  band  effectively  precludes  use  of  900  MHz  by  public  safety  at  this  time.  544  While  public  safety  would  benefit  from  B/  ILT  and  SMR  licensees 
 relocating  to  900  MHz  as  it  would  provide  green-  space  in  the  800  MHz  band,  to  the  extent  Nextel  wants  to  offer  900  MHz  spectrum  to  B/  ILT  on  a  2-  for-  1  basis,  as  it  has  proposed,  it  can  do  so  through  private 
 transactions  without  returning  this  spectrum  to  the  Commission. 
 208.  As  noted  at  paragraph  61  supra,  Nextel  also  has  proposed  to  surrender  certain  700  MHz  guard  band  Block  B  spectrum,  which  it  holds  in  40  markets;  and  recommends  that  the  Commission 


 rededicate  that  spectrum  to  public  safety  use.  We  note  that  the  700  MHz  Guard  Bands  use  for  public  safety  applications,  as  proposed,  is  problematic.  The  700  MHz  Guard  Band  spectrum  was  established 
 specifically  to  buffer  700  MHz  public  safety  systems  from  interference  by  commercial  systems  operating  in  the  Upper  700  MHz  band.  It  would  be  anomalous  in  our  view,  to  place  public  safety  systems  in  the  very 
 interference-  prone  spectrum  that  we  established  to  protect  public  safety. 
 209.  We  nonetheless  will  accept  Nextels  700  MHz  Guard  Band  spectrum,  but  decline  to  redesignate  it  to  public  safety  use  at  this  time.  Instead,  we  will  consider  the  ultimate  disposition  of  this 


 spectrum  in  a  future  rule  making  proceeding.  In  this  connection,  we  note  that  there  are  several  potential  public  safety  and  public  interest  benefits  that  may  be  realized  by  a  redesignation  or  reassignment  of  the 
 700  MHz  Guard  Band  spectrum  that  Nextel  offers  to  relinquish.  However,  we  do  not  believe  that  the  ultimate  decision  on  how  best  to  use  the  surrendered  700  MHz  spectrum  should  be  resolved  in  the  context 
 of  this  Report  and  Order.  Rather,  any  such  decision  should  rest  on  a  record  developed  in  a  subsequent  rule  making  proceeding.  There,  we  may  consider  such  issues  as  whether  there  are  public  safety  applications 
 that  could  exist  satisfactorily  in  such  spectrum  consistent  with  our  statutory  authority;  whether  there  is  a  demand  for  additional  B/  ILT  spectrum  that  would  be  satisfied  by  access  to  the  700  MHz  Guard  Band 
 spectrum;  whether  providing  B/  ILT  licensees  access  to  such  spectrum  would  create  opportunities  for  public  safety  to  get  access  to  additional  800  MHz  band  frequencies;  whether  there  are  other,  new  uses  that 
 may  arise;  and  whether  the  700  MHz  Guard  Band  spectrum  should  be  re-  auctioned. 
 D.  Appropriate  Compensation  for  Band  Reconfiguration 
 210.  In  the  NPRM,  the  Commission  discussed  the  replacement  spectrum  construct  advanced  by  Nextel  in  its  White  Paper,  i.  e.,  that  if  Nextel  were  to  pay  the  cost  of  band  reconfiguration  and  vacate 


 certain  700  MHz,  800  MHz  and  900  MHz  spectrum,  it  should  be  compensated  on  a  megahertz  for  megahertz  basis  with  spectrum  nominally  in  the  2  GHz  range.  We  sought  comment  on  the  relative  value 
 of  the  spectrum  that  Nextel  proposed  to  surrender  vs.  the  value  of  its  desired  replacement  spectrum.  In  the  Consensus  Plan,  Nextel  proposed  that,  as  compensation  for  its  relinquishment  of  700,  800  and  900  MHz 


 543  Nextels  need  for  the  900  MHz  spectrum  may  arise  if  there  are  two  800  MHz  ESMR  licensees  in  a 
 market,  e.  g.  Nextel  and  Southern  LINC,  and  both  cannot  be  accommodated  in  the  817-  824  MHz  /  862-  869  MHz  cellular-  architecture  spectrum  segment.  In  that  instance,  Nextel  must  surrender  the  additional  spectrum  necessary 


 to  accommodate  the  non-  Nextel  cellular-  architecture  system.  The  800  MHz  spectrum  that  Nextel  loses  in  such  a  case  may  be  compensated  for  by  Nextel  shifting  some  of  its  operations  to  its  900  MHz  SMR  frequencies.  See   
 159  supra. 
 544  See    335-  337  infra. 
112
 Federal  Communications  Commission  FCC  04-  168 
 113 
 spectrum  rights  and  its  commitment  to  pay  800  MHz  incumbent  relocation  costs,  it  should  receive  a  nationwide  license  for  ten  megahertz  of  spectrum  in  the  1.9  GHz  band.  545  Other  parties  contend  that  the 
 value  of  the  spectrum  rights  Nextel  seeks  substantially  exceeds  the  value  of  spectrum  rights  it  has  offered  to  give  up,  and  therefore  would  constitute  an  unwarranted  windfall  to  Nextel. 


 211.  We  conclude  that  it  is  in  the  public  interest  to  compensate  Nextel  for  the  surrendered  spectrum  rights  and  costs  it  will  incur  as  a  result  of  band  reconfiguration.  By  facilitating  band 
 reconfiguration,  giving  up  spectrum  rights  and  bearing  the  financial  burden  of  the  relocation  process  for  all  affected  incumbents,  we  believe  that  Nextel  has  provided  the  quickest,  most  comprehensive  and  most  cost-effective 
 means  of  solving  the  800  MHz  public  safety  interference  problem  of  all  the  alternatives  presented  or  available  to  the  Commission.  In  light  of  these  substantial  public  interest  benefits,  we  conclude  that  it  is 
 appropriate  for  Nextel  to  receive  equitable  compensation  in  the  form  of  spectrum  rights  to  the  1910-  1915  MHz  and  1990-  1995  MHz  bands,  conditioned  on  its  meeting  the  obligations  imposed  by  this  Report  and 
 Order.  We  specifically  reject  the  proposal  by  some  parties  to  grant  Nextel  rights  to  spectrum  in  the  2.1  GHz  band  as  opposed  to  the  1.9  GHz  band.  546  Accordingly,  we  take  those  steps  necessary  to  designate  the 
 1.9  GHz  spectrum  for  Nextels  use,  and  to  provide  for  relocation  and  reimbursement  by  Nextel  of  incumbent  users  of  the  band. 


 212.  We  are  sensitive  to  the  argument  made  by  several  parties  that  granting  Nextel  spectrum  rights  in  the  1.9  GHz  band  could  result  in  an  undeserved  windfall  to  Nextel.  To  ensure  that  Nextel  is 
 treated  equitably  but  does  not  realize  any  windfall  gain,  we  provide  for  compensation  of  Nextel  on  a  value  for  value  basis.  Under  this  approach,  we  first  make  a  determination  of  the  market  value  of  the  1.9 
 GHz  spectrum,  based  on  valuation  data  provided  by  the  parties  and  on  our  own  analysis.  Second,  we  provide  that  as  offsets  against  this  value,  Nextel  will  receive  credit  for  (1)  the  net  value  of  the  spectrum 
 rights  that  Nextel  is  relinquishing  to  public  safety,  CII,  and  other  800  MHz  licensees,  (2)  the  actual  cost  of  800  MHz  band  reconfiguration  (including  both  Nextels  costs  to  support  relocation  by  other  licensees  and 
 Nextels  own  relocation  costs),  and  (3)  costs  incurred  by  Nextel  to  clear  the  1.9  GHz  band,  less  any  reimbursed  expenses.  Third,  because  we  do  not  know  at  present  what  the  costs  of  800  MHz  relocation  and 
 1.9  GHz  band-  clearing  will  ultimately  be,  we  provide  for  an  accounting  at  the  end  of  the  transition  period  to  determine  the  amount  of  these  offsets  and  balance  them  against  the  value  of  Nextels  1.9  GHz  spectrum 
 rights  as  determined  by  this  Report  and  Order.  547 
 1.  Public  Interest  Considerations  for  Granting  Spectrum  Rights  to  Nextel 
 213.  We  recognize  that  the  granting  of  valuable  spectrum  rights  to  Nextel  or  to  any  party  without  recourse  to  the  competitive  bidding  process  is  highly  unusual.  However,  given  the  extraordinary 


 circumstances  present  in  this  proceeding,  including  issues  involving  the  safety  of  life  and  property  and  absent  harm  to  other  interests  of  the  public  we  are  convinced  that  our  decision  in  this  regard  is  consistent 
 with  the  public  interest.  In  reaching  this  decision,  we  are  mindful  that  Congress  has  expressed  a  strong  statutory  preference  in  the  vast  majority  of  circumstances  for  use  of  auctions  to  assign  spectrum  rights. 
 However,  Congress  has  also  established  a  clear  exception  for  public  safety  services  that  protect  life  and  property,  exempting  them  from  the  requirement  that  they  obtain  spectrum  on  the  auction  block.  We 
 believe  the  same  rationale  applies  to  our  decision  here,  where  we  are  reconfiguring  spectrum  for  non- 


 545  See    61  supra. 
 546  See    217-  222  infra. 
 547  See    329-  332  infra. 
113
 Federal  Communications  Commission  FCC  04-  168 
 116 
 Mobile  services  on  a  primary  basis.  In  so  doing,  we  have  carefully  balanced  the  competing  recommendations  for  use  of  this  band  segment.  555  We  have  determined  that  the  need  to  facilitate  the 
 rebanding  to  remedy  interference  to  800  MHz  public  safety  and  CII  communications  systems,  now  and  in  the  future,  and  to  restore  spectrum  capacity  lost  by  Nextel  in  the  course  of  band  reconfiguration,  far 
 outweighs  the  benefits  of  other  potential  use  of  this  1.9  GHz  spectrum.  556  We  find  that  providing  replacement  spectrum  rights  for  Nextel  is  a  sine  qua  non  for  elimination  of  unacceptable  interference  in  the 
 800  MHz  band.  557 
 218.  In  several  recent  ex  parte  filings  in  this  proceeding,  CTIA  argues  that  if  the  Commission  is  to  award  replacement  spectrum  rights  to  Nextel  as  part  of  this  order,  it  should  select  spectrum  in  the  2.1 


 GHz  band  rather  than  the  1.9  GHz  spectrum  proposed  by  the  Consensus  Parties.  558  CTIA  points  out  that  Nextel  in  its  2002  White  Paper  originally  identified  2.1  GHz  spectrum  as  potential  replacement  spectrum. 
 CTIA  further  contends  that  the  2.1  GHz  band  is  sufficiently  comparable  to  the  1.9  GHz  band  that  it  would  be  suitable  spectrum  for  Nextels  needs,  although  it  may  be  slightly  lower  in  value.  559  In  response,  Nextel 
 contends  that  2.1  GHz  would  not  be  suitable  replacement  spectrum  because  of  technical  and  operational  deficiencies  in  comparison  to  1.9  GHz.  560 


 219.  We  conclude  that  the  record  does  not  support  substituting  2.1  GHz  for  1.9  GHz  as  proposed  by  CTIA.  We  recognize  that  the  Nextel  White  Paper  identified  2.1  GHz  as  a  potential 
 replacement  band,  and  that  the  Commission  sought  comment  on  this  and  other  potential  bands  in  the  NPRM.  However,  when  the  Consensus  Parties  filed  their  initial  proposal  in  August  2002,  they 
 specifically  identified  spectrum  in  the  1.9  GHz  band  as  the  proposed  replacement  spectrum  for  Nextel.  During  the  comment  and  reply  period,  numerous  commenters  debated  the  Consensus  Parties  proposal  to 
 use  1.9  GHz,  but  no  commenter  proposed  further  consideration  of  2.1  GHz  as  an  alternative  or  provided  information  regarding  the  characteristics  or  suitability  of  the  band.  CTIAs  proposal  to  consider 
 substituting  2.1  GHz  for  1.9  GHz  was  not  made  until  more  than  two  years  after  we  initiated  this  proceeding.  Although  several  additional  ex  parte  submissions  have  been  filed  in  response  to  the  CTIA 
 proposal  since  then,  we  find  that  they  have  primarily  raised  additional  issues  and  questions  that  would  require  further  development  of  the  record  to  resolve. 


 220.  For  example,  Nextel  cites  a  number  of  differences  between  2.1  GHz  and  1.9  GHz  that  Nextel  contends  significantly  reduce  the  formers  comparative  utility  and  value.  Nextel  contends  that 
 developing  2.1  GHz  subscriber  equipment  will  be  time-  consuming  and  costly  because  it  cannot  readily  be  adapted  from  existing  equipment  designs,  whereas  existing  PCS  equipment  can  be  adapted  quickly  with 


 555  See    224-  235  infra. 
 556  For  a  discussion  of  our  legal  authority  to  take  this  step  in  furtherance  of  the  public  interest  see    62-  87 
 supra. 
 557  We  reach  this  conclusion  based  upon  our  assessment  of  the  state  of  communications  technology  and  its 
 current  deployment,  and  cognizant  of  our  obligations  pursuant  to  47  U.  S.  C.    151.  See    211  supra. 
 558  See  CTIA  April  29  ex  parte  at  2;  CTIA  May  7  ex  parte  at  2.  CTIA  proposed  that  Nextel  not  receive 
 2.1  GHz  spectrum  until  the  rebanding  process  is  complete.  As  discussed  in    213-  216  supra,  we  conclude  that  it  is  appropriate  to  grant  spectrum  rights  to  Nextel  at  the  commencement  of  the  rebanding  process  with  those  rights 


 conditioned  on  the  successful  and  timely  completion  of  rebanding. 
 559  CTIA  May  7  ex  parte  at  5. 


 560  Nextel  May  14  ex  parte  3-  4. 
116
 Federal  Communications  Commission  FCC  04-  168 
 117 
 only  minor  changes  to  operate  in  adjacent  1.9  GHz  spectrum.  561  Nextel  also  points  to  different  incumbency  and  band-  clearing  issues  in  the  two  bands,  particularly  the  presence  of  fixed  microwave 
 incumbents  in  the  2.1  GHz  band  (some  of  them  licensed  to  Nextels  competitors),  which  it  contends  will  lead  to  greater  cost  and  more  uncertain  time  frames  for  clearing  the  band  in  comparison  to  1.9.  562  CTIA 
 contends  that  these  differences  do  not  have  as  significant  an  impact  on  the  value  of  2.1  GHz  as  Nextel  contends,  or  that  if  they  do  lower  the  value  of  2.1  GHz  in  comparison  to  1.9  GHz,  this  merely  serves  to 
 reduce  the  risk  that  Nextel  will  receive  a  windfall.  563  However,  neither  CTIA  nor  any  other  party  has  presented  additional  data  or  analysis  to  support  these  contentions.  564 


 221.  We  believe  that  Nextel  has  raised  legitimate  questions  with  respect  to  technical  and  operational  differences  between  the  2.1  GHz  band  and  the  1.9  GHz  band.  565  However,  because  of  the  late-developed 
 and  limited  nature  of  the  record  regarding  the  2.1  GHz  band,  we  lack  sufficient  information  from  which  to  draw  conclusions  on  how  these  differences  might  affect  the  relative  suitability  or  value  of 
 the  2.1  GHz  band.  Therefore,  further  consideration  of  this  option  would  require  additional  development  of  the  record,  which  would  significantly  delay  action  in  this  proceeding.  Given  the  already  lengthy  nature  of 
 this  proceeding,  and  the  urgency  of  the  public  safety  interference  problem  we  are  addressing,  such  delay  would  not  be  in  the  public  interest.  In  contrast  to  the  limited  record  on  2.1  GHz,  the  record  regarding  the 
 1.9  GHz  band  is  well-  developed,  and  we  are  satisfied  based  on  this  record  that  awarding  1.9  GHz  spectrum  rights  to  Nextel,  subject  to  the  conditions  and  safeguards  of  this  order,  is  fully  consistent  with  our  public 
 interest  goals  and  obligations.  Accordingly,  we  see  no  reason  to  delay  our  decision  to  gather  additional  information  on  an  uncertain  alternative. 


 222.  We  also  do  not  believe  that  issuing  Nextel  a  bidding  credit  or  auction  discount  voucher  for  unspecified  future  spectrum  is  an  acceptable  alternative  to  awarding  it  1.9  GHz  spectrum  rights.  566  We 
 recognize  that  Nextel  may  need  to  apply  revenues  derived  from  1.9  GHz  service  to  meet  its  obligation  to  timely  complete  800  MHz  band  reconfiguration.  It  can  do  so  only  if  it  is  afforded  timely  and  certain 
 access  to  1.9  GHz  spectrum  rights  in  exchange  for  vacating  certain  800  MHz  spectrum  and  assuming  the  cost  of  800  MHz  band  reconfiguration.  Reconfiguration  of  the  800  MHz  band  is  essential  to  our  goal  of 
 timely  abating  unacceptable  interference  to  public  safety,  CII  and  other  800  MHz  systems.  Given  the  unique  facts  of  this  case,  there  is  an  inextricable  connection  between  quick  abatement  of  unacceptable  800 
 MHz  interference  and  Nextels  quick  access  to  additional  spectrum.  Neither  a  bidding  credit  nor  an  auction  discount  voucher  would  assure  timely  and  certain  access  to  the  needed  additional  spectrum  or  the 
 associated  revenue. 


 561  Id.  at  4. 
 562  Id.  at  4. 
 563  CTIA  May  7  Ex  Parte  at  5-  6. 
 564  Verizon  states  that  would  be  prepared  to  bid  a  substantial  amount  for  2.1  GHz  spectrum,  but  less 
 than  what  it  would  bid  for  1.9  GHz  spectrum.  Verizon  May  27  Ex  Parte  at  3. 
 565  In  addition  to  equipment  costs  and  band-  clearing  issues,  Nextel  cites  inferior  propagation 
 characteristics  at  2.1  GHz  in  comparison  to  1.9  GHz  as  reducing  the  relative  value  of  2.1  GHz  spectrum.  Nextel  May  14  Ex  Parte  at  3-  5.  We  accord  very  little  weight  to  this  factor:  the  differential  free  space  path  loss  between 


 1.9  GHz  and  2.1  GHz  is  less  than  one-  tenth  of  a  dB,  and  the  attenuation  due  to  foliage,  precipitation,  and  other  environmental  factors  is  essentially  identical  for  the  two  bands. 


 566  See  Ex  Parte  presentation  of  James  Kay,  dated  June  25,  2003,  at  11. 
117
 Federal  Communications  Commission  FCC  04-  168 
 118 
 3.  Assignment  of  Spectrum  Rights  at  1.9  GHz  to  Nextel 
 223.  We  here  take  the  necessary  actions  to  assign  to  Nextel  a  ten-  year  license  to  the  1910-  1915  MHz  and  1990-  1995  MHz  bands.  For  the  reasons  described  in  detail  below,  we  take  action  in  ET  Docket 


 No.  00-  258  to  redesignate  the  1910-  1915  MHz  band  for  licensed  Fixed  and  Mobile  services,  to  be  used  for  AWS,  and  to  pair  that  spectrum  with  the  1990-  1995  MHz  band.  For  the  public  interest  reasons  described 
 above,  we  here  also  assign  to  Nextel  a  ten-  year  license  by  taking  the  necessary  action  in  WT  Docket  No.  02-  55.  In  light  of  this  redesignation  and  assignment,  we  then  adopt  a  UTAM  reimbursement  plan,  and 
 discuss  how  Nextel,  as  a  new  entrant,  will  participate  in  our  existing  relocation  procedures  for  the  1990-  2025  MHz  band  (in  ET  Docket  No.  95-  18). 


 a.  Redesignation  of  the  1910-  1915  MHz  Band 
 224.  We  here  redesignate  the  1910-  1915  MHz  Band  for  licensed  Fixed  and  Mobile  services  for  AWS  use  on  a  primary  basis,  as  opposed  to  continuing  to  dedicate  this  five  megahertz  band  to  unlicensed 


 PCS  or  providing  for  an  alternative  licensed  allocation.  We  also  consider  and  deny  various  pending  Petitions  for  Waiver  and  Petitions  for  Rulemaking  that  would  instead  have  us  waive  or  modify  our  current 
 UPCS  rules  that  apply  to  1910-  1915  MHz. 
 225.  Redesignation.  In  the  AWS  Third  NPRM,  we  sought  comment  as  to  whether  we  should  redesignate  all  or  a  portion  of  the  1910-  1930  MHz  band,  which  is  currently  designated  for  UPCS,  for 


 licensed  fixed  and  mobile  services.  Many  commenting  parties  to  the  AWS  Third  NPRM  endorse  the  introduction  of  higher  power  licensed  services  into  all  or  a  portion  of  the  band.  For  example,  Ericsson 
 states  that  by  allocating  the  spectrum  at  1910-  1915  MHz  as  part  of  a  paired  band  the  Commission  can  increase  the  value  of  this  spectrum  by  putting  it  to  a  higher-  value  use.  Ericsson  predicts  that  such  a 
 redesignation,  in  conjunction  with  regulation  pursuant  to  the  Part  24  rules  we  have  used  for  Broadband  PCS,  are  likely  to  promote  industry  investment  in  the  band,  promote  competition,  and  foster  technological 
 innovations  in  the  1910-  1915  MHz  band.  567  Commenting  parties  also  assert  that  the  1910-  1920  MHz  band,  or  a  portion  thereof,  would  be  best  utilized  for  new  and  innovative  services  or  as  relocation  spectrum 
 for  existing  services.  For  example,  Nextel  states  that  it  should  be  assigned  rights  to  a  portion  of  the  spectrum  (1910-  1915  MHz)  as  replacement  spectrum  in  conjunction  with  its  Consensus  Plan  for  the  800 
 MHz  realignment.  568  Nextel  reiterated  its  contention  that  relocating  to  this  band  from  the  public  safety  band  at  800  MHz  will  help  resolve  public  safety  interference  in  the  private  land  mobile  bands  and  can  be 
 implemented  without  causing  harmful  interference  to  adjacent  Broadband  PCS  operations.  As  another  option,  commenting  parties  including  CTIA  and  Verizon  assert  that  rights  to  the  1910-  1915  MHz  band 
 should  be  allocated  for  PCS-  like  services,  as  part  of  a  paired  block.  569  Proponents  of  this  redesignation  also  state  that  it  would  provide  efficient  use  of  spectrum,  improve  global  harmonization  of  spectrum,  and 
 achieve  economies  of  scale.  Finally,  proponents  of  MDS  state  the  1910-  1916  MHz  band  (as  part  of  a  pairing  with  the  1990-  1996  MHz  band)  would  provide  suitable  replacement  spectrum  rights  for  MDS 
 operations  in  the  2.1  GHz  band.  570  We  note  that  many  of  the  commenting  parties  who  endorse  high-  power 


 567  Ericsson  Comments  to  AWS  Third  NPRM  at  3-  4. 
 568  Nextel  Comments  to  AWS  Third  NPRM  at  5-  12. 
 569  See,  e.  g.,  CTIA  Comments  to  AWS  Third  NPRM  at  2;  Verizon  Comments  to  AWS  Third  NPRM  at  5. 
 See  also  Ascom  Comments  to  AWS  Third  NPRM  at  2  (agreeing  with  re-  designation  of  1910-  1920  MHz  for  fixed  and  mobile  uses);  Motorola  Comments  to  AWS  Third  NPRM  at  ii,  3  (agreeing  with  re-  designation  of  1915-  1920 


 MHz  for  PCS  use). 
118
 Federal  Communications  Commission  FCC  04-  168 
 119 
 use  of  the  1910-  1915  MHz  band  also  discuss  the  extent  to  which  we  could  reduce  the  existing  separation  between  the  Broadband  PCS  bands  at  1850-  1910  MHz  and  1930-  1990  MHz  without  causing  harmful 
 interference  to  existing  Broadband  PCS  operations  or  requiring  the  use  of  filters,  power  reduction,  or  other  protective  measures  that  would  increase  the  cost  of  deploying  new  high-  powered  licensed  systems  within 
 the  1910-  1930  MHz  band  or  otherwise  limit  its  usefulness.  571  Generally,  the  commenting  parties  supporting  reallocating  this  five  megahertz  portion  for  high-  power  operations  also  state  that  it  would  be 
 feasible  to  leave  a  fifteen  megahertz  separation  between  Broadband  PCS  bands  without  causing  mobile-  to-mobile  and  base-  to-  base  interference.  572 


 226.  Rather  than  redesignate  the  1910-  1920  MHz  band  for  new  licensed  mobile  services,  some  commenting  parties  state  that  isochronous  UPCS  should  be  redesignated  for  use  throughout  the  whole 
 UPCS  band.  For  example,  UTAM  and  Peasco  Valley  Telephone  Cooperative  (PVT)  state  that  the  public  interest  supports  retaining  the  entire  1910-  1930  MHz  band  for  UPCS  with  technical  modifications  to 
 enable  isochronous  devices  to  use  the  asynchronous  band.  573  Commenting  parties  state  that  retaining  this  ten  megahertz  of  spectrum  for  unlicensed  use  would  both  maintain  an  adequate  separation  between  the 
 licensed  PCS  mobile  and  base  transmit  bands  and  meet  the  growing  demands  for  UPCS  devices.  574  Specifically,  ICO  Global  Communications  (ICO)  and  Motorola  indicate  that  the  growing  demand  for 
 UPCS  devices  and  need  for  more  isochronous  UPCS  spectrum  supports  the  expansion  of  isochronous  spectrum.  575  JSM  Electronics,  Inc.,  and  UTStarcom  have  proposed  use  of  the  1910-  1915  MHz  spectrum 
 for  the  deployment  of  community  wireless  network  systems.  576  We  also  note  that  some  commenting  parties  ask  that  we  extend  isochronous  UPCS  use  to  an  additional  five  megahertz  in  the  1915-  1930  MHz 


 (Continued  from  previous  page)  570  See,  e.  g.,  Ad  Hoc  Comments  to  AWS  Third  NPRM  at  4-  5;  Cingular  Comments  to  AWS  Third  NPRM  at 
 4  (stating  that  allocation  will  add  flexibility  for  MDS  to  provide  fixed  and  mobile  services);  DCT  Los  Angeles  (DCT)  Comments  to  AWS  Third  NPRM  at  14;  Nucentrix  Comments  to  AWS  Third  NPRM  at  11-  13  (asserting  that 
 MDS  proponents  have  worked  to  provide  technically  viable  solution  for  displaced  MDS  that  no  other  proponents  of  various  allocation  schemes  have  submitted);  WCA  Comments  to  AWS  Third  NPRM  at  13,  18.  In  the  Second 
 R&  O,  we  reallocated  MDS  spectrum  at  2150-  2155  MHz  for  AWS.  MDS  Channels  1  and  2/  2A  consist  of  the  2150-  2160/  62  MHz  band.  While  our  recent  decision  to  relocate  MDS  channels  1  and  2  to  the  2.5  GHz  band,  discussed 
 infra,  makes  these  proposals  moot,  we  believe  that  they  continue  to  be  of  value  to  this  proceeding  insofar  that  they  illustrate  commenters  beliefs  that  high-  powered  services  could  occupy  the  band. 


 571  See,  e.  g.,  Motorola  Comments  to  AWS  Third  NPRM  at  4;  Verizon  Comments  to  AWS  Third  NPRM  at  5, 
 Ericsson  Comments  to  AWS  Third  NPRM  at  3,  Lucent  Reply  Comments  to  AWS  Third  NPRM  at  2. 
 572  See,  e.  g.,  Ad  Hoc  Comments  to  AWS  Third  NPRM  at  5;  CTIA  Comment  to  AWS  Third  NPRM  at  3; 
 Nextel  Comments  to  AWS  Third  NPRM  at  11-  12;  UTAM  Comment  to  AWS  Third  NPRM  at  4;  Verizon  Comments  to  AWS  Third  NPRM  at  5-  6. 


 573  UTAM  Comments  to  AWS  Third  NPRM  at  2;  PVT  Reply  Comments  to  AWS  Third  NPRM  at  2-  3;  See 
 also  UTStarcom  Comments  to  AWS  Third  NPRM  at  3-  4  (proposes  community  wireless  systems  in  UPCS  extended  band);  Inventel  Reply  Comments  to  AWS  Third  NPRM  at  2;  Midstate  Communications  (Midstate)  Reply  Comments 


 to  AWS  Third  NPRM  at  2  (  Leaving  UCPS  spectrum  for  unlicensed  use  will  encourage  deployment  of  niche  services  and  local  mobility  applications  that  show  great  promise  to  benefit  consumers  in  rural,  underserved  and 
 tribal  areas);  PBC  Reply  Comments  to  AWS  Third  NPRM  at  2. 
 574  See,  e.  g.,  UTAM  Comments  to  AWS  Third  NPRM  at  4-  5  (stating  record  does  not  show  evidence  that 
 reduction  of  spectrum  by  ten  megahertz  is  feasible,  and  evidence  shows  something  to  the  contrary). 
 575  Ericsson  Comments  to  AWS  Third  NPRM  at  5;  ICO  Comments  to  AWS  Third  NPRM  at  5;  Motorola 
 Comments  to  AWS  Third  NPRM  at  8-  10. 
 576  JSM  Comments  to  AWS  Third  NPRM  at  2;  UTStarcom  Comments  to  AWS  Third  NPRM  at  4-  5. 
119
 Federal  Communications  Commission  FCC  04-  168 
 120 
 band,  particularly  in  the  event  that  we  redesignate  the  1910-  1915  MHz  band  segment.  Proponents  of  this  option  claim  that  isochronous  UPCS  should  be  extended  because  the  current  asynchronous  designation  has 
 not  resulted  in  service,  continued  low  power  (UPCS)  use  would  reduce  potential  interference  to  high  power  adjacent  band  Broadband  PCS  licensees,  and  demand  exists  to  expand  unlicensed  voice  applications 
 beyond  the  existing  ten  megahertz.  577  Siemens,  for  example,  suggests  that  by  extending  isochronous  UPCS  use  to  the  1915-  1920  MHz  band  and  implementing  several  technical  changes  to  the  Rules,  the 
 Commission  could  allow  for  the  introduction  of  products  using  DECT  technology  into  the  United  States.  578 
 227.  Based  on  the  record,  we  conclude  that  the  public  interest  would  be  best  served  by  re-designating  five  megahertz  of  spectrum  in  the  1910-  1915  MHz  band  for  licensed  Fixed  and  Mobile 


 services  on  a  primary  basis  to  support  the  types  of  high-  powered  mobile  applications  associated  with  AWS,  Broadband  PCS  expansion,  and  Nextels  mobile  operations.  We  note  that  there  is  strong  support  for 
 such  a  designation  in  the  record,  and  we  agree  with  those  parties  that  assert  that  such  a  designation  will  promote  efficient  use  of  the  spectrum,  allow  for  the  rapid  introduction  of  high-  value  services,  and 
 otherwise  serve  the  public  interest. 
 228.  We  find  that  such  a  designation  is  preferable  to  continued  unlicensed  uses  of  the  band.  Even  if  the  demand  for  isochronous  devices  is  growing  or  similar  unlicensed  voice  applications  (such  as 


 those  associated  with  community  wireless  networks)  could  be  deployed  in  the  band,  we  cannot  conclude  that  such  use  would  be  preferable  to  the  types  of  higher  powered  licensed  applications  that  the  band  could 
 support.  The  proven  public  demand  for  licensed  mobile  services  and  the  need  to  provide  additional  spectrum  to  support  their  continued  deployment  leads  us  to  conclude  that  designation  of  this  spectrum  to 
 licensed  Fixed  and  Mobile  services  will  allow  us  to  put  this  spectrum  to  a  higher  use  than  it  can  serve  as  unlicensed  spectrum.  Moreover,  no  commenter  has  suggested  that  asynchronous  applications  for  the  band 
 will  be  developed  or  deployed  in  the  near  future  and  those  parties  that  promote  expanded  voice  applications  in  the  band  would  only  offer  deployment  in  limited  geographic  areas  or  urban  locations  where 
 the  1920-  1930  MHz  band  is  already  put  to  high  use.  By  contrast,  the  redesignation  of  this  band  to  licensed  use  would  promote  the  rapid  and  widespread  introduction  of  services  into  spectrum  that  heretofore  has  lain 
 fallow. 
 229.  We  note  that  by  assigning  these  spectrum  rights  to  Nextel  we  preclude  other  AWS-  like  use,  on  which  we  sought  comment  in  the  AWS  Third  NPRM,  including  expansion  of  the  existing 


 Broadband  PCS  bands  and  allocation  of  this  spectrum  to  MDS  as  replacement  spectrum.  However,  such  use  does  not  offer  us  the  ability  to  resolve  the  critical  public  safety  issues  that  we  will  be  able  to  address  by 
 assigning  the  spectrum  to  Nextel.  579  Also,  we  note  that  the  proposal  by  MDS  proponents  to  redesignate 


 577  See,  e.  g.,  Ascom  Comments  to  AWS  Third  NPRM  at  2;  Siemens  Comments  to  AWS  Third  NPRM  at  2; 
 Verizon  Comments  to  AWS  Third  NPRM  at  6;  WCA  Comments  to  Third  NRPM  at  17,  20;  See  also  Ericsson  Comments  to  AWS  Third  NPRM  at  5  (stating  that  such  an  expansion  is  consistent  with  current  use  of  spectrum); 


 Siemens  Comments  to  AWS  Third  NPRM  at  3  (noting  that  expansion  improves  spectrum  efficiency  and  reduces  levels  of  interference,  thereby  enhancing  quality  of  service);  Cingular  Comments  to  AWS  Third  NPRM  at  2-  3 
 (support  retaining  1916-  1930  MHz  for  UPCS). 
 578  See  ex  parte  Comments  of  Siemens  Corp.,  et.  al.  filed  in  ET  Docket  00-  258  on  December  12,  2003. 
 DECT  is  a  digital  wireless  technology  that  originated  in  Europe  and  is  used  in  a  variety  of  wireless  applications,  including  cordless  telephones  and  wireless  office  telecommunications  products. 


 579  See,  e.  g.,  Ad  Hoc  Comments  to  Third  NPRM  at  4;  Cingular  Comments  to  Third  NPRM  at  4;  WCA 
 Comments  to  Third  NPRM  at  12-  13.  Because  this  decision  exclusively  considers  the  resolution  of  allocation  matters  in  the  1910-  1915  and  1990-  1995  MHz  bands,  we  make  no  decision  herein  with  respect  to  relocation  of 


 MDS  operations  other  than  to  conclude  that  assignment  of  this  spectrum  to  Nextel  best  serves  the  public  interest 
120
 Federal  Communications  Commission  FCC  04-  168 
 121 
 the  1910-  1916  MHz  band  paired  with  the  1990-  1996  MHz  band  as  replacement  spectrum  for  MDS  channels  1  and  2  has  been  rendered  moot  by  our  recent  decision  in  which  we  established  a  relocation  plan 
 for  those  MDS  channels  in  conjunction  with  the  restructuring  of  the  2.5  GHz  band.  580 
 230.  Finally,  we  note  that  while  we  are  re-  designating  the  1910-  1915  MHz  band  segment  for  Fixed  and  Mobile  services,  we  do  not  address  the  1915-  1920  MHz  band  segment  at  this  time. 


 Commenting  parties  generally  concur  that  Broadband  PCS  mobile  and  base  transmit  bands  will  be  able  to  continue  to  operate  with  a  duplexer  gap  of  fifteen  megahertz  without  causing  interference  to  each  other. 
 Because  we  are  not  modifying  the  existing  designation  for  the  1915-  1920  MHz  band,  we  need  not  consider  at  this  time  those  comments  that  discuss  whether  or  how  we  could  preserve  an  adequate  separation  gap 
 between  the  Broadband  PCS  bands  if  we  were  to  redesignate  spectrum  above  1915  MHz  for  high-  power  licensed  services.  Furthermore,  we  are  retaining  the  option  to,  inter  alia,  use  the  1915-  1920  MHz  band  for 
 AWS  use  or  in  conjunction  with  an  expansion  of  our  UPCS  rules  to  allow  for  expanded  voice-  based  applications,  but  will  address  these  matters  in  a  subsequent  action. 


 231.  Accordingly,  we  find  ample  support  in  the  record  for  allowing  high-  powered  use  of  the  1910-  1915  MHz  band  segment  and  that  such  use  can  occur  without  causing  interference  to  existing 
 Broadband  PCS  operations.  For  the  reasons  stated  above,  we  are  re-  designating  the  1910-  1915  MHz  band  for  licensed  Fixed  and  Mobile  services  and  updating  our  Part  15  rules  to  remove  the  1910-  1915  MHz  band 
 from  asynchronous  UPCS  use. 
 232.  Petitions  for  Rulemaking  and  Petitions  for  Waiver  Regarding  the  1910-  1930  MHz  Band.  As  mentioned,  supra,  the  under-  utilization  by  unlicensed  devices  of  the  1910-  1920  MHz  band  has 


 prompted  the  filing  of  four  petitions  for  waiver  from  Lucent,  UTStarcom  &  Drew  University,  Ascom,  and  Alaska  Power;  and  two  petitions  for  rulemaking  from  WINForum  and  UTStarcom,  which  all  request 
 certain  rule  changes  to  these  bands. 
 233.  In  its  petition  for  waiver,  Lucent  requests  that  it  be  allowed  to  use  the  1910-  1920  MHz  band  for  its  Definity  PBX  voice  system  within  the  confines  of  Cook  County,  Illinois.  It  claims  that  several 


 of  its  customers  need  high-  capacity  indoor  wireless  communications  and  that  the  existing  ten  megahertz  of  spectrum  reserved  for  voice  in  the  1920-  1930  MHz  band  is  insufficient  to  meet  those  needs.  Also, 
 UTStarcom  &  Drew  University  request  permission  to  use  the  1910-  1920  MHz  band  to  install  the  UTStarcom  Personal  Access  System  (PAS)  on  the  campus  of  Drew  University  in  Madison,  New  Jersey,  in 
 order  to  provide  wireless  telephone  service  to  the  students  and  staff,  as  an  extension  of  the  universitys  wired  telephone  system.  It  states  that  the  PAS  system  complies  with  Japan  Personal  Handy  Phone  System 
 (PHS)  Standard  RCR-  28  but  does  not  meet  Part  15  requirements  for  either  isochronous  or  asynchronous  devices  and  typically  operates  at  higher  power  levels  than  mandated  by  Part  15.  It  further  states  that  once 
 Broadband  PCS  Block  C  licensees  are  selected  in  Auction  #35  (for  the  1895-  1910  MHz  band  paired  with  the  1975-  1990  MHz  band)  it  would  be  possible  to  negotiate  use  of  that  spectrum  on  the  Drew  University 
 campus  with  the  winning  licensee.  In  addition,  Ascom  requests  that  it  be  allowed  to  use  the  1910-  1920  MHz  band  for  its  Freeset  DCT  1900  PBX  voice  system  within  the  confines  of  Cook  County,  Illinois;  New 
 York  City;  and  San  Francisco  County,  California,  because  several  of  its  customers,  who  are  boards  of  trade  or  stock  exchange  entities,  need  high-  capacity  indoor  wireless  communications.  Ascom  submits  that  the 
 ten  megahertz  of  spectrum  reserved  for  voice  in  the  1920-  1930  MHz  band  is,  again,  insufficient  to  meet  such  needs.  Finally,  Alaska  Power  requests  a  waiver  of  Part  15  asynchronous  spectrum  etiquette  to 


 580  Amendment  of  Parts  1,  21,  73,  74  and  101  of  the  Commissions  Rules  to  Facilitate  the  Provision  of 
 Fixed  and  Mobile  Broadband  Access,  Educational  and  Other  Advanced  Services  in  the  2150-  2162  and  2500-  2690  MHz  Bands,  et  al.;  WT  Docket  Nos.  03-  66,  et  al.,  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  FCC 


 04-  135  (rel.  Jul.  29,  2004)  (2.5  GHz  MDS  Restructuring  R&  O  and  NPRM). 
121
 Federal  Communications  Commission  FCC  04-  168 
 122 
 operate  a  community  wireless  voice  system  over  the  1910-  1920  MHz  (data)  band,  in  order  to  serve  small  rural  areas  in  Alaska  that  are  currently  unserved  or  underserved  by  wireless  service  providers. 
 234.  In  its  petition  for  rulemaking,  WINForum  asks  the  Commission  to  allow  isochronous  UPCS  devices  to  use  the  1910-  1920  MHz  band  and  to  phase  out  asynchronous  use  in  this  band,  thereby 
 providing  twenty  megahertz  of  spectrum  (1910-  1930  MHz)  for  isochronous  devices,  and  also  to  modify  certain  technical  requirements  for  UPCS  devices  in  Part  15.  WINForum  further  requests  that  the 
 Commission  modify  the  frequency  stability  requirements  for  asynchronous  UPCS  data  devices.  581  In  its  petition,  UTStarcom  requests  that  the  1910-  1920  MHz  band  be  made  available  for  licensing  via 
 competitive  bidding  to  permit  the  establishment  of  community  wireless  network  service,  using  its  PAS  which  is  based  on  Japans  RCR-  28  Personal  Handy  Phone  System  (PHS)  standard.  582  Subsequently, 
 UTStarcom  modified  its  requests  to  seek  changes  to  the  Part  15  rules  for  coordinated  unlicensed  operation  in  the  1910-  1920  MHz  band  for  its  PAS  system,  with  coordination  performed  by  UTAM,  using  the 
 existing  UTAM  coordination  infrastructure.  583 
 235.  As  a  consequence  of  our  decision  to  redesignate  the  1910-  1915  MHz  band  for  licensed  Fixed  and  Mobile  services  for  AWS  use,  we  deny  in  part  the  waiver  petitions  from  Lucent,  Ascom,  Alaska 


 Power,  and  UTStarcom  and  Drew  University  insofar  as  they  request  use  of  spectrum  in  the  1910-  1915  MHz  band.  We  also  deny  in  part  the  petitions  for  rulemaking  from  WINForum  and  UTStarcom.  Again, 
 our  decision  to  deny  in  part  the  rulemaking  petitions  is  made  only  with  respect  to  the  1910-  1915  MHz  band,  and  is  based  on  the  fact  that  re-  designation  of  this  band  precludes  the  petitioners  requests  to  use  the 
 entire  1910-  1920  MHz  band  for  expanded  unlicensed  applications.  At  this  time  we  are  not  deciding  the  disposition  of  the  1915-  1920  MHz  band,  and  so  we  do  not  address  the  petitions  for  waivers  and  petitions 
 for  rulemaking  with  respect  to  this  five  megahertz  band  segment.  To  the  extent  that  these  parties  can  operate  without  use  of  spectrum  in  the  1910-  1915  MHz  band,  we  will  further  address  their  petitions  when 
 we  consider  the  disposition  of  the  1915-  1920  MHz  band. 
 b.  Pairing  the  1910-  1915  MHz  and  1990-  1995  MHz  Bands 
 236.  As  part  of  our  proposal  in  ET  Docket  00-  258  to  redesignate  the  1910-  1920  MHz  band  (or  a  portion  thereof)  in  the  AWS  Third  NPRM  for  Fixed  and  Mobile  Services,  we  also  proposed  options  for 


 pairing  the  1910-  1920  MHz  band  with  the  1990-  2000  MHz  band  for  the  redesignation  of  AWS,  expansion  of  Broadband  PCS,  or  the  relocation  of  existing  services.  584  Such  a  pairing  was  made  possible  because,  in 
 the  Report  and  Order  portion  of  that  decision,  we  redesignated  the  1990-  1995  MHz  band  to  the  Fixed  and  Mobile  Services  as  part  of  our  restructuring  of  the  2  GHz  MSS  band.  585 


 237.  Those  parties  that  support  use  of  the  1910-  1915  MHz  band  for  high  power  licensed  services  generally  agree  with  our  proposal  to  pair  the  band  with  an  equal  amount  of  spectrum  from  the 
 581  Id.  at  15-  16.  Currently,  47  C.  F.  R.  15.321(  e)  requires  the  measurement  of  the  carrier  frequency  in 
 order  to  ensure  its  frequency  stability.  WINForum  believes  that  for  asynchronous  data  devices  that  transmit  in  short  bursts,  explicit  measurement  of  the  carrier  frequency  as  a  function  of  time  for  a  short  modulated  burst  is 


 inherently  problematic.  WINForums  proposal  would  allow  for  a  more  realistic  measurement  of  the  frequency  stability  of  the  device. 


 582  See  UTStarcom  Petition  at  2. 
 583  See  UTStarcom  Reply  Comments  to  AWS  Third  NPRM  at  3. 
 584  AWS  Third  NPRM,  18  FCC  Rcd  2223    47-  49. 
 585  AWS  Third  R&  O,  18  FCC  Rcd  2223    28. 
122
 Federal  Communications  Commission  FCC  04-  168 
 125 
 auctioned.  598  Finally,  UTAM  suggests  that  we  consider  allocating  reimbursement  costs  among  multiple  new  licensees  entering  the  band  by  POPs  as  an  effective,  simple,  and  manageable  means  of  cost 
 recovery.  599 
 244.  Nextel  also  agrees  with  our  proposal  for  reimbursing  UTAM  incurred  relocation  costs.  Nextel  states  that  if  it  were  relocated  to  1910-  1915  MHz,  it  will  reimburse  UTAM  the  band-  clearing  costs 


 related  to  relocating  incumbent  microwave  facilities  from  this  five  megahertz  block  of  spectrum.  Specifically,  Nextel  states  that  it  agrees  that  UTAM  should  be  entitled  to  receive  a  proportional  share  of 
 the  total  expenses  UTAM  will  have  incurred  to  relocate  microwave  incumbents  from  the  1910-  1930  MHz  band  as  of  the  effective  date  of  any  final  rules  adopted  in  this  proceeding.  600  Nextel  also  states  that  it 
 would  fund  a  pro  rata  share  of  any  additional  band  clearing  costs  that  are  incurred  following  assignment  of  the  spectrum  block.  601  PCIA,  which  also  supports  our  general  relocation  proposal,  proposes  that  we 
 establish  a  band-  clearing  cost-  sharing  clearinghouse  to  manage  the  relocation  compensation  in  the  allocation  of  UPCS  bands  to  AWS.  602  PCIA  states  that  many  AWS  licensees  would  benefit  from  UTAM 
 relocating  incumbent  microwave  links  from  the  UPCS  bands,  because  AWS  licensees  licensed  in  different  geographic  service  areas  could  cause  interference  to  or  receive  interference  from  a  single  incumbent 
 licensee.  PCIA  therefore  submits  that  a  band-  clearing  cost-  sharing  clearinghouse  needs  to  be  developed  to  fairly  reimburse  UTAM,  similar  to  the  cost-  sharing  procedures  for  PCS  in  Part  24  of  the  Commissions 
 Rules.  603 
 245.  In  conjunction  with  our  re-  designation  of  the  1910-  1915  MHz  band  for  licensed  Fixed  and  Mobile  services,  we  find  that  UTAM  must  be  fully  and  fairly  reimbursed  for  relocating  incumbent 


 microwave  users  that  operate  on  a  primary  basis  in  this  band.  We  agree  with  commenting  parties,  such  as  Nextel,  that  UTAM  should  be  made  whole  for  the  investments  it  has  made  in  clearing  the  UPCS  bands. 
 We  also  find  that  in  view  of  our  assignment  of  this  spectrum  to  Nextel,  it  is  appropriate  to  require  Nextel  to  reimburse  UTAM  twenty-  five  percent  of  UTAMs  total  relocation  costs  associated  with  relocation  of 
 incumbents  from  the  1910-  1930  MHz  band  as  of  the  date  of  assignment  of  the  1910-  1915  MHz  spectrum  block  to  Nextel.  We  also  agree  with  UTAM  that  we  should  apply  the  same  cost-  sharing  obligations  to 
 Nextel  that  we  have  imposed  on  licensees  on  channels  that  are  adjacent  to  the  UPCS  bands.  604  Thus,  we  will  allow  Nextel  or  UTAM  to  seek  reimbursement  for  the  proportion  of  its  relocation  costs  that  benefits 
 spectrum  whose  relocation  obligations  would  otherwise  be  borne  by  the  party  that  uses  or  is  otherwise  responsible  for  that  spectrum  band.  For  example,  if  in  order  to  make  spectrum  in  the  1910-  1915  MHz 
 band  available  for  use,  Nextel  relocates  microwave  links  in  both  the  1910-  1915  MHz  and  the  1915-  1930  MHz  bands,  Nextel  may  seek  reimbursement  from  UTAM  for  the  actual  costs  associated  with  the 


 598  Id  at  7. 
 599  Id.  POP  is  an  abbreviated  term  for  population  used  by  the  Commission.  One  pop  equals  one  person. 
 The  Commission  currently  uses  the  1990  census  as  a  measure  of  population.  See  http://  wireless.  fcc.  gov/  auctions/  glossary.  html. 


 600  Nextel  Comments  to  AWS  Third  NPRM  at  15. 
 601  Id.  at  15-  16.  See  also  Nextel  Reply  Comments  to  AWS  Third  NPRM  at  6. 
 602  Cost-  sharing  procedures  for  relocation  of  microwave  incumbents  are  found  in    24.239  through   
 24.253  of  the  Commissions  Rules. 
 603  PCIA  Comments  to  AWS  Third  NPRM  at  4-  5. 


 604  UTAM  Comments  to  AWS  Third  NPRM  at  6. 
125
 Federal  Communications  Commission  FCC  04-  168 
 127 
 otherwise  be  borne  by  the  party  that  uses  or  is  otherwise  responsible  for  that  spectrum  band.  UTAM  and  Nextel  shall  reimburse  those  based  on  the  actual  costs  associated  with  the  relocation  of  these  facilities. 
 d.  Relocation  and  Cost  Sharing  Obligations  in  the  1990-  1995  MHz  Band 
 250.  In  this  section,  we  address  Nextels  obligations,  as  a  new  entrant,  to  relocate  incumbent  BAS  systems  in  the  1990-  1995  MHz  band.  As  an  initial  matter,  we  are  not  altering  the  underlying 


 relocation  rules  that  we  established  for  MSS  entrants  that  undertake  the  relocation  of  BAS  incumbents  from  the  1990-  2025  MHz  band  and  MSS  licensees  will  continue  to  follow  the  procedures  that  the 
 Commission  adopted  in  the  MSS  Third  R&  O  when  relocating  BAS  incumbents.  608  We  are,  however,  modifying  on  reconsideration  one  aspect  of  the  existing  MSS  plan  to  relocate  BAS  incumbents  in  order  to 
 allow  Nextel  to  enter  into  the  band  and  to  address  BAS  relocation  issues  raised  in  the  petitions  for  reconsideration  of  the  MSS  Third  R&  O.  By  retaining  the  existing  MSS  relocation  rules  but  also  overlaying 
 procedures  by  which  Nextel  may  relocate  BAS  incumbents,  we  will  be  able  to  ensure  the  continuity  of  BAS  during  the  transition.  It  is  essential  that  we  do  so,  because  BAS  is  a  critical  part  of  the  broadcasting 
 system  by  which  emergency  information  and  entertainment  content  is  provided  to  the  American  public.  Therefore,  we  expect  that  Nextel  and  MSS  licensees  will  work  together  to  minimize  the  disruption  BAS 
 licensees  will  experience  in  the  transition. 
 (i)  Nextel-  BAS  Plan 
 251.  MSTV-  NAB-  Nextel  BAS  Relocation  Plan.  On  May  3,  2004,  MSTV,  NAB,  and  Nextel  submitted  a  proposed  BAS  relocation  plan,  which  offered  a  means  to  clear  BAS  licensees  from  the  1990- 


 2025  MHz  band.  609  Under  this  proposal,  Nextel  would  commit  to  funding  the  entire  cost  of  relocating  all  BAS  incumbents  nationwide  from  the  1990-  2025  MHz  band.  610  Specifically,  Nextel  proposes  to  complete 
 the  relocation  of  all  BAS  licensees  in  the  1990-  2025  MHz  band  in  all  markets  in  two  stages  stage  one  within  eighteen  months  and  stage  two  within  thirty  months  after  the  effective  date  of  a  Commission  order 
 in  this  proceeding.  611 
 252.  We  will  require  Nextel,  as  a  condition  on  Nextels  1.9  GHz  licenses,  to  follow  a  relocation  procedure  based  on  its  proposed  BAS  relocation  plan  and  relocate  all  BAS  licensees  in  the  1990-  2025 


 MHz  band  within  thirty  months  after  the  effective  date  of  this  Report  and  Order,  as  described  below.  We  believe  that  the  parties  proposed  BAS  relocation  plan  is  sufficiently  similar  to  the  BAS  relocation  plan  the 
 FCC  adopted  for  MSS  entrants,  which  was  modeled  on  the  policies  set  forth  in  our  earlier  Emerging 


 608  See    56  supra.  As  noted  earlier,  we  will  address  the  petitions  for  reconsideration  or  clarification  of 
 BAS  relocation  decisions  made  in  the  MSS  Third  R&  O  in  this  proceeding.  We  will,  however,  address  the  FS  relocation  issues  raised  in  the  pending  joint  petition  for  reconsideration  or  clarification  of  the  MSS  Third  R&  O  at  a 


 later  date. 
 609  See  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte.  This  plan  was  also  supported  by  SBE.  See  ex  parte 
 comments,  dated  May  7,  2004,  from  SBE  (SBE  May  7,  2004  Ex  Parte). 
 610  In  return,  Nextel  requests  that  the  Commission  assign  to  Nextel  replacement  spectrum  in  the  1910- 
 1915/  1990-  1995  MHz  bands  and  receive  credit  for  BAS  relocation  costs.  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  2. 


 611  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  2-  3.  The  parties  also  note  that  these  targets  may  be 
 adjusted  to  take  into  account  issues  regarding  the  availability  of  equipment,  tower  crews  and  other  installation  technicians.  Id.  at  3. 
127
 Federal  Communications  Commission  FCC  04-  168 
 128 
 Technologies  proceeding,  612  and  which  requires  MSS  entrants  to  provide  comparable  facilities  to  BAS  incumbents  that  are  relocated  prior  to  the  sunset  dates  specified  in  the  MSS  Third  R&  O.  613  Accordingly, 
 we  will  also  require  Nextel  to  provide  comparable  facilities  to  BAS  incumbents  that  are  relocated.  614  Further,  Nextel  and  MSS  licensees,  each  of  which  individually  are  authorized  to  operate  on  a  fraction  of 
 the  band,  will  mutually  benefit  from  the  clearance  of  all  BAS  licensees  in  the  band.  615  Nextel  is  therefore  obligated  to  participate  in  the  relocation  of  all  BAS  operations  from  1990-  2025  MHz,  as  discussed 
 immediately  below,  even  if  it  ultimately  does  not  build  its  own  facilities  in  some  geographic  areas.  As  we  determined  in  the  MSS  Third  R&  O,  a  one-  phase  relocation  plan  avoids  the  possibility  of  BAS  operations 
 on  three  different  band  plans,  and  eliminates  the  potential  disruption  and  down  time  to  BAS  associated  with  being  relocated  under  two  different  phases  in  a  short  period  of  time.  616  We  also  note  that  our  decision 
 to  accommodate  Nextels  entry  into  the  band  does  not  alter  our  need  to  minimize  the  disruption  to  incumbent  BAS  operations  during  the  transition.  Therefore,  we  believe  that  including  Nextel  as  a 
 participant  in  the  relocation  of  all  BAS  operations  from  the  1990-  2025  MHz  band  strikes  an  appropriate  balance  that  is  not  unreasonably  burdensome  upon  Nextel  as  an  entrant  in  the  band,  while  also  fair  to  the 
 incumbents  and  MSS  entrants. 
 253.  Relocation  Schedule.  Under  the  BAS  relocation  plan,  MSTV,  NAB,  Nextel,  SBE  and  other  interested  broadcast  parties  will  develop  a  joint  relocation  schedule  and  implementation  plan  to  be 


 submitted  to  the  Commission.  The  joint  implementation  plan  would  address  the  timing  of  individual  market  relocations  within  the  two-  stage  plan  that  will  be  completed  within  thirty  months,  measures  to 
 minimize  disruption  to  ENG  services  during  the  transition,  and  measures  to  facilitate  an  expeditious  and  efficient  relocation  process.  The  joint  relocation  schedule  will  be  based  on  the  following  criteria:  during 
 stage  one,  Nextel  will  relocate  all  BAS  incumbents  in  markets  where  it  chooses  to  deploy  immediately,  as  well  as  any  adjacent  markets  that  raise  inter-  market  coordination  and  interference  problems;  and  during 
 stage  two,  Nextel  will  relocate  all  remaining  markets.  Throughout  this  process  (including  after  the  initiation  of  stage  two),  BAS  licensees  that  have  not  been  relocated  would  be  permitted  to  continue 
 operation  on  their  existing  seven  channels  until  they  are  relocated  to  the  new  band  plan  at  2025-  2110  MHz.  617  According  to  the  parties,  this  relocation  proposal  would  therefore  minimize  disruption  to 


 612  See  Redevelopment  of  Spectrum  to  Encourage  Innovation  in  the  Use  of  New  Telecommunications 
 Technologies,  ET  Docket  No.  92-  9,  First  Report  and  Order  and  Third  Notice  of  Proposed  Rule  Making,  7  FCC  Rcd  6886  (1992);  Second  Report  and  Order,  8  FCC  Rcd  6495  (1993);  Third  Report  and  Order  and  Memorandum 


 Opinion  and  Order,  8  FCC  Rcd  6589  (1993);  Memorandum  Opinion  and  Order,  9  FCC  Rcd  1943  (1994);  Second  Memorandum  Opinion  and  Order,  9  FCC  Rcd  7797  (1994);  affd  Association  of  Public  Safety  Communications 
 Officials-  International,  Inc.  v.  FCC,  76  F.  3d  395  (D.  C.  Cir.  1996)  (collectively,  Emerging  Technologies  proceeding). 


 613  MSS  Third  R&  O,  18  FCC  Rcd  23638. 
 614  See  47  C.  F.  R.    74.690,  101.73. 
 615  Each  authorized  2  GHz  MSS  licensee  receives  an  equal  share  of  the  available  frequencies  in  which  its 
 primary  service  operations  will  take  place,  to  be  chosen  at  the  time  it  has  launched  one  satellite  into  its  intended  orbit.  Each  authorized  2  GHz  MSS  system  may  also  operate  at  other  frequencies  in  the  2  GHz  MSS  band,  provided 


 it  does  not  cause  harmful  interference  to  other  assigned  satellite  networks  or  incumbent  terrestrial  services  that  have  not  been  relocated.  See  In  The  Matter  Of  The  Establishment  Of  Policies  And  Service  Rules  For  The  Mobile 
 Satellite  Service  In  The  2  GHz  Band,  IB  Docket  99-  81,  Report  and  Order,  15  FCC  Rcd  16127,  16138-  140    16-  21  (2000). 


 616  MSS  Third  R&  O,  18  FCC  Rcd  at  23654-  57    32-  35. 
 617  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  3-  6. 
128
 Federal  Communications  Commission  FCC  04-  168 
 129 
 incumbent  BAS  operations  as  well  as  serve  the  public  interest  by  preserving  the  ability  of  broadcasters  to  provide  the  public  with  timely  coverage  of  emergencies  and  other  news  events.  The  parties  further 
 contend  that  the  thirty-  month  timeframe  for  relocating  all  BAS  incumbents  under  the  proposed  Nextel-BAS  relocation  plan  should  ensure  that  the  1990-  2025  MHz  band  is  cleared  nationwide  before  MSS 
 entrants  are  ready  to  begin  service  in  the  2000-  2025  MHz  band.  618 
 254.  We  will  require  Nextel  to  file  progress  reports  within  twelve  months  and  twenty-  four  months  after  the  effective  date  of  this  Report  and  Order  on  the  status  of  the  transition,  including 


 identifying  the  markets  that  will  be  relocated  during  stage  one  and  all  remaining  markets  that  will  be  relocated  during  stage  two.  This  filing  also  should  include  the  other  information  the  parties  stated  they 
 would  provide  as  part  of  the  joint  implementation  plan  described  in  the  Nextel-  BAS  relocation  plan.  619  Nextel  also  will  be  required  to  certify  to  the  Commission  that  all  BAS  facilities  have  been  relocated  within 
 thirty  months  after  the  effective  date  of  this  Report  and  Order.  We  note  that  Nextels  obligation  to  relocate  BAS  incumbents  must  not  interfere  with  its  obligation  to  relocate  public  safety  users  in  the  800 
 MHz  band. 
 255.  Nextel,  which  uses  a  terrestrial  network,  has  a  different  interference  potential  between  its  service  and  BAS  than  that  of  MSS  and  BAS.  Unlike  satellites,  whose  signals  can  blanket  the  whole 


 country  simultaneously,  a  terrestrial  network  is  limited  to  discrete  geographic  areas  served  by  multiple  base  stations.  Thus,  the  terrestrial  nature  of  Nextels  service  allows  for  the  gradual  relocation  of 
 incumbents  during  a  geographically-  based  build-  out  period.  Consequently,  we  will  allow  Nextel  to  determine  its  own  schedule  for  relocating  incumbent  BAS  facilities  in  a  TV  market  as  follows:  Nextel 
 must  relocate  incumbent  BAS  licensees  before  beginning  operation  in  a  particular  BAS  market,  but  Nextel  may  determine  the  markets  it  wishes  to  serve.  Thus,  whereas  we  had  established  a  relocation  process 
 based  on  specific  markets  (1-  30,  31-  100,  and  101-  210)  for  MSS,  Nextels  operations  will  only  affect  those  markets  where  Nextel  chooses  to  deploy  its  service.  Unlike  MSS,  which  may  take  up  to  five  years  to 
 relocate  BAS  services  in  markets  31  and  above,  Nextel  must  relocate  incumbent  BAS  operations  in  every  BAS  market  it  wishes  to  serve  including  markets  31  and  above  prior  to  beginning  operations,  and  all 
 BAS  markets  within  the  thirty-  month  timeframe  proposed  in  the  Nextel-  BAS  relocation  plan.  We  conclude  that  the  differences  between  the  terrestrial  nature  of  Nextels  service  and  the  ubiquitous  service 
 that  will  be  provided  by  MSS  warrant  these  distinctions  in  the  relocation  procedures. 
 256.  Further,  the  integrated  nature  of  BAS  operations  also  makes  isolated,  link-  by-  link  relocation  infeasible.  Therefore,  as  a  practical  matter,  we  note  that  it  may  be  necessary  for  Nextel  to 


 relocate  more  BAS  facilities  than  an  interference  analysis  might  indicate  as  technically  necessary  in  order  to  meet  the  comparable  facility  requirement  for  relocating  BAS  operations.  620  Nextel  has  agreed  to 
 relocate  BAS  licensees  across  multiple  TV  markets  to  avoid  inter-  market  coordination  and  interference  problems.  621  We  also  recognize  that  Nextel  is  likely  to  deploy  its  service  in  some  locations  in  a  manner 
 that  does  not  correspond  to  the  geography  of  the  BAS  market  areas,  and  note  that  Nextel  will  be  obligated  to  relocate  all  incumbent  BAS  operations  in  all  BAS  markets,  as  proposed  in  the  Nextel-  BAS  relocation 
 plan,  including  those  markets  where  Nextel  provides  partial,  minimal,  or  no  service. 


 618  Id.  at  7. 
 619  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  3-  4.  See  also    253  supra. 
 620  See  47  C.  F.  R.    74.690(  d)  and  78.40(  d-  e).  For  example,  a  BAS  licensees  operations  in  an  adjacent 
 market  may  need  to  be  relocated  even  though  Nextel  does  not  initiate  operations  in  that  adjacent  market. 
 621  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  5. 
129
 Federal  Communications  Commission  FCC  04-  168 
 130 
 257.  Nextel,  MSTV,  and  NAB  argue  that  if  one  or  more  MSS  entrant  is  prepared  to  launch  service  before  the  spectrum  is  cleared  in  all  markets,  a  key  principle  of  the  Nextel  plan  should  continue 
 to  apply  namely  that  Nextel  will  remain  responsible  for  paying  the  upfront  relocation  costs.  622  We  disagree  to  the  extent  that  this  principle  is  intended  to  prevent  MSS  licensees  from  clearing  BAS 
 incumbents  earlier.  Under  this  Report  and  Order,  MSS  licensees  will  retain  the  option  of  accelerating  the  clearing  of  those  markets  so  that  they  could  begin  operations  before  Nextel  has  completed  nationwide 
 clearing.  We  recognize  that  the  parties  will  have  to  work  cooperatively  to  ensure  a  smooth  transition  for  BAS  incumbents.  To  facilitate  this  process,  we  will  require  Nextel  to  file  with  the  Commission  and  copy 
 the  MSS  licensees,  within  thirty  days  after  the  effective  date  of  this  Report  and  Order,  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  will  have  thirty  days  to  review  the  Nextel  plan  623  and  identify  to  Nextel  and  the  Commission  which  of  the  top  thirty  TV  markets  and  fixed  BAS  operations,  if  any,  they  intend  to  invoke 
 involuntary  relocation.  624  If  MSS  licensees  choose  not  to  trigger  involuntary  relocation,  Nextel  will  proceed  under  its  plan  to  relocate  BAS  incumbents. 


 258.  Negotiation  Schedule.  The  Nextel-  BAS  relocation  plan  proposes  mandatory  negotiation  periods  between  Nextel  and  BAS  licensees  ending  February  28,  2005  for  stage-  one  relocations  and 
 December  31,  2005  for  stage-  two  relocations,  thus  providing  nine  months  for  negotiations  for  each  stage.  625  We  note  that  these  dates  were  contingent  on  the  Commission  releasing  its  decision  in  this 
 proceeding  on  May  31,  2004.  Because  of  the  time  that  has  passed  between  May  31  st  and  the  release  of  this  Report  and  Order,  we  will  extend  the  negotiation  periods  to  May  31,  2005  for  stage-  one  relocations  and 
 March  31,  2006  for  stage-  two  relocations.  MSS  licensees  may  voluntarily  join  in  these  negotiations  in  order  to  relocate  BAS  operations  in  markets  31  and  above.  We  encourage  MSS  licensees  to  work 
 cooperatively  with  Nextel  in  these  negotiations  because  all  parties  will  collectively  benefit  from  the  expeditious  relocation  of  BAS  incumbents  to  the  new  band  plan.  We  also  note  that  we  will  entertain 
 requests  filed  by  MSS  licensees  requesting  that  their  voluntary  participation  in  the  negotiations  between  Nextel  and  BAS  incumbents  initiate  their  mandatory  negotiation  period.  626 


 259.  Cost  sharing.  In  the  MSS  Third  R&  O,  we  noted  that  with  the  redesignation  of  the  1990-  2000  MHz  and  2020-  2025  MHz  bands  in  the  AWS  proceeding,  non-  MSS  licensees  that  may  begin  service 
 later  will  benefit  from  the  band  clearing  paid  for  by  MSS  licensees.  We  therefore  stated  that  we  will  provide  an  equitable  mechanism  by  which  MSS  licensees  can  recover  some  of  the  relocation  costs  incurred 
 from  other  licensees  who  will  benefit  from  the  band  clearing  of  incumbent  BAS  operations  from  the  1990-  2025  MHz  band.  However,  we  deferred  setting  forth  comprehensive  procedures  that  new  Fixed  and 
 Mobile  service  providers  (including  AWS  entrants)  in  these  bands  must  follow  to  reimburse  MSS  licensees 


 622  Id.  at  7-  8. 
 623  See    253-  254  supra. 
 624  The  one-  year  mandatory  negotiation  period  for  MSS  and  BAS  licensees  in  markets  1-  30  and  all  BAS 
 fixed  stations,  regardless  of  market  size,  is  already  in  effect  and  lasts  until  December  8,  2004.  After  this  date,  any  MSS  entrant  may  involuntarily  relocate  incumbent  BAS  operations.  See    57,  supra. 


 625  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  3-  4. 
 626  Because  BAS  incumbents  would  already  be  in  relocation  negotiations  with  Nextel,  allowing  MSS 
 licensees  to  accelerate  the  mandatory  negotiation  period  under  the  MSS  plan  for  markets  31  and  above  may  satisfy  the  intent  of  the  mandatory  negotiation  requirement. 
130
 Federal  Communications  Commission  FCC  04-  168 
 131 
 that  will  have  incurred  relocation  costs.  627 
 260.  As  noted  above,  under  the  Nextel-  BAS  relocation  plan,  Nextel  offers  to  pay  the  upfront  BAS  relocation  costs,  which  MSTV  and  NAB  estimate  will  be  $512  million.  Nextel  also  requests  that  the 


 Commission  require  MSS  licensees  in  the  1990-  2025  MHz  band  to  pay  their  pro  rata  share  of  the  cost  of  clearing  this  spectrum.  628 


 261.  We  have  decided  to  generally  follow  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,  except  as  discussed  below.  Therefore,  the  first  entrant  may  seek  reimbursement  from  subsequently  entering  licensees  for  a  proportional  share  of  the  first  entrants  costs  in 
 clearing  BAS  spectrum,  on  a  pro  rata  basis  according  to  the  amount  of  spectrum  each  licensee  is  assigned.  Consequently,  Nextel  is  entitled  to  seek  pro  rata  reimbursement  of  eligible  clearing  costs  incurred  during 
 the  36-  month  reconfiguration  period  from  MSS  licensees  that  enter  the  band  prior  to  the  end  of  that  period.  Nextel  will  be  required  to  inform  the  Commission  and  MSS  licensees  on  whether  it  will  or  will  not  be 
 seeking  reimbursement  from  the  MSS  licensees  12  months  after  the  effective  date  of  this  Report  and  Order.  629  Under  this  plan,  Nextel  would  pay  all  upfront  costs  and  receive  credit  for  BAS  relocation  in  the 
 800  MHz  true-  up  process,  less  any  MSS-  reimbursed  expenses.  Thus,  Nextel  would  no  longer  be  entitled  to  reimbursement  from  other  entrants  to  the  band  after  receiving  credit  for  its  relocation  costs  at  the  800 
 MHz  true-  up.  Further,  Nextel's  right  to  seek  reimbursement  from  any  MSS  entrants  entering  before  the  end  of  the  36-  month  reconfiguration  period  will  be  limited  to  costs  Nextel  incurred  for  clearing  the  top 
 thirty  markets  and  relocating  all  fixed  BAS  facilities,  regardless  of  market  size,  and  to  an  MSS  licensee's  pro  rata  share  of  the  1990-  2025  MHz  spectrum.  We  believe  that  limiting  the  amount  of  Nextels 
 reimbursement  in  this  manner  strikes  an  appropriate  balance  that  is  not  unreasonably  burdensome  on  Nextel  or  MSS  licensees.  630 


 262.  Similarly,  Nextel  is  also  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.  Any  reimbursement  by  Nextel  to  MSS  licensees  must  occur  before  the  800  MHz  true-  up  period 
 ends,  so  that  these  reimbursement  expenses  can  be  accounted  for  at  the  800  MHz  true-  up.  Both  Nextel  and  MSS  licensees  under  the  MSS  plan  must  clear  the  entire  1990-  2025  band  (a  total  of  thirty-  five  megahertz 
 of  spectrum)  while  only  operating  in  1990-  1995  MHz  (a  total  of  five  megahertz  of  spectrum)  and  in  2000-  2020  MHz  (a  total  of  twenty  megahertz  of  spectrum),  respectively.  Therefore,  Nextels  pro  rata  share 


 627  MSS  Third  R&  O,  18  FCC  Rcd  at  23644    10. 
 628  Nextel  proposes  that  the  payments  by  other  entrants  are  made  to  the  U.  S.  Treasury  because,  unlike 
 Nextel,  which  would  be  receiving  replacement  spectrum,  these  other  entrants  would  be  receiving  initial  licenses.  See  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  8.  We  decline  to  adopt  this  proposal.  By  allowing  Nextel  to 


 relocate  incumbent  BAS  licensees  and  retaining  our  existing  rules  that  allow  MSS  licensees  to  also  relocate  BAS  incumbents,  we  meet  the  key  objective  of  providing  BAS  licensees  with  relocation  to  comparable  facilities. 
 Adoption  of  the  proposal  would  not  further  these  core  relocation  objectives. 
 629  This  deadline  coincides  with  the  date  Nextel  is  required  to  submit  its  first  status  report  on  its  BAS 
 relocation  efforts. 
 630  Under  the  MSS  plan,  MSS  licensees  are  required  to  clear  the  top  30  BAS  markets  and  all  fixed  BAS 
 stations,  regardless  of  market  size,  before  beginning  operations.  The  accounting  among  MSS  licensees  to  settle  relocation  expenditures  would  not  occur  until  after  the  end  of  the  MSS  relocation  process.  MSS  Second  R&  O,  15 


 FCC  Rcd  at  12338    68. 
131
 Federal  Communications  Commission  FCC  04-  168 
 132 
 represents  the  costs  to  relocate  one-  seventh  of  the  spectrum. 
 263.  Interference  Issues/  Technical  Standards.  In  order  to  minimize  interference  from  systems  in  the  1910-  1915  MHz/  1990-  1995  MHz  blocks,  we  are  requiring  Nextel  to  conform  to  the  same  technical 


 standards  applicable  to  licensed  PCS  systems.  631  The  Commission  adopted  TIA  Bulletin  TSB  10-  F  previously  as  the  criteria  for  determining  PCS  to  FS  interference.  632  Due  to  the  technical  similarity  of 
 Nextels  service  to  PCS,  which  operates  in  nearby  bands  and  for  which  TSB  10-  F  is  well-  suited,  we  conclude  that  the  criteria  specified  in  TSB  10-  F  should  be  equally  suitable  to  determine  where  sharing 
 would  be  possible  between  BAS  and  Nextel  operations  in  the  1990-  2025  MHz  band.  However,  procedures  other  than  TSB  10-  F  that  follow  generally  acceptable  good  engineering  practices  may  also  be 
 acceptable.  633  Our  conclusion  is  consistent  with  the  MSS  Second  R&  O  wherein  the  Commission  determined  that,  in  the  case  of  new  ancillary  terrestrial  component  (ATC)  service/  FS  interference  in  the 
 2165-  2200  MHz  band,  TIA  Bulletin  10-  F  would  be  the  relevant  standard.  634  In  the  MSS  Third  R&  O,  we  affirmed  that  TSB  10-  F,  or  its  successor  standard,  is  an  appropriate  standard  for  purposes  of  triggering 
 relocation  obligations  by  new  terrestrial  (ATC  or  AWS)  entrants  in  the  2  GHz  band  to  relocate  FS  incumbents.  635  For  computing  interference  between  satellite  and  fixed  services,  the  Commission  relies  on 
 the  methodology  and  criteria  in  TIA  Bulletin  TSB-  86.  636 
 (ii)  MSS-  BAS  Plan 
 264.  In  this  section,  we  address  MSS  licensee  obligations  to  relocate  incumbent  BAS  operations  in  the  1990-  2025  MHz  band  and  address  petitions  for  reconsideration  and  clarification  of  the 


 MSS  Third  R&  O.  We  grant  in  part  and  deny  in  part  the  petitions  for  reconsideration  and  clarification  filed  by  MSTV,  NAB,  SBE,  and  Boeing.  We  have  discussed,  above,  the  process  by  which  Nextel  may  enter  the 
 band  and  relocate  incumbent  BAS  licensees,  and  how  that  process  relates  to  the  existing  relocation  procedures  that  we  adopted  for  MSS  licensees.  Now,  we  turn  our  attention  to  the  existing  relocation  rules 
 that  have  already  been  established  for  MSS.  Except  as  discussed  below,  those  rules  will  remain  in  effect. 
 265.  Under  the  MSS  plan,  BAS  facilities  in  the  top-  thirty  TV  markets  and  all  fixed  BAS  operations,  regardless  of  market  size,  will  be  cleared  first  and  the  remaining  markets  in  two  segments 


 (markets  31-  100  within  three  years  after  commencement  of  MSS  operations  and  markets  101-  210  within 
 631  See  generally,  47  C.  F.  R.    24  et.  seq.  We  will  ensure  that  Nextels  base/  mobile  operations  conform  to 
 lower-  adjacent  broadband  PCS  operations.  Specifically,  we  will  require  Nextel  to  operate  its  mobile/  portable  stations  in  the  1910-  1915  MHz  block  and  operate  its  base  stations  in  the  1990-  1995  MHz  block.  See  47  C.  F.  R.   


 24.229(  c)  in  Appendix  C  infra. 
 632  See  47  C.  F.  R.    24.237.  See  also  Amendment  of  the  Commissions  Rules  to  Establish  New  Personal 
 Communications  Services,  Second  Report  and  Order,  8  FCC  Rcd  7700,  7762    150  (1993);  Memorandum  Opinion  and  Order,  9  FCC  Rcd  4957,  5029    186  (1994).  Bulletin  TSB  10-  F  describes  interference  criteria  for  microwave 


 systems  in  public  fixed  radio  services  and  private  operational  fixed  microwave  service  bands. 
 633  47  C.  F.  R.    101.105  (c). 


 634  See  MSS  Second  R&  O,  15  FCC  Rcd  at  12346    97,  n.  160.  See  also  47  C.  F.  R.  101.79  (a). 
 635  See  MSS  Third  R&  O,  18  FCC  Rcd  at  23672    70. 
 636  TSB-  86  was  developed  by  a  Joint  Working  Group  comprised  of  the  Telecommunications  Industry 
 Association  (TIA)  Engineering  Subcommittees  on  Spectrum  and  Orbit  Utilization,  the  TIA  Engineering  Subcommittee  on  Interference  Criteria  for  Microwave  Systems,  and  the  National  Spectrum  Managers  Association. 


 MSS  Second  R&  O,  15  FCC  Rcd  at  12340-  41    78,  n.  131. 
132
 Federal  Communications  Commission  FCC  04-  168 
 133 
 five  years).  The  Commission  recognized  that  the  services  offered  via  the  MSS  satellites,  once  operational,  will  cover  all  of  the  United  States  simultaneously.  Therefore,  BAS  facilities  in  the  band  would  have  to  be 
 relocated  or  cease  operation  in  order  to  minimize  interference  between  the  two  services.  637  The  Commission  instituted  this  gradual  approach  to  balance  the  needs  of  the  incumbents  and  future  MSS  users 
 of  the  band,  notwithstanding  the  added  challenges  to  BAS  operations.  638 
 266.  Comments.  The  broadcast  parties  contend  that  the  Commissions  decision  to  require  MSS  licensees  to  relocate  BAS  incumbents  to  the  final  channel  plan  in  one  step  (rather  than  in  two  steps  under 


 the  original  plan),  resulting  in  the  temporary  vacating  of  two  BAS  channels  (rather  than  one  channel  under  the  original  plan)  until  all  BAS  operations  are  relocated,  will  significantly  curtail  the  ability  of  BAS 
 incumbents  in  TV  markets  31  and  above  to  provide  electronic  news  gathering  (ENG)  services  to  the  public.  639  According  to  the  broadcast  parties,  the  Commissions  decision  underestimates  the  harm  to  BAS 
 operations,  particularly  in  the  local  coverage  of  emergencies,  news,  and  sporting  events,  outside  the  top  30  markets  because  these  markets  will  lose  two  channels  for  up  to  five  years  before  being  relocated.  The 
 broadcast  parties  further  contend  that  dual  band  plans  during  the  transition  will  cause  interference  and  inter-  market  coordination  problems.  640  MSTV  and  NAB  also  argue  that  the  Commissions  decision  to 
 modify  the  BAS  relocation  plan  to  immediately  begin  Phase  II  is  contrary  to  precepts  of  administrative  law  and  the  public  interest.  641  The  broadcast  parties  request,  in  part,  that  the  Commission  devise  an  alternative 
 relocation  plan  that  would  not  require  BAS  incumbents  in  markets  31  and  above  to  cease  operations  on  two  channels  without  receiving  compensation  prior  to  vacating  the  spectrum  and  further  that  the 
 Commission  consider  various  means  to  ensure  that  MSS  licensees  pay  their  pro  rata  share  of  BAS  relocation. 


 267.  Alternatively,  Boeing  maintains  that  the  Commission  should  reinstate  the  original  two-phase  plan,  with  the  modifications  it  proposes  to  Phase  I,  and  not  trigger  Phase  II  immediately.  642  Boeing 
 argues  that  the  benefits  to  retaining  the  two-  phase  BAS  relocation  process  are  that  it:  1)  reduces  the  upfront  costs  for  BAS  relocation  before  MSS  operators  begin  service;  2)  is  a  more  efficient  use  of 
 spectrum;  3)  provides  the  Commission  with  more  time  to  resolve  regulatory  uncertainties  about  the  types  of  new  services  and  the  procedures  for  the  new  entrants  in  the  1990-  2025  MHz  band;  and  4)  gives  BAS 
 manufacturers  more  time  for  the  design  and  development  of  digital  BAS  equipment.  643 


 637  Since  the  1990-  2025  MHz  band  is  the  MSS  uplink  band,  BAS  receivers  would  be  subject  to 
 interference  from  nearby  MSS  handsets. 
 638  MSS  Second  R&  O,  15  FCC  Rcd  at  12325-  26    25-  28. 


 639  See  MSTV/  NAB  Joint  Petition  at  6-  9  &  12-  15;  SBE  Petition  at  1-  2;  see  also  RTNDA  Comments  at  3- 
 6.  But  see  Boeing  Opposition  at  4-  7  &  9-  10;  Boeing  Reply  at  2-  3;  ICO  Reply  at  3-  4. 
 640  See  SBE  Petition  at  3;  MSTV/  NAB  Joint  Petition  at  10-  12.  But  see  Boeing  Opposition  at  11-  14. 


 641  In  addition,  the  broadcast  parties  contend  that  the  revised  relocation  plan  is  inconsistent  with  the 
 Commissions  localism,  diversity,  public  safety,  and  homeland  security  initiatives.  See  MSTV/  NAB  Joint  Petition  at  15-  21;  RTNDA  Comments  at  4.  But  see  Boeing  Opposition  at  10-  11. 


 642  See  Boeing  Petition  at  3-  8;  see  also  ICO  Reply  at  4-  6. 
 643  See  Boeing  Petition  at  5-  8.  But  see  MSTV/  NAB  Joint  Opposition  3-  7;  MSTV/  NAB/  SBE  Joint  Reply 
 at  3-  8.  In  their  opposition  and  reply,  the  broadcast  parties  object  to  the  aforementioned  Boeing  proposal  by  arguing  that  Phase  II  compensation  would  be  delayed  until  after  the  sunset  date.  Therefore,  they  request  that  the 


 Commission  eliminate  the  ten-  year  sunset  period  and  create  incentives  that  tie  the  ability  of  entrants  to  continue  their  own  operations  to  timely  fulfillment  of  their  relocation  compensation  obligations  to  BAS  incumbents.  See 
 (continued.) 
133
 Federal  Communications  Commission  FCC  04-  168 
 134 
 268.  In  addition,  the  broadcast  and  MSS  parties  request  that  the  Commission  address  unresolved  questions  regarding  the  relocation  obligations  (e.  g.,  the  timing  and  scope  of  reimbursement)  of 
 new  entrants  to  the  2  GHz  band,  as  well  as  new  services  that  are  relocated  from  other  spectrum  bands  (e.  g.,  Nextel).  644  Specifically,  the  commenters  propose  that  the  Commission  require  reimbursement  of  BAS 
 relocation  expenses  by  later  entrants,  on  a  pro  rata  basis,  before  these  new  entrants  begin  operation  in  the  2  GHz  band.  645  Finally,  Nextel,  MSTV  and  NAB  argue  that  in  the  event  an  MSS  entrant  begins  operations 
 before  all  BAS  incumbents  have  been  relocated  by  Nextel,  no  BAS  incumbent  will  be  required  to  vacate  any  spectrum  at  1990-  2025  MHz  until  after  it  has  been  relocated  to  the  new  band  plan  at  2025-  2110 
 MHz.  646 
 269.  Decision.  On  reconsideration,  we  will  no  longer  require  BAS  licensees  in  TV  markets  31-  210  to  cease  operations  on  channels  1  and  2  until  they  have  been  relocated  to  their  final  channel  plan  at 


 2025-  2110  MHz,  unless  licensees  in  a  BAS  market  indicate  as  part  of  the  relocation  negotiation  process  that  they  do  not  wish  to  be  relocated,  in  which  case  they  must  immediately  restrict  their  operations  to  the 
 2025-  2110  MHz  band.  We  are  making  this  modification  to  the  MSS  plan  to  accommodate  Nextels  entry  into  the  band  consistent  with  the  Nextel-  BAS  relocation  plan,  as  described  herein,  which  does  not  require 
 BAS  incumbents  in  markets  31  and  above  to  cease  operations  on  two  channels  without  receiving  compensation  prior  to  vacating  the  spectrum. 


 270.  We  find  that  as  a  result  of  our  actions  here  the  two  relocation  plans  will  complement  each  other  and  expedite  BAS  relocation  in  the  band.  Under  the  Nextel-  BAS  relocation  plan,  the  relocation  of  all 
 BAS  incumbents  will  be  completed  by  May  2007.  Under  the  MSS  plan,  MSS  licensees  may  begin  operations  once  the  top  thirty  BAS  markets  and  all  fixed  BAS  stations,  regardless  of  market  size,  have 
 been  cleared  647  and  must  certify  that  their  systems  are  operational  by  no  later  than  July  2007.  648  Nextel  will  likely  relocate  most  BAS  licensees  before  MSS  licensees  begin  operations  under  their  milestone 
 requirements.  In  addition,  as  described  previously,  MSS  operators  will  have  an  opportunity  to  work  with  Nextel  to  relocate  BAS  licensees  in  some  additional  markets.  If  MSS  licensees  begin  operations  before  all 
 BAS  incumbents  are  relocated,  we  expect  that  MSS  and  BAS  licensees  will  work  together  to  minimize  interference;  however,  MSS  licensees  would  have  to  accept  interference  from  the  remaining  BAS  users 


 (Continued  from  previous  page)  MSTV/  NAB/  SBE  Joint  Reply  at  8.  In  its  reply,  Boeing  argues  that  no  justification  exists  to  eliminate  the  ten-  year 
 sunset  deadline  and  points  to  the  Commissions  decision  in  the  MSS  Third  R&  O,  which  states  that  we  continue  to  believe  that  a  sunset  date  is  a  vital  component  of  the  Emerging  Technologies  relocation  principles.  See  Boeing 
 Reply  at  4  (citing    46  of  the  MSS  Third  R&  O).  Because  we  are  not  adopting  Boeings  plan,  we  need  not  address  MSTV,  NAB  and  SBEs  request  to  eliminate  the  sunset  period. 


 644  See  Boeing  Petition  at  8-  13;  Boeing  Opposition  at  8;  MSTV/  NAB/  SBE  Joint  Reply  at  9;  ICO  Reply  at 
 7. 
 645  Id. 


 646  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  7-  8. 
 647  Under  the  MSS  plan,  MSS  licensees  may  invoke  involuntary  relocation  of  BAS  operations  in  the  top 
 30  TV  markets  and  fixed  BAS  stations,  regardless  of  market  size,  after  December  8,  2004.  As  we  stated  earlier,  MSS  licensees  will  have  an  opportunity  to  coordinate  with  Nextel  on  which  top  30  BAS  markets  and  fixed  BAS 


 stations  the  MSS  licensees  plan  to  invoke  involuntary  relocation.  See    257  supra. 
 648  This  deadline  applies  to  all  2  GHz  MSS  licensees  except  TMI.  TMI  must  certify  that  its  system  is  fully 
 operational  by  November  2008.  See  TMI  Communications  and  Company,  Limited  Partnership  and  TerreStar  Networks,  Inc.  Application  for  Review  and  Request  for  Stay,  Memorandum  Opinion  and  Order,  FCC  04-  144 


 (released  June  29,  2004). 
134
 Federal  Communications  Commission  FCC  04-  168 
 135 
 until  they  are  relocated.  Further,  the  Nextel-  BAS  relocation  plan  would  substantially  shorten  the  time  period  during  which  adjacent  BAS  markets  would  operate  on  different  channel  plans,  thereby  mitigating 
 the  broadcast  parties  concerns  regarding  interference  and  inter-  market  coordination  problems  resulting  from  prolonged  dual  band  plans.  Finally,  we  believe  that  adoption  of  a  relocation  plan  that  is  based  on  the 
 proposed  Nextel-  BAS  relocation  plan,  as  described  herein,  provides  certain  benefits  to  MSS  licensees.  In  particular,  Nextel  has  agreed  to  clear  BAS  nationwide  within  thirty  months  and  to  pay  the  upfront  costs  for 
 BAS  relocation. 
 271.  We  deny  Boeings  petition  with  respect  to  its  request  for  the  reinstatement  of  the  original  two-  phase  MSS  plan  for  BAS  relocation.  As  we  discussed  in  the  MSS  Third  R&  O,  we  found  that  given  the 


 need  to  provide  for  rapid  introduction  of  AWS  in  the  2  GHz  BAS  band,  a  two-  phase  relocation  was  no  longer  appropriate.  649  We  affirm  this  finding.  We  note  that  our  decision  herein  to  allow  Nextel  to  enter 
 the  band  requires  that  BAS  incumbents  be  relocated  expeditiously  to  the  final  Phase  II  channel  plan.  We  also  find  that  adoption  of  the  Boeing  plan  is  not  necessary  to  address  its  concerns  (e.  g.,  lower  MSS  upfront 
 relocation  costs)  because  these  concerns  will  be  satisfied  by  implementation  of  the  Nextel-  BAS  relocation  plan,  as  revised  herein. 


 272.  We  now  address  the  remaining  arguments  proffered  by  the  parties.  We  find  that  our  decision  to  adopt  a  relocation  plan  that  is  based  on  the  Nextel-  BAS  relocation  plan,  as  described  herein, 
 renders  moot  MSTV  and  NABs  procedural  and  public  interest  arguments.  650  Further,  our  decision  today  addresses  the  relocation  obligations  of  Nextel,  a  new  entrant  into  the  1990-  2025  MHz  band.  With  respect 
 to  the  broadcast  and  MSS  parties  request  to  resolve  the  relocation  obligations  of  other  new  entrants  in  the  2  GHz  band,  we  defer  resolution  of  these  issues  to  the  appropriate  docket.  651 


 273.  Issues  for  Clarification.  Pointing  to  Paragraph  58  of  the  MSS  Third  R&  O,  SBE,  MSTV  and  NAB  request  that  the  Commission  clarify  the  relationship  between  BAS  licensees  operating  on 
 different  channel  plans  to  avoid  causing  coordination  problems  within  and  between  TV  markets.  652  Paragraph  58  of  the  MSS  Third  R&  O  states  in  part  that: 


 [b]  ecause  the  continued  use  of  the  existing  channel  plan  could  disrupt  BAS  licensees  that  have  relocated  to  the  Phase  II  channel  plan  and  lead  to  the 
 difficulties  in  coordination  that  SBE  describes,  we  will  permit  continued  use  of  the  old  channel  plan  only  if  all  BAS  licensees  in  a  market  will  agree  to  such 
 operation.  653  Moreover,  BAS  licensees  in  such  markets  must  operate  on  a  secondary  basis  to  other  BAS  licensees  using  the  Phase  II  channel  plan  and  must 
 be  prepared  for  the  potential  disruption  associated  with  secondary  operation,  such 
 649  MSS  Third  R&  O,  18  FCC  Rcd  at  23653-  61. 


 650  MSTV  and  NAB  state  that  the  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  addresses  the  concerns  raised 
 in  their  joint  petition.  See  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  5;  see  also  SBE  May  7,  2004  Ex  Parte  at  2. 
 651  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. 


 652  MSTV/  NAB  Joint  Petition  at  22;  SBE  Petition  at  4-  5. 
 653  In  the  MSS  Second  R&  O,  we  permitted  BAS  licensees  the  choice  of  surrendering  BAS  channel  1 
 during  Phase  I  or  relocating  to  the  14.  5  MHz-  and  15  MHz-  wide  Phase  I  channels.  To  facilitate  an  orderly  coordination  process  and  to  prevent  interference,  we  required  all  BAS  licensees  within  the  same  Nielsen  DMA  to 


 coordinate  and  chose  one  of  these  channel  plans.  MSS  Second  R&  O,  15  FCC  Rcd  at  12330    45. 
135
 Federal  Communications  Commission  FCC  04-  168 
 136 
 as  the  interference  likely  to  be  caused  by  a  BAS  licensee  operating  on  the  Phase  II  channels  that  enters  the  market  to  cover  a  sporting  event  or  breaking  news 
 story.  654 
 274.  According  to  SBE,  there  is  a  conflict  between  Section  74.24(  c)  and  Paragraph  58  of  the  MSS  Third  R&  O  655  .  Under  Section  74.24(  c),  a  top-  thirty  market  TV  pickup  station  that  has  converted  to 


 digital  and  operating  on  the  new  band  plan  but  is  temporarily  operating  outside  its  licensed  area  to  respond  to  a  major  news  event  would  be  secondary  to  the  local  TV  pickup  station  where  the  major  news  event  is 
 occurring.  656  SBE  contends  that,  under  Section  74.24(  c),  if  the  local  TV  pickup  station  is  in  a  market  that  has  not  converted  to  digital  and  the  new  band  plan,  it  would  have  primary  status  over  any  visiting  TV 
 pickup  station.  However,  we  stated  in  the  MSS  Third  R&  O  that  a  visiting  TV  pickup  station  that  had  converted  to  the  Phase  II  channel  plan  would  have  primary  status  over  the  local  TV  pickup  station  that  had 
 not  converted.  Thus,  SBE  seeks  clarification  on  whether  Section  74.24(  c)  trumps  Paragraph  58  of  the  MSS  Third  R&  O  or  vice  versa.  Further,  MSTV/  NAB  claim  that  it  is  unclear  whether  this  applies  to  all 
 broadcasters  operating  on  the  old  channel  plan  or  only  in  markets  that  elect  to  remain  on  the  old  channel  plan  even  after  they  are  entitled  to  relocation  compensation.  657 


 275.  SBE  also  requests  that  the  Commission  clarify  what  it  means  by  the  if  all  BAS  licensees  in  a  market  will  agree  language  in  Paragraph  58  of  the  MSS  Third  R&  O  mentioned  above.  658  Specifically, 
 SBE  seeks  clarification  on  whether:  1)  a  single  station  would  be  able  to  block  or  force  the  conversion  to  the  new  band  plan  of  other  stations  in  the  market;  or  2)  the  station  that  chooses  not  to  convert  becomes 
 secondary  to  the  stations  that  do  convert.  659  According  to  MSTV  and  NAB,  it  is  also  unclear  whether  the  primary  status  of  BAS  licensees  operating  on  the  new  channel  plan  would  allow  a  single  broadcaster  in  a 
 small  or  medium  market  to  essentially  compel  other  broadcasters  in  the  market  to  convert  to  the  new  channel  plan  before  receiving  compensation  by  self-  relocating  during  the  transition  period.  660 


 276.  We  clarify  that  Paragraph  58  does  not  alter  the  operation  of  Section  74.24(  c),  i.  e.,  that  any  local  TV  pickup  station  will  have  primary  status  over  any  visiting  TV  pickup  station,  even  if  the  local 
 market  as  a  whole  or  the  individual  local  TV  pickup  station  itself  has  not  converted  to  the  Phase  II  channel  plan.  We  believe  this  outcome  is  consistent  with  the  overall  purpose  of  the  short-  term  use  rule,  which  will 
 continue  to  operate  after  the  BAS  relocation  is  completed.  Further,  although  we  believe  it  would  be  best  if  all  stations  in  a  market  agree  to  use  the  same  channel  plan,  an  individual  station  that  chooses  to  remain  on 
 the  old  channel  plan  will  be  secondary  to  other  stations  within  the  same  market  that  convert  to  the  Phase  II  plan  and  also  to  any  TV  pickup  station  that  has  converted  to  the  Phase  II  plan  and  is  visiting  the  local 
 market.  This  should  encourage  parties  to  convert  to  the  final  channel  plan  expeditiously. 


 654  MSS  Third  R&  O,  18  FCC  Rcd  at  23668    58. 
 655  SBE  Petition  at  4. 
 656  47  C.  F.  R.  74.24(  c).  Section  74.24(  c)  states  that  a  BAS  station  operating  under  short-  term  authority 
 does  so  on  a  secondary,  non-  interference  basis  to  regularly  authorized  stations. 
 657  MSTV/  NAB  Joint  Petition  at  22. 


 658  SBE  Petition  at  4-  5. 
 659  Id. 
 660  MSTV/  NAB  Joint  Petition  at  22. 
136
 Federal  Communications  Commission  FCC  04-  168 
 137 
 4.  Method  for  Determining  Equitable  Compensation 
 277.  The  record  reflects  considerable  disagreement  among  the  parties  on  whether  the  grant  of  1.9  GHz  spectrum  rights  to  Nextel  constitutes  equitable  compensation  or  an  unwarranted  windfall.  661 


 Initially,  the  Consensus  Parties  proposed  that  Nextel  would  relinquish  approximately  ten  megahertz  of  700,  800  and  900  MHz  spectrum,  pay  for  band  reconfiguration,  and  receive  ten  megahertz  of  1.9  GHz 
 spectrum.  662  Other  parties,  however,  argue  that  the  Commission  should  determine  whether  the  value  of  the  spectrum  being  relinquished  by  Nextel,  when  added  to  the  costs  Nextel  incurs  in  band  reconfiguration,  is 
 equal  to  the  fair  market  value  of  the  1.9  GHz  spectrum.  663  Many  of  these  parties  further  argue  that  the  market  value  (FMV)  of  the  1.9  GHz  spectrum  far  exceeds  the  value  of  relinquished  spectrum  and  other 
 costs  that  Nextel  would  incur  under  the  Consensus  Parties  proposal.  664  Nextel  responds  that  the  1.9  GHz  spectrum  is  equitable  compensation  even  under  a  value-  for-  value  approach.  665 


 278.  We  conclude  that  a  value  for  value  approach  is  the  most  appropriate  for  determining  equitable  compensation  in  this  instance.  We  reject  the  approach  proposed  by  the  Consensus  Parties 
 because  we  do  not  regard  the  combined  700,  800,  and  900  MHz  spectrum  that  Nextel  offered  to  relinquish  as  being  equivalent  to  the  1.9  GHz  spectrum.  First,  as  discussed  in    207  supra,  we  are  excluding  Nextels 
 900  MHz  spectrum  from  consideration  in  this  order,  so  it  does  not  help  to  balance  the  bandwidth  exchange.  Second,  while  we  are  accepting  Nextels  offer  to  relinquish  its  700  MHz  Guard  Band  spectrum, 
 we  regard  the  value  of  this  spectrum  as  de  minimis  because  it  cannot  be  made  available  to  public  safety  in  the  near  term  and  any  potential  long-  term  benefit  it  might  afford  to  public  safety  or  any  value  it  might  have 
 in  the  marketplace  is  purely  speculative  at  this  point.  Having  excluded  700  MHz  and  900  MHz  from  consideration,  the  remaining  800  MHz  spectrum  that  Nextel  is  relinquishing  even  as  recently  augmented 
 to  an  average  of  4.5  megahertz  does  not  equate  on  a  megahertz-  for-  megahertz  basis  with  ten  megahertz  of  1.9  GHz  spectrum,  absent  some  further  balancing  of  the  equities.  We  also  reject  the  option  of  adjusting 
 the  megahertz-  for-  megahertz  balance  by  providing  Nextel  with  a  smaller  bandwidth  increment,  e.  g.,  4.5  megahertz  in  the  1.9  GHz  band.  We  believe  this  approach  would  segment  the  1.9  GHz  band  in  a  fashion 
 that  does  not  make  sense  from  a  technical  standpoint  and  would  result  in  inefficient  use  of  the  spectrum.  We  believe  that  providing  Nextel  uniform  nationwide  access  to  ten  megahertz  in  the  1.9  GHz  band  not 
 only  helps  to  ensure  that  Nextel  receives  comparable  value  for  its  loss  of  spectrum  rights  and  expenses  it  will  incur,  but  also  will  promote  efficient  use  of  the  1.9  GHz  band.  To  account  for  these  and  other 
 differences,  therefore,  we  conclude  that  the  comparative  value  of  spectrum  and  other  costs  incurred  by  Nextel  to  support  rebanding  must  be  considered  under  a  value  for  value  approach. 


 661  See  Comments  of  Alltel,  et.  al.  to  Consensus  Parties  Reply  Comments  at  12-  13;  Comments  of  Verizon 
 to  Consensus  Parties  Reply  Comments  at  10;  Comments  of  Access  Spectrum  to  Supplemental  Comments  of  the  Consensus  Parties  at  13-  14;  Comments  of  Alltel,  et.  al.  to  Supplemental  Comments  of  the  Consensus  Parties  at  7; 


 Comments  of  Verizon  to  Supplemental  Comments  of  the  Consensus  Parties  at  11-  12;  (claiming  that  the  grant  of  1.9  GHz  spectrum  to  Nextel  would  result  in  a  windfall).  But  see  Comments  of  Nextel  to  Consensus  Parties  Reply 
 Comments  at  24-  27;  Comments  of  Nextel  to  Supplemental  Comments  of  the  Consensus  Parties  at  15-  17;  Reply  Comments  of  the  Consensus  Parties  to  Supplemental  Comments  of  the  Consensus  Parties  at  50;  Reply  Comments 
 of  Nextel  to  Supplemental  Comments  of  the  Consensus  Parties  at15-  17  (claiming  that  grant  of  1.9  GHz  spectrum  to  Nextel  will  make  Nextel  whole  in  return  for  substantial  spectral  contributions). 


 662  See  Consensus  Parties  Reply  Comments  at  17-  19. 
 663  See  Kane  Reece  Study;  Kane  Reece  Study  II;  CTIA  April  29  Ex  Parte. 
 664  See  Kane  Reece  Study  at  41-  58;  Kane  Reece  Study  II  at  8-  12. 
 665  See  Sun  Fire  Study  at  13-  33. 
137
 Federal  Communications  Commission  FCC  04-  168 
 138 
 a.  Valuation  of  1.9  GHz  Spectrum 
 279.  We  begin  with  the  value  of  the  ten  megahertz  of  spectrum  at  1910-  1915  MHz/  1990-  1995  MHz.  Three  parties  Verizon,  CTIA,  and  Nextel  have  submitted  valuation  studies  of  the  1.9  GHz 


 spectrum,  using  different  analytical  methods  and  yielding  different  conclusions: 
 280.  Verizon  Wireless    Kane  Reece  Study.  On  October  27,  2003,  Verizon  Wireless  submitted  a  valuation  report  prepared  by  Kane  Reece  Associates,  a  national  appraisal  firm.  666  The  Kane  Reece  study 


 concludes  that  [  i]  f  the  Consensus  Plan  were  adopted,  the  value  of  Nextels  spectrum  would  increase  by  $7.2  billion.  667  The  Kane  Reece  study  avers  that  [  a]  giveaway  of  the  1.9  GHz  PSC  band    would  result 
 in  a  significant  windfall  to  Nextel  while  denying  the  public  the  value  of  this  public  resource.  668  The  Kane  Reece  study  further  estimates  that  [  t]  he  FMV  of  10  MHz  at  1.9  GHz  is  appraised  at  nearly  $  5.3 
 billion,  669  which  would  equate  to  approximately  $1.82  per  MHz  per  person  (MHz-  pop).  This  estimate  is  based  primarily  on  an  approach  which  estimates  (using  several  different  approaches)  the  enterprise  value 
 (EV)  of  mobile  wireless  operators  and  then  subtracts  the  value  of  physical  assets  and  identifiable  intangible  assets.  The  remaining  residual  is  then  interpreted  as  the  value  of  the  spectrum  licenses. 


 281.  CTIA.  In  a  July  9,  2003,  ex  parte  letter,  CTIA  proposed  that  the  Commission  use  two  private  market  transactions  involving  PCS  licenses  to  estimate  the  value  of  the  1.9  GHz  G  block  that 
 would  be  assigned  to  Nextel  as  replacement  spectrum  under  the  Consensus  Plan.  670  In  the  first  transaction,  Verizon  Wireless  acquired  PSC  licenses  and  other  assets  from  Northcoast  Communications  for  $750 
 million.  671  In  the  second  transaction,  Cingular  seeks  to  acquire  PCS  licenses  from  NextWave  Telecom  for  $1.5  billion.  672  Based  on  these  transactions,  CTIA  estimates  the  value  of  the  1.9  GHz  spectrum  at  between 


 666  See  generally  Kane  Reece  Study  n.  185  supra;  Letter  from  John  Scott,  Vice  President  and  Deputy 
 General  Counsel    Regulatory  Law,  Verizon  Wireless,  WT  Docket  No.  02-  55  at  2  (dated  Feb.  26,  2004)  (Verizon  Feb.  26,  2004  Ex  Parte  Letter). 


 667  Verizon  Feb.  26,  2004  Ex  Parte  Letter  at  2. 
 668  Id. 
 669  Id. 
 670  See  Letter  from  Diane  Cornell,  Vice  President,  CTIA,  WT  Docket  No.  02-  55  (filed  July  9,  2003) 
 (CTIA  Filing). 
 671  The  data  used  by  CTIA  in  its  evaluation  of  the  Verizon-  North  Coast  Transaction  are  as  follows: 


 Purchase  Price  $750,000,000  POPS  47,400,000 
 MHz  10  Price/  POP/  MHz  $1.58 
 See  Id. 
 672  The  data  used  by  CTIA  in  its  evaluation  of  the  Cingular-  NextWave  Transaction  are  as  follows: 


 Purchase  Price  *  $1,500,000,000  POPS  80,700,000 
 MHz  10  Price/  POP/  MHz  $1.86 
 *  We  note  that  CTIA  bases  the  purchase  price  estimate  on  press  and  analyst  reports.  See  id. 
138
 Federal  Communications  Commission  FCC  04-  168 
 140 
 value  is  one  that  is  a  synthesis  of  several  approaches.  679 
 286.  Because  they  reasonably  apply  standard  and  valid  asset  appraisal  techniques,  we  conclude  that  the  Verizon  Wireless  and  Nextel  studies,  taken  together,  define  a  reasonable  range  for  the  value  of  a 


 ten  megahertz  nationwide  spectrum  license  of  $1.25  to  $1.82  per  MHz-  pop.  One  estimate  provided  in  the  CTIA  filing  exceeds  $1.82  per  MHz-  pop;  however  that  estimate  relies  on  information  in  a  press  account  of 
 a  spectrum  sale  transaction  that  later  proved  to  be  inaccurate.  680  Further,  although  Verizon  Wireless  presents  several  other  figures  as  being  consistent  with  its  preferred  estimate,  all  such  figures  are  less  than 
 $1.82  per  MHz-  pop.  That  is,  Verizon  Wireless  applied  a  discounted  cash  flow  analysis  to  a  hypothetical  firm  by  adding  ten  megahertz  of  spectrum  to  its  ongoing  business  value;  and,  on  that  basis  estimated  the 
 ten  megahertz  of  spectrum  at  $1.73  per  MHz-  pop.  681  A  market  approach  of  looking  at  guidelines  from  publicly  traded  companies  values  the  spectrum  at  $1.61  per  MHz-  pop,  682  and  a  comparable  spectrum  sales 
 approach  values  the  spectrum  at  $1.51  per  MHz-  pop.  683 
 287.  In  order  to  identify  an  appropriate  value  amount  that  is  attributed  to  Nextel  for  receipt  of  the  1.9  GHz  spectrum  rights,  one  must  go  beyond  identifying  a  reasonable  valuation  range  and  place  a 


 specific  value  on  the  1.9  GHz  license.  As  further  explained  below,  in  reviewing  the  detailed  application  of  the  valuation  methods  used  in  the  Kane  Reece  Study  and  Sun  Fire  Study,  and  also  considering  all  the 
 subsequent  filings  on  valuation,  we  find  that  the  $1.82  estimate  likely  overstates  the  true  value  of  this  spectrum,  and  the  $1.25  estimate  likely  understates  the  true  value.  684  Thus,  neither  end  point  in  the 
 reasonable  value  range  likely  represents  the  best  point  estimate  for  this  value.  We  identify  a  best  point  estimate  by  focusing  on  several  recent  comparable  secondary  market  transactions. 


 288.  We  believe  the  Verizon  Wireless  application  of  an  EV-  based  calculation  results  in  an  uncertain  and  likely  overestimated  value  of  the  spectrum  license.  A  significant  degree  of  uncertainty  arises 
 for  several  reasons.  First,  the  EV  approach  inherently  requires  making  a  large  number  of  assumptions.  This  is  particularly  true  when,  as  is  the  case  with  the  Kane  Reece  Study,  enterprise  value  is  estimated  by  a 
 mix  of  income  (or  discounted  cash  flow)  and  market  approaches.  Thus,  for  example,  under  the  market  approach,  the  EV  and  license  value  estimates  are  very  sensitive  to  the  stock  prices  taken  as  starting  points, 


 679  See,  for  example,  Shannon  P.  Pratt,  Robert  F.  Reilly,  and  Robert  P.  Schweihs,  Valuing  a  Business:  The 
 Analysis  and  Appraisal  of  Closely  Held  Companies,  Fourth  Edition,  McGraw-  Hill  (2000),  at  437-  448. 
 680  The  CTIA  Filing,  made  at  a  time  that  the  Cingular  acquisition  of  certain  NextWave  spectrum  was  only 
 Proposed/  Reported,  uses  a  $1.5  billion  purchase  price,  citing  as  sources  the  New  York  Times  and  three  analyst  reports  (Bear  Stearns  6/  12/  03,  Credit  Suisse/  First  Boston  (5/  28/  03,  and  Goldman  (5/  28/  03).  As  the  Sun  Fire  Study 


 points  out  (at  31,  footnote  73),  the  correct  purchase  price  was  later  disclosed  to  be  $1.  4  billion.  See  Cingular  Press  Release,  Aug.  5,  2003  (http://  www.  cingular.  com/  about/  latest_  news_/  03_  08_  05). 


 As  the  Sun  Fire  Study  also  points  out  (at  31),  the  CTIA  Filing  additionally  errs  in  not  recognizing  that  Cingular  is  acquiring  twenty  megahertz,  rather  than  ten  megahertz  in  two  cities.  Finally,  we  note  that  the  CTIA 
 Filings  estimate  of  population  living  in  the  areas  included  in  the  transaction  differs  slightly  from  the  official  U.  S.  Census  figures  for  2000,  which  we  use  below  in  determining  the  price  per  MHz-  pop  for  this  transaction. 


 681  Kane  Reece  Study  at  21  and  Exhibit  B. 
 682  Id.  at  26  and  Table  2. 
 683  Id.  at  40  and  Exhibit  F. 
 684  See    288-  292  infra. 
140
 Federal  Communications  Commission  FCC  04-  168 
 141 
 and  stock  prices  in  this  sector  have  fluctuated  significantly  over  the  recent  past.  685  In  addition,  the  calculations  rely  upon  a  mix  of  market  values  (such  as  the  current  equity  prices)  and  book  values  (such  as 
 the  values  placed  on  firm  debt  and  many  tangible  assets).  Combining  market  and  book  figures  in  this  way  might  result  in  overstating  or  understating  the  residually  determined  value  of  spectrum,  depending  on 
 exactly  how  the  various  book  values  differ  from  true  market  values.  Further,  under  the  income  approach,  the  result  is  also  dependent  on  a  large  number  of  assumptions  such  as  forecasts  of  future  streams  of 
 revenues  and  costs,  the  choice  of  the  appropriate  discount  rate  to  employ,  and  the  choice  of  long  term,  or  terminal,  growth  rate  to  employ  in  the  analysis.  The  exact  assumptions  made  can  greatly  influence  the 
 outcome  of  an  analysis,  686  and  yet  it  can  be  difficult  to  determine  the  appropriate  choices  or  justify  choices  made  as  most  reasonable.  Finally,  as  shown  in  a  study  submitted  by  Nextel,  when  the  Kane  Reece  Study 
 approach  is  applied  to  each  wireless  company  individually,  the  result  is  a  wide  range  of  estimates  of  spectrum  license  values.  687  These  estimates  vary  from  a  low  of  $0.41  per  MHz-  pop  for  T-  Mobile  to  a  high 
 of  $3.74  for  Verizon  Wireless.  Nextel  argues  Across  all  companies  in  its  report,  the  Kane  Reece  values  for  spectrum  vary  by  a  factor  of  nearly  nine.  These  wide  variations  in  spectrum  values  further  demonstrate 
 that  Kane  Reeces  methodology  is  unreliable.  688  Because  the  appropriateness  and  impact  of  the  many  detailed  assumptions  is  unclear,  and  because  of  the  great  variation  in  resulting  spectrum  value  estimates 
 across  companies,  we  believe  there  is  considerable  uncertainty  about  the  resulting  average  license  value  estimate  resulting  from  the  EV  based  approach  in  this  instance. 


 289.  More  significantly,  we  believe  Verizon  Wirelesss  application  of  the  EV  method  introduces  an  upward  bias  to  the  valuation  of  the  spectrum  licenses.  This  occurs  in  two  basic  ways.  In 
 part,  EV  itself  is  overstated,  and  this  overstatement  flows  through  to  overstate  license  value.  And  in  part,  too  little  value  is  subtracted  from  EV,  so  that  again  license  value  is  overstated.  One  step  in  the  analysis 
 likely  causes  an  overstatement  in  enterprise  value.  This  occurs  with  the  use  of  a  "control  premium"  adjustment  when  computing  the  EV  of  the  publicly  traded  firms  in  the  group  Verizon  Wireless  analyzes. 
 That  is,  after  determining  the  market  capitalization  of  each  of  these  firms  (essentially  the  stock  price  times  the  number  of  outstanding  shares),  the  Kane  Reece  Study  increases  the  totals  by  thirty  percent.  This  is 
 said  to  produce  the  value  that  results  from  the  ability  to  exert  control  of  the  assets  and  firms  operations.  689  Applying  a  control  premium  is  standard  and  appropriate  when,  for  example,  attempting  to  value  an  entire 
 corporation  in  order  to  determine  a  reasonable  acquisition  price  for  the  entire  firm.  690  The  Sun  Fire  Study  and  the  American  Appraisal  Report  argue  that  it  is  inappropriate  to  employ  a  control  premium  when 
 calculating  the  EV  of  an  entire  industry  or  when  placing  a  value  on  an  asset,  the  spectrum  rights.  691  We  agree  with  Nextel  that  a  control  premium  adjustment  is  inappropriate  when  valuing  assets  such  as  spectrum 


 685  Morgan  Stanley,  Wireless  Operator  Valuation  Table,  Dec,  19,  2003,  at  1. 
 686  See  the  analysis  by  American  Appraisal  Associates  (American  Appraisal  Report),  submitted  in  Nextel 
 ex  parte  filing,  May  6,  2004,  at  6-  7. 
 687  Economic  Analysis  of  the  Kane  Reece  Spectrum  Valuation,  by  Gregory  L.  Rosston,  submitted  in 
 Nextel  ex  parte  filing,  Mar.  18,  2004,  Exhibit  A. 
 688  Id.  at  14. 


 689  See,  for  example,  Frank  C.  Evans,  Evans  and  Evans,  Certified  Public  Accountants,  Valuation  of 
 Companies:  The  Practical  Aspects,  Copyright  1994,  American  Management  Association,  at  100-  105. 
 690  Source  of  Control  Premium  Data  &  What  It  Doesnt  Tell  Us,  Mercer  Capital,  Transaction  Advisor, 
 Vol.  11,  No.  3,  1999,  available  at  http://  www.  bizval.  com/  publications/  articlelibrary/  SourceControlPremiumData.  htm. 


 691  Sun  Fire  Study  at  24,  American  Appraisal  Report  at  8-  9. 
141
 Federal  Communications  Commission  FCC  04-  168 
 142 
 licenses.  The  valuation/  appraisal  literature  associates  the  use  of  control  premiums  with  firm  ownership  values,  not  asset  values.  692 
 290.  Even  if  the  Verizon  Wireless  analysis  has  computed  EV  correctly,  we  believe  it  likely  subtracts  away  too  little  of  this  value,  and  so  attributes  too  much  of  the  measured  EV  to  the  residual,  the 
 spectrum  licenses.  First,  and  most  fundamentally,  it  is  well  recognized  that  the  value  of  ongoing  businesses  may  and  often  does  exceed  the  sum  of  the  values  (or  costs  to  replace)  the  capital  stock.  693  It 
 has  been  estimated  that  market  values  for  U.  S.  industries  in  general  have  significantly  exceeded  the  replacement  costs  of  their  assets  in  recent  years.  694  Second,  other  intangible  elements  may  have  value  and 
 thus  should  also  be  subtracted  from  EV.  The  Kane  Reece  Study  does  not  account  for  the  fact  that  market  values  may  exceed  the  sum  of  the  asset  values,  and  it  makes  an  adjustment  for  only  one  other  intangible 
 asset,  the  value  of  the  current  customer  base.  In  so  doing,  it  does  not  address  factors  such  as  brand  equity  firms  may  possess  or  any  unique  assets  firms  may  have  that  create  value  (such  as  a  uniquely  strong 
 management  team  or  an  important  patent).  At  least  one  study  has  found,  however,  that  in  the  mobile  wireless  sector  intangible  assets  arising  from  advertising  expenditures  and  research  and  development 
 expenditures  are  important  and  statistically  significant  in  explaining  firms  market  values.  695  Thus,  the  EV  approach  as  applied  by  Verizon  Wireless  would  be  expected  to  leave  as  the  residual  not  only  the  value  of 
 the  spectrum  licenses,  but  also  the  value  of  other  important  intangible  contributors  to  firm  value,  as  well  as  the  synergies  created  by  bringing  all  the  assets  together  in  an  ongoing  business.  As  a  result,  this  approach 
 attributes  to  the  spectrum  licenses  value  that  is  due  to  other  critical  factors  and  accordingly  overstates  the  value  of  these  licenses. 


 291.  Turning  to  the  Nextels  $1.25  per  MHz-  pop  estimate,  we  find  this  likely  understates  the  true  value  of  a  ten  megahertz  spectrum  license.  Nextel  argues  that  the  two  comparable  secondary  market 
 transactions  employed  by  CTIA  the  Verizon  Wireless  acquisition  of  fifty  Northcoast  licenses  and  the  Cingular  acquisition  of  NextWave  spectrum  in  thirty-  four  cities  overstate  the  average  value  of  a 
 nationwide  license  because  both  of  those  transactions  principally  involved  large  markets.  696  Therefore,  Nextel  derives  its  figure  using  a  tiered  pricing  model  that  relies  on  three  comparable  sales  benchmarks: 
 the  Verizon  Wireless/  Northcoast  acquisition  and  two  other  single-  license  transactions  (Pittsburgh,  PA  and  Lebanon,  NH).  This  model,  in  effect  and  in  intent,  places  a  lower  price  per  MHz-  pop  on  spectrum  in 
 smaller  cities.  We  find,  first,  however,  as  argued  by  Verizon  Wireless,  that  this  approach  places  undue  reliance  on  the  two  single-  license  sales,  and  that  this  is  particularly  worrisome  when  those  sales  may  not 
 have  been  true  arms-  length  transactions.  697 


 692  See  Pratt,  Reilly,  and  Schweihs  at  25-  26,  48-  49,  and  354-  361;  Goodwill  Hunting:  Part  II,  Mercer 
 Capital,  Transaction  Advisor,  Vol.  4.  No.  3,  2001,  available  at  http://  www.  bizval.  com/  publications/  articlelibrary/  GoodwillHuntingPart2.  htm. 


 693  See,  for  example,  James  Tobin,  Money  Credit  and  Capital,  McGraw  Hill  (1998)  at  147-  155.  The  ratio 
 of  the  market  value  of  the  firm  to  the  replacement  costs  of  its  assets  is  known  as  Tobins  q. 
 694  That  is,  Tobins  q  has  been  estimated  as  significantly  greater  than  one.  See  A  New  Bull,  or  a  Bear 
 Market  Rally?  by  David  Edwards,  in  TheSreet.  com,  June  3,  2003,  available  at:  http:/  thestreet.  com/  funds/  managerstoolbox/  10090875.  html. 


 695  Measuring  and  Valuing  Intangible  Capital  in  the  Wireless  Communications  Industry,  by  Mark  Klock 
 and  Pam  Megna,  The  Quarterly  Review  of  Economics  and  Finance,  40  (200)  519-  532. 
 696  Sun  Fire  Study  at  22,  26-  27,  32-  33. 


 697  Kane  Reece  Study  at  18-  19. 
142
 Federal  Communications  Commission  FCC  04-  168 
 144 
 of  about  $1.36  per  MHz-  pop.  701  While  this  is  somewhat  lower  than  our  other  two  comparables,  we  believe  it  is  consistent  with  them  given  the  different  mix  of  markets  included  in  this  transaction:  a  greater 
 preponderance  of  small  and  mid-  sized  markets,  and  a  lesser  preponderance  of  very  large  metro  areas.  In  general,  licenses  for  large  metropolitan  areas  are  more  highly  valued  per  MHz-  pop  than  licenses  for  the 
 smaller  cities  and  rural  areas. 
 296.  Secondary  market  transactions  that  involve  only  small  numbers  of  licenses  are  more  likely  to  reflect  values  that  are  specific  to  local  conditions,  and  therefore  may  be  inappropriate  models  for 


 valuation  of  nationwide  spectrum.  Notwithstanding  the  limited  data  provided  by  such  transactions,  two  other  recently  announced  agreements  also  provide  some  relevant  evidence  of  current  value.  First,  in  late 
 May  of  this  year,  as  part  of  a  larger  transaction  between  the  two  firms,  it  was  announced  that  T-  Mobile  USA  will  acquire  from  Cingular  Wireless  ten  megahertz  of  PCS  spectrum  in  three  BTAs,  San  Francisco-Oakland- 
 San  Jose,  Sacramento,  and  Las  Vegas.  The  agreed  price  is  $180  million,  702  which  corresponds  to  approximately  $1.67  per  MHz-  pop.  Second,  on  July  8  NextWave  Telecom,  Inc.  sold  three  PCS  licenses 
 for  a  total  of  $973.5  million.  703  A  ten  megahertz  license  in  the  New  York  BTA  was  purchased  by  Verizon  Wireless  for  $4.74  per  MHz-  pop.  And  ten  megahertz  licenses  in  two  Florida  BTAs  were  purchased  by 
 MetroPCS:  Sarasota-  Bradenton  for  $1.37  per  MHz-  pop  and  Tampa-  St.  Petersburg-  Clearwater  for  $1.33  per  MHz-  pop.  While  not  yet  consummated,  both  of  these  transactions  appear  to  be  firm,  arms-  length 
 transactions  between  willing  buyers  and  sellers. 
 297.  We  view  all  these  more  recently  announced  transactions  as  confirming  our  two  primary  comparables,  which  yield  an  average  value  of  $1.62  per  MHz-  pop.  However,  we  believe  that  this  value 


 may  understate  the  current  FMV  of  a  nationwide  1.9  GHz  spectrum  because  a  nationwide  license  or  a  near-  nationwide  license  that  encompasses  the  great  majority  of  areas  where  mobile  telephony  service 
 coverage  would  be  desired  may  command  a  small  value  premium.  We  do  not  expect  such  a  premium  to  be  large,  because  today  many  likely  buyers  of  spectrum  already  hold  large  spectrum  footprints,  and  may  be 
 most  interested  in  filling  holes  in  those  footprints  or  adding  to  capacity  in  local  areas.  Nonetheless,  some  firms  would  likely  still  see  added  value  in  having  a  nationwide  license  for  a  single  set  of  frequencies,  for 
 example  because  such  a  license  could  enable  less  costly  equipment  development  and  deployment.  Accordingly,  we  make  a  five  percent  upward  adjustment  in  the  average  price  of  our  primary  comparable 
 transactions.  Our  final  point  estimate  of  the  value  of  the  1.9  GHz  spectrum  is  $1.70  per  MHz-  pop,  or  approximately  $4.86  billion.  704 


 b.  Offsets 
 298.  Having  determined  the  value  of  the  1.9  GHz  spectrum,  we  must  balance  it  against  the  costs  that  will  be  incurred  by  Nextel  pursuant  to  this  Report  and  Order.  We  conclude  that  the  following 


 categories  of  costs  to  Nextel  merit  compensation,  and  therefore  should  be  offset  against  the  above-determined  value  of  the  1.9  GHz  spectrum:  (1)  Nextels  costs  to  relocate  incumbents  within  the  800  MHz 


 701  Sale  of  Wireless  Assets  Positive  for  both  VXW  and  Q,  Analyst  Comment,  Goldman  Sachs,  July  2, 
 2004. 
 702  T-  Mobile  USA  to  End  Network  Venture  with  Cingular  and  Acquire  California/  Nevada  Network  and 
 Spectrum,  Press  Release,  May  25,  2004. 
 703  NextWave  Auction  Attracts  Winning  Bids  Totaling  $973.5  Million,  News  Release,  NextWave 
 Telecom,  July  8,  2004. 
 704  For  the  calculation  of  the  total  dollar  amount,  we  use  the  total  year  2000  population  for  the  United 
 States  including  possessions,  or  285.62  million. 
144
 Federal  Communications  Commission  FCC  04-  168 
 145 
 band,  including  payments  Nextel  has  made  for  the  services  of  the  Transition  Administrator;  (2)  Nextels  own  relocation  costs;  (3)  Nextels  costs  to  clear  the  1.9  GHz  spectrum;  and  (4)  the  net  value  of  the  800 
 MHz  spectrum  that  Nextel  will  relinquish  for  public  safety  use.  705  We  also  assign  de  minimis  value  to  the  700  MHz  Guard  Band  spectrum  that  Nextel  will  relinquish. 


 (i)  Relocation  and  Band-  Clearing  Costs 
 299.  Cost  to  Relocate  800  MHz  Incumbents.  In  the  Consensus  Parties  proposal,  Nextel  has  estimated  the  cost  of  relocating  public  safety,  CII,  and  other  800  MHz  incumbents  at  $850  million.  706 


 Nextel  asserts  that  these  costs  should  be  credited  to  Nextel  because  they  are  integral  to  accomplishing  band  reconfiguration  without  imposing  a  prohibitive  cost  burden  on  public  safety.  707  Verizon  Wireless  argues 
 that  Nextel  should  not  receive  credit  for  the  cost  of  relocating  other  800  MHz  licensees  on  the  grounds  that  these  are  necessary  costs  of  doing  business  to  remedy  interference  that  has  been  caused  by  Nextel 
 itself.  708  Verizon  also  asserts  that  Nextel  has  not  provided  documentation  to  support  its  $850  million  relocation  cost  estimate.  709 


 300.  We  reject  Verizons  argument  that  Nextel  should  not  receive  credit  for  these  relocation  costs.  First,  we  disagree  with  Verizons  premise  that  Nextel  is  legally  responsible  as  the  sole  cause  of 
 the  interference  problem  being  remedied,  and  therefore  could  be  compelled  to  pay  these  costs  without  compensation.  The  record  in  this  proceeding  has  documented  that  while  Nextel  has  been  implicated  in 
 great  number  of  interference  incidents,  the  interference  problem  has  not  been  not  caused  by  any  single  party  Nextel,  cellular,  or  public  safety  but  rather  has  been  caused  collectively  by  the  proximity  of  all  of 
 these  parties  to  one  another  in  the  800  MHz  band,  even  though  all  parties  are  operating  in  compliance  with  Commission  rules.  Moreover,  Nextel  is  not  only  bearing  the  entire  cost  of  solving  the  problem,  but  is 
 supporting  the  optimal  solution  to  the  problem  band  reconfiguration  even  though  this  is  considerably  more  costly  to  Nextel  than  other,  less  optimal  solutions,  such  as  exclusive  reliance  on  Enhanced  Best 
 Practices.  Based  on  these  considerations,  crediting  Nextel  for  the  cost  of  relocating  other  incumbents  is  consistent  with  equitable  principles  and  furthers  the  public  interest  goals  of  this  proceeding  in  achieving  a 
 comprehensive  long-  term  solution  to  the  interference  problem.  Finally,  we  do  not  require  documentation  of  Nextels  estimate,  as  Verizon  contends,  because  the  offset  will  be  calculated  based  on  actual  relocation 
 costs,  not  estimated  costs,  as  verified  by  the  Transition  Administrator. 
 301.  Nextels  Own  800  MHz  Relocation  Costs.  Nextel  identifies  two  categories  of  costs  associated  with  relocation  of  its  own  operations  in  the  reconfigured  800  MHz  band.  First,  to  protect  non-cellular 


 systems  below  816/  861  MHz  from  OOBE,  Nextel  will  install  improved  filters  for  all  of  its  800  MHz  base  station  transmitters  to  achieve  a  sharper  OOBE  roll-  off.  710  Nextel  previously  projected  these 
 filter  costs  at  $150  million,  but  in  conjunction  with  the  revised  band  plan  under  which  Nextel  will  relinquish  an  additional  two  megahertz  of  spectrum  at  816-  817/  861-  862  MHz,  Nextel  has  revised  its 


 705  We  provide  these  offsets  pursuant  to  our  authority  under  Section  4(  i)  of  the  Act.  47  U.  S.  C.    154  (i). 
 See    75-  76  supra. 
 706  See  Supplemental  Comments  of  the  Consensus  Parties  at  5-  6. 


 707  See  Comments  of  Nextel  to  Supplemental  Comments  of  the  Consensus  Parties  at  15-  17. 
 708  Verizon  June  30  ex  parte  at  3-  4.  See  also  Verizon  June  9  ex  parte  at  6. 
 709  Id.  at  4. 
 710  Nextel  July  27  ex  parte  at  1-  2.  See  n.  401  supra. 
145
 Federal  Communications  Commission  FCC  04-  168 
 146 
 projected  filter  costs  to  $407  million.  711  Second,  to  implement  band  reconfiguration,  Nextel  will  need  to  relocate  its  own  operations  to  new  channels.  In  some  instances,  this  will  require  Nextel  equipment  to  be 
 retuned  more  than  once  in  order  to  provide  a  seamless  transition  for  other  licensees.  712  Nextel  estimates  the  cost  at  $400  million.  Nextel  seeks  credit  for  both  of  these  cost  categories,  while  Verizon  contends  that 
 Nextel  should  be  required  to  bear  these  costs  without  credit  or  compensation.  713 
 302.  Verizons  argument  that  Nextel  should  not  receive  credit  for  its  own  relocation  costs  also  fails.  The  costs  that  Nextel  is  incurring  to  relocate  its  own  system  are  just  as  integral  to  the  optimized 


 solution  of  band  reconfiguration  as  are  the  costs  of  relocating  other  800  MHz  licensees.  The  installation  of  new  filters  in  Nextels  system  will  provide  needed  interference  protection  to  public  safety,  CII,  and  other 
 800  MHz  licensees  on  the  additional  spectrum  that  is  being  provided  to  them  by  Nextel  under  the  new  band  plan.  With  respect  to  retuning  costs,  Nextel  is  paying  for  multiple  relocations  of  its  own  operations 
 to  ensure  that  other  incumbents  can  operate  seamlessly  while  band  reconfiguration  is  taking  place.  Thus,  giving  credit  to  Nextel  for  these  costs  is  not  tantamount  to  paying  a  polluter  to  stop  polluting,  as  Verizon 
 contends.  714  Instead,  it  is  recognizing  that  Nextel  alone  among  the  parties  to  this  proceeding  is  paying  to  support  a  comprehensive  solution  to  a  collective  pollution  problem  even  though  this  will  require  more 
 expensive  changes  to  its  own  system  than  would  otherwise  be  required.  We  conclude  that  Nextel  should  be  entitled  to  credit  for  these  costs,  as  verified  by  the  Transition  Administrator.  These  costs  will  include 
 payments  Nextel  has  made  for  the  services  of  the  Transition  Administrator. 
 303.  Cost  of  Clearing  1.9  GHz  Spectrum.  As  discussed  in    239-  263,  supra,  as  a  condition  of  receiving  1.9  GHz  spectrum  rights,  Nextel  is  required  (1)  to  pay  UTAM  for  the  cost  of  clearing  the  1910- 


 1915  MHz  band  and  (2)  to  clear  BAS  from  the  1990-  2025  MHz  band  within  thirty  months.  Nextel  seeks  credit  for  these  costs  as  an  offset  against  the  value  of  the  1.9  GHz  spectrum.  715  Verizon  objects  to  this 
 offset  on  the  same  grounds  as  the  800  MHz  relocation  cost  offsets  discussed  above.  In  addition,  Verizon  argues  that  Nextel  should  not  receive  credit  for  clearing  BAS  from  the  entire  1990-  2035  MHz  band  when 
 clearing  of  the  1990-  1995  MHz  band  is  all  that  is  required  for  Nextels  purposes.  716 
 304.  We  conclude  that  Nextel  should  receive  credit  for  all  BAS  relocation  costs,  less  any  MSS-reimbursed  expenses  incurred  prior  to  the  end  of  the  thirty-  six  month  reconfiguration  period,  when  the 


 711  Nextel  June  21,  July  27  ex  partes.  Nextel  states  as  a  result  of  giving  up  the  additional  2  megahertz,  it 
 will  require  more  expensive  filters  so  that  it  can  operate  closer  to  the  band  edge  while  still  protecting  the  relinquished  spectrum  from  OOBE.  In  addition,  Nextel  will  need  to  install  filters  at  a  greater  number  of  base 


 station  sites  than  under  the  previous  plan.  Nextel  July  27  ex  parte  at  2. 
 712  Nextel  July  27  ex  parte  at  2.  Although  Nextel  will  ultimately  relocate  from  the  current  General 
 Category  and  interleaved  channels  to  the  old  NPSPAC  block,  it  will  not  do  so  directly.  Instead,  it  will  need  to  relocate  many  of  its  operations  to  temporary  channels  in  the  800  MHz  band  or  to  spectrum  in  the  900  MHz  band 


 while  it  is  clearing  the  General  Category  block  and  moving  non-  Nextel  General  Category  licensees  to  channels  it  has  vacated  in  the  interleaved  bands.  Only  after  the  new  NPSPAC  block  is  cleared  of  incumbents  and  NPSPAC 
 operations  can  be  relocated  there  will  Nextel  be  able  to  move  its  operations  back  from  the  900  MHz  band  to  the  old  NPSPAC  block. 


 713  Nextel  June  21  ex  parte  at  2;  Verizon  June  30  ex  parte  at  3-  4. 
 714  Verizon  June  9  ex  parte  at  6. 
 715  MSTV/  NAB/  Nextel  May  3,  2004  Ex  Parte  at  4;  Nextel  June  21  ex  parte  at  2. 
 716  Verizon  June  9  ex  parte  at  6. 
146
 Federal  Communications  Commission  FCC  04-  168 
 147 
 offsets  will  be  calculated.  717  First,  the  value  we  have  determined  for  the  1.9  GHz  spectrum  is  based  on  comparable  transactions  that  involved  unencumbered  spectrum.  Because  the  1.9  GHz  is  encumbered, 
 however,  it  is  appropriate  to  consider  the  costs  of  clearing  the  band  as  an  offset  against  this  value.  Second,  we  disagree  with  Verizons  contention  that  Nextel  should  not  receive  credit  for  the  full  cost  of  clearing 
 BAS  from  the  1990-  2025  MHz  band.  Although  Nextel  will  only  have  spectrum  rights  in  the  1990-  1995  MHz  portion  of  this  band,  as  discussed  in    251-  263,  supra,  we  are  requiring  Nextel  to  clear  the  entire 
 band  as  a  condition  on  those  spectrum  rights.  We  impose  this  requirement  because  it  promotes  responsible  use  by  Nextel  of  the  1.9  GHz  spectrum  we  are  granting  as  part  of  our  solution  to  the  public  safety 
 interference  problem,  and  because  it  provides  a  rapid  and  efficient  band-  clearing  solution  at  1.9  GHz  that  benefits  all  parties  Nextel,  BAS,  MSS,  other  prospective  users  of  the  band  above  1995  MHz,  and  the 
 public.  Having  required  Nextel  to  incur  these  costs  as  an  integral  component  of  this  order,  we  conclude  that  it  is  reasonable  to  allow  Nextel  to  obtain  credit  for  these  same  costs.  Moreover,  there  is  no  risk  in  our 
 decision  of  double  recovery  by  Nextel  because  it  cannot  claim  credit  for  any  BAS  relocation  expenses  for  which  it  seeks  or  obtains  reimbursement  from  MSS  licensees. 


 305.  We  recognize  that  giving  Nextel  credit  for  the  costs  it  incurs  in  clearing  the  1.9  GHz  band,  differs  from  the  Commissions  usual  practice  of  auctioning  spectrum  as  is,  i.  e.,  a  typical  auction  winner 
 acquires  spectrum  rights  subject  to  encumbrances  such  as  incumbent  users.  We  decline  to  take  the  as  is  approach  in  the  instant  situation,  however,  because  the  comparable  transactions  used  above  to  determine 
 the  value  of  the  1.9  GHz  band  involved  unencumbered  spectrum.  Thus,  we  believe  it  more  accurate  to  grant  Nextel  credit  for  the  verifiable  costs  of  clearing  the  1.9  GHz  band  instead  of  incorporating  an 
 estimate  of  these  costs  into  our  spectrum  valuations. 
 306.  Combined  Relocation  and  Band-  Clearing  Costs.  Nextel  has  estimated  the  cost  of  relocating  800  MHz  incumbents  at  $850  million,  its  own  relocation  costs  (retuning  and  additional  filters) 


 at  $807  million,  and  the  cost  of  clearing  or  relocating  1.9  GHz  incumbents  (UTAM  and  BAS)  at  $527  million.  718  If  these  estimates  prove  to  be  accurate,  Nextel  will  be  credited  with  combined  offsets  for  these 
 costs  totaling  $2.184  billion  against  the  value  of  the  1.9  GHz  spectrum.  However,  it  is  unnecessary  to  rely  on  Nextels  estimate,  because  the  final  offsets  will  be  based  on  actual  relocation  and  band-  clearing  costs 
 incurred  by  Nextel,  as  verified  by  the  Transition  Administrator  at  the  conclusion  of  the  thirty-  six  month  transition  period  for  800  MHz  band  reconfiguration.  Thus,  if  the  combined  relocation  and  band-  clearing 
 costs  prove  to  be  higher  than  Nextels  estimate,  Nextel  will  receive  a  correspondingly  larger  offset;  similarly,  if  its  costs  are  lower  than  this  estimate,  the  offset  will  be  correspondingly  lower. 


 (ii)  800  MHz  Spectrum  Relinquished  to  Public  Safety  and  Other  800  MHz  Incumbents 
 307.  As  noted  above,  Nextel  is  relinquishing  all  of  its  spectrum  in  the  800  MHz  General  Category  and  interleaved  bands,  and  two  megahertz  of  spectrum  at  816-  817/  861-  862  MHz  from  the  Upper 
 200  SMR  channel  block,  for  relocation  and  use  by  public  safety  and  other  non-  ESMR  incumbents.  At  the  same  time,  once  band  reconfiguration  and  relocation  are  complete,  Nextel  will  hold  the  rights  to  the  six 
 megahertz  of  contiguous  spectrum  in  the  current  NPSPAC  band  (821-  824/  866-  869  MHz).  Nextel  states  that  through  its  relinquishment  of  800  MHz  General  Category  and  interleaved  spectrum,  it  is  giving  up  an 
 average  of  8.5  megahertz  of  bandwidth,  resulting  in  an  average  net  gain  of  2.5  megahertz  to  public 


 717  In  the  event  that  Nextel  were  to  incur  any  BAS-  related  relocation  expenses  after  the  thirty-  six  month 
 reconfiguration  period,  they  are  outside  the  scope  of  this  proceeding  and  Nextel  may  not  claim  credit  for  them,  under  the  band  clearing  expense  offset  process  we  have  established  herein. 


 718  Nextel  June  21  ex  parte  at  2. 
147
 Federal  Communications  Commission  FCC  04-  168 
 148 
 safety.  719  Combined  with  the  two  megahertz  of  spectrum  that  Nextel  is  giving  up  from  its  spectrum  holdings  in  the  Upper  200  block,  the  average  net  amount  of  spectrum  being  relinquished  by  Nextel  is  4.5 
 megahertz.  720 
 308.  Nextels  relinquishment  of  these  spectrum  rights  to  public  safety  accomplishes  an  important  public  interest  objective  of  this  proceeding  by  increasing  the  amount  of  800  MHz  spectrum 


 available  for  public  safety  use.  Parties  to  this  proceeding  differ,  however,  on  whether  it  also  imposes  a  cost  on  Nextel,  because  the  General  Category  and  interleaved  spectrum  that  Nextel  is  relinquishing  is  non-contiguous, 
 while  the  NPSPAC  band  is  contiguous.  Verizon  contends  that  Nextels  gain  of  rights  to  contiguous  800  MHz  spectrum  exceeds  the  value  of  the  rights  to  non-  contiguous  800  MHz  spectrum  being 
 relinquished  by  Nextel.  721  Thus,  Verizon  contends  that  Nextels  exchange  of  spectrum  rights  in  the  800  MHz  band  constitutes  a  windfall  gain,  notwithstanding  the  net  loss  of  bandwidth.  Nextel,  on  the  other 
 hand,  contends  that  there  is  no  difference  in  the  per-  megahertz  value  of  the  non-  contiguous  spectrum  rights  it  is  relinquishing  and  the  contiguous  spectrum  rights  it  is  gaining,  so  that  the  net  loss  of  bandwidth 
 imposes  a  substantial  net  cost  on  Nextel.  722 
 309.  As  discussed  more  fully  below,  we  do  not  agree  with  Verizons  contention  that  Nextel  will  realize  a  windfall  gain  from  the  net  loss  of  spectrum  rights  at  800  MHz.  While  we  conclude  that  Nextel 


 will  realize  some  technical  efficiency  benefit  from  being  able  to  operate  its  network  on  contiguous  800  MHz  spectrum,  that  benefit  is  relatively  small  and  does  not  translate  into  a  windfall  for  Nextel.  We  further 
 conclude  that  the  gain  that  Nextel  will  realize  from  the  exchange  of  non-  contiguous  for  contiguous  spectrum  rights  at  800  MHz  is  more  than  offset  by  the  total  value  of  the  800  MHz  spectrum  rights  being 
 relinquished  by  Nextel,  and  the  fact  that  Nextel  will  be  unable  to  fully  utilize  the  additional  contiguous  800  MHz  spectrum  until  the  end  of  the  transition.  On  balance,  the  result  is  a  net  cost  to  Nextel  though  not  as 
 great  a  cost  as  Nextel  contends  for  which  compensation  is  appropriate. 
 310.  Verizon  argues  that  the  exchange  of  spectrum  at  800  MHz  is  a  windfall  for  Nextel  based  on  the  disparate  valuations  of  contiguous  and  non-  contiguous  spectrum  rights  presented  in  the  Kane  Reece 


 report.  First,  the  Kane  Reece  report  uses  the  same  enterprise  valuation  method  that  Kane-  Reece  applied  to  the  1.9  GHz  spectrum  to  value  the  rights  to  the  contiguous  six-  megahertz  NPSPAC  band  at  $1.82/  MHz-pop, 
 or  about  $3.2  billion.  Then,  using  an  engineering  analysis  that  compares  non-  contiguous  spectrum  used  for  mobile  voice  and  data  against  contiguous  spectrum  in  a  CDMA  1xRTT  use,  the  Kane-  Reece 
 report  values  the  non-  contiguous  spectrum  rights  given  up  by  Nextel  at  $.  45/  MHz-  pop,  or  about  $.  9  billion  approximately  twenty-  five  percent  of  the  value  Kane-  Reece  claims  for  rights  to  contiguous 
 spectrum.  723  Combining  these  two  figures,  the  Kane-  Reece  report  asserts  that  Nextel  will  realize  a  $2.3  billion  net  benefit  from  the  exchange  of  spectrum  rights  at  800  MHz.  724 


 311.  We  believe  Verizons  analysis  is  unpersuasive  in  several  respects.  First,  Verizon  asserts  that  Nextel  will  derive  significantly  increased  value  from  exchanging  contiguous  for  non-  contiguous 


 719  See  Nextel  Reply  Comments  at  7.  See  also  Consensus  Parties  Reply  Comments  at  18. 
 720  Nextel  June  9  Ex  Parte  at  2. 
 721  See  Kane  Reece  Study  at  Table  7;  Kane  Reece  Study  II  at  2. 
 722  See  Sun  Fire  Study  at  27-  28. 
 723  See  Kane  Reece  Study  at  43-  52. 
 724  Id.  at  42,  Table  7. 
148
 Federal  Communications  Commission  FCC  04-  168 
 149 
 spectrum  at  800  MHz  because  contiguous  spectrum  affords  flexibility  to  use  wideband  technologies,  such  as  CDMA,  that  cannot  be  deployed  on  non-  contiguous  spectrum.  In  Nextels  case,  however,  such 
 flexibility  is  more  theoretical  than  real.  The  record  indicates  that,  as  a  practical  matter,  Nextel  is  unlikely  to  abandon  its  iDEN  network  and  switch  to  wideband  technology  as  a  result  of  this  exchange  of 
 contiguous  for  non-  contiguous  spectrum.  725  Given  Nextels  existing  investment  in  iDEN  and  its  large  customer  base,  it  is  more  cost-  effective  for  Nextel  to  extend  its  existing  network  into  the  additional  six 
 megahertz  than  to  switch  to  an  alternative  technology  such  as  CDMA,  which  would  be  very  costly  and  time-  consuming  for  Nextel  and  would  impose  significant  burdens  on  its  customers.  In  addition,  to  ensure 
 continued  service  to  its  twelve  million  iDEN  customers,  Nextel  will  need  to  use  the  six  megahertz  for  added  spectrum  capacity  in  its  system  to  compensate  for  the  lost  capacity  associated  with  spectrum  rights 
 being  relinquished  to  public  safety  pursuant  to  rebanding.  Thus,  while  we  agree  with  Verizon  that  under  most  circumstances,  contiguous  spectrum  offers  more  technical  flexibility  and  is  more  highly  valued  by 
 the  marketplace,  we  believe  the  analysis  here  must  focus  on  the  practical  effect  of  this  specific  exchange  of  spectrum  rights  on  Nextels  existing  network  and  service.  In  this  context,  the  highest-  value  use  that  Nextel 
 is  likely  to  derive  from  the  six  megahertz  it  will  acquire  is  to  use  it  for  iDEN  expansion.  This  would  not  create  a  significant  increase  in  value  for  Nextel  because  iDEN  does  not  require  contiguous  spectrum. 


 312.  For  similar  reasons,  we  find  that  Verizons  analysis  understates  the  value  of  the  non-contiguous  spectrum  rights  being  given  up  by  Nextel.  While  the  market  value  of  non-  contiguous  spectrum 
 is  generally  lower  than  that  of  contiguous  spectrum,  Verizons  analysis  does  not  sufficiently  account  for  Nextels  highly  effective  use  of  iDEN  technology  to  maximize  the  capacity  that  it  derives  from  non-contiguous 
 spectrum.  Using  iDEN,  Nextel  can  and  does  provide  interconnected  mobile  voice  and  data  at  current-  generation  speeds  on  the  spectrum  it  currently  uses.  726  In  fact,  Nextel  has  been  able  to  achieve 
 capacity  and  throughput  levels  that  are  superior  to  many  providers  that  operate  on  contiguous  spectrum.  Therefore,  from  a  technology  perspective,  Nextel  does  not  gain  significant  new  capability  to  provide  these 
 services  as  a  result  of  converting  from  non-  contiguous  spectrum  to  contiguous  spectrum  in  the  800  MHz  band.  727 


 313.  While  we  conclude  that  Verizon  has  not  taken  Nextels  efficient  use  of  non-  contiguous  spectrum  into  account,  we  do  not  agree  with  Nextels  contention  that  its  use  of  iDEN  means  that  non-contiguous 
 and  contiguous  spectrum  rights  should  be  valued  equally.  Even  in  an  iDEN  configuration,  Nextel  will  realize  some  increase  in  technical  efficiency  as  a  result  of  using  contiguous  spectrum.  For 
 example,  moving  to  contiguous  spectrum  will  give  Nextel  somewhat  more  flexibility  to  optimize  frequency  reuse  in  its  iDEN  network,  and  Nextel  will  have  fewer  constraints  on  spectrum  use  because  once 
 relocation  is  complete,  the  contiguous  band  will  be  cleared  of  non-  Nextel  incumbents.  Because  Nextel  has  not  taken  these  variables  into  account  in  its  valuation  of  the  800  MHz  spectrum  it  is  relinquishing,  we  have 
 conducted  our  own  analysis  to  determine  the  appropriate  offset  for  contiguous  and  non-  contiguous  spectrum. 


 314.  Contiguous  Spectrum  at  800  MHz.  We  start  by  estimating  the  value  to  Nextel  of  the  spectrum  rights  to  the  six  megahertz  of  contiguous  spectrum  currently  occupied  by  NPSPAC.  We  believe 
 that  Verizons  proposed  market  valuation  of  the  six  megahertz  at  $1.82  MHz-  pop,  for  a  total  of  $3.2  billion,  is  overstated.  This  valuation  figure  is  derived  using  the  same  enterprise  valuation  method  that 


 725  See  Rosston  Study  at  7-  9. 
 726  See  Sun  Fire  Study  at  17. 
 727  See  Letter  dated  Dec.  19,  2003  from  Regina  Keeney,  Esq.  Counsel  for  Nextel  to  Michael  J.  Wilhelm, 
 Esq.,  WTB  at  16.  See  also  Nextel  Communications,  Inc.  Proposed  Spectrum  Swap:  Working  Through  the  Noise,  UBS  Investment  Research  Report  dated  April  15,  2004  at  6  (April  15  UBS  Report). 
149
 Federal  Communications  Commission  FCC  04-  168 
 150 
 Verizon  uses  to  value  the  1.9  GHz  spectrum.  As  noted  above,  we  find  that  this  method  results  in  an  inflated  value  for  the  1.9  GHz  spectrum,  and  accordingly,  it  overstates  the  value  of  800  MHz  spectrum  to 
 at  least  an  equal  degree. 
 315.  We  believe  that  our  above-  determined  $1.70/  MHz-  pop  valuation  of  the  1.9  GHz  spectrum  represents  a  more  appropriate  baseline  for  determining  the  value  of  the  contiguous  800  MHz  spectrum 


 being  acquired  by  Nextel.  Although  Nextel  asserts  a  higher  value  for  800  MHz  spectrum  (both  contiguous  and  non-  contiguous)  based  on  propagation  characteristics,  based  on  our  analysis  of  comparable  sales 
 discussed  above,  we  have  not  found  that  this  factor  adds  appreciable  value  to  800  MHz  spectrum  in  comparison  to  1.9  GHz  spectrum.  Moreover,  to  the  extent  that  it  may  add  value,  there  are  other  factors 
 that  tend  to  cancel  out  any  such  difference  as  applied  to  the  800  MHz  spectrum  that  Nextel  will  acquire.  First,  we  assume  that  the  market  value  of  six  megahertz  of  spectrum  would  not  be  proportional  on  a  per-megahertz 
 basis  to  the  market  value  of  ten  megahertz  of  spectrum.  Where  we  have  established  new  bands  for  advanced  wireless  services,  we  have  never  established  licensing  blocks  smaller  than  ten  megahertz.  In 
 addition,  a  six  megahertz  block  provides  no  more  capacity  than  a  five  megahertz  block  for  the  typical  CDMA  configuration  based  on  1.25  MHz  channels,  i.  e.,  only  four  channels  can  be  accommodated  in  either 
 case. 
 316.  We  also  find  that  an  offset  should  be  made  against  the  six  megahertz  of  contiguous  800  MHz  spectrum  that  Nextel  is  gaining  because  it  is  also  relinquishing  two  megahertz  of  contiguous 


 spectrum  at  816-  817  MHz/  861-  862  MHz.  This  reduces  Nextels  net  gain  of  contiguous  spectrum  from  six  megahertz  to  four  megahertz.  We  also  make  an  adjustment  for  operational  restrictions  that  Nextel  is 
 accepting  under  this  order  at  the  new  lower  edge  of  its  contiguous  800  MHz  ESMR  spectrum.  As  described  by  Nextel,  these  restrictions  will  effectively  limit  Nextels  use  of  half  a  megahertz  of  its  ESMR 
 spectrum  after  rebanding.  728  Based  on  all  of  the  above  factors,  we  conclude  that  Nextel  should  be  credited  with  the  net  gain  of  3.5  megahertz  of  contiguous  800  MHz  spectrum  as  opposed  to  six  megahertz. 
 Applying  our  baseline  of  $1.70/  MHz-  pop  to  this  amount  of  spectrum  on  a  nationwide  basis  yields  an  approximate  value  of  $1.739  billion.  729 


 317.  Non-  Contiguous  Spectrum  at  800  MHz.  In  addition  to  determining  the  value  of  contiguous  spectrum  at  800  MHz,  we  also  must  consider  the  value  of  the  non-  contiguous  800  MHz 
 spectrum  rights  being  relinquished  by  Nextel  in  the  General  Category  and  interleaved  spectrum  bands.  Again,  we  are  presented  with  a  range  of  values  by  the  parties.  Verizon  values  Nextels  non-  contiguous 
 spectrum  rights  at  $.  45/  MHz-  pop  one  quarter  the  value  it  ascribes  to  contiguous  spectrum  which  we  regard  as  too  low.  730  Nextel,  on  the  other  hand,  argues  for  a  valuation  of  $2.02/  MHz-  pop,  which  we  regard 
 as  thinly  supported,  since  it  is  based  on  a  single  secondary  market  transaction.  731  As  in  our  discussion  of 
 728  Nextel  June  4,  2004  Ex  Parte  at  3.  This  record  statement  by  Nextel,  as  with  all  such  statements  in  the 
 record,  is  governed  by  Section  1.17  of  the  Commissions  rules  governing  accuracy  in  written  statements  to  the  Commission.  See  47  C.  F.  R.    1.17. 


 729  We  make  a  small  downward  adjustment  to  the  two  megahertz  offset  because  while  Nextel  is  giving  up 
 all  of  its  spectrum  holdings  at  816-  817/  861-  862  MHz,  our  records  indicate  that  there  are  seventeen  EA  licenses  in  this  band  licensed  to  parties  other  than  Nextel,  which  these  licensees  are  not  required  to  relinquish.  Accordingly,  in 


 calculating  the  MHz-  pop  (11.56  million  pops)  value  of  the  two  megahertz  of  spectrum  given  up  by  Nextel,  we  have  deducted  the  population  of  those  non-  Nextel  EAs  from  the  calculation. 


 730  Kane  Reece  Report  at  Table  7. 
 731  See  Sun  Fire  Study.  The  Sun  Fire  valuation  is  based  on  Nextel's  acquisition  of  Chadmoore 
 Communications.  Although  this  transaction  is  a  useful  data  point,  we  do  not  believe  it  provides  sufficient  support  in  and  of  itself  for  the  valuation  proposed  in  the  report. 
150
 Federal  Communications  Commission  FCC  04-  168 
 151 
 contiguous  spectrum  above,  we  focus  our  analysis  of  non-  contiguous  spectrum  on  its  specific  use  in  Nextels  existing  network  and  service,  which  we  consider  more  relevant  than  its  hypothetical  market  value 
 to  other  parties.  In  particular,  we  focus  on  the  differences  in  technical  efficiency  that  affect  iDEN  operation  on  contiguous  versus  non-  contiguous  spectrum.  While  these  differences  are  difficult  to  quantify 
 with  precision,  we  have  identified  variables  that  we  believe  provide  a  reasonable  measure  of  the  increase  in  efficiency  that  Nextel  will  realize  as  a  result  of  obtaining  rights  to  contiguous  spectrum,  and  which  can  be 
 used  to  provide  an  appropriate  discount  on  the  value  of  the  non-  contiguous  spectrum  rights  it  is  relinquishing.  We  set  forth  this  analysis  below. 


 318.  Interleaved  Channels.  In  the  809.75-  816/  854.75-  861  MHz  band,  80  SMR  channel  pairs  totaling  4  megahertz  of  bandwidth  are  interleaved  with  public  safety  and  B/  ILT  channels.  The  interleaved 
 nature  of  the  band  plan  puts  twenty  of  these  channels  at  band  edges  adjacent  to  non-  SMR  spectrum,  including  public  safety  spectrum.  Using  the  OOBE  limits  applicable  to  EA  licenses,  732  we  assume  that  if 
 Nextel  is  operating  on  one  of  its  band-  edge  channels  in  the  vicinity  of  an  adjacent-  channel  non-  SMR  licensee,  Nextel  must  limit  use  of  its  band-  edge  channel  to  avoid  interference.  We  estimate  that  this 
 reduces  the  utility  of  the  band  edge  channels  by  fifty-  percent,  because  they  can  still  be  used  in  areas  where  the  adjacent  non-  SMR  licensee  is  operating  on  a  non-  band-  edge  channel.  A  fifty-  percent  impairment  to 
 one  quarter  of  the  eighty  interleaved  channels  translates  to  a  12.5  percent  reduction  in  capacity  effectively  one  out  of  every  eight  channels  that  Nextel  is  unable  to  use  on  interleaved  spectrum  but  could 
 use  if  the  same  channels  formed  a  single  contiguous  block.  Thus,  we  believe  a  12.5  percent  discount  is  an  appropriate  benchmark  for  the  technical  efficiency  loss  in  an  iDEN  configuration  from  the  spectrum  being 
 non-  contiguous. 
 319.  Applying  this  analysis  to  the  interleaved  spectrum  rights  being  given  up  by  Nextel,  we  have  reviewed  Nextels  interleaved  spectrum  holdings  in  eleven  top  US  markets.  733  We  believe  that 


 focusing  on  Nextels  spectrum  holdings  in  top  markets  is  appropriate  because  these  are  the  markets  where  Nextels  gains  and  losses  of  spectrum  are  likely  to  have  the  most  significant  impact  on  efficiency.  In  less 
 populated  markets,  efficiency  gains  from  using  contiguous  as  opposed  to  non-  contiguous  spectrum  are  less  likely  to  translate  into  an  economic  benefit  for  Nextel,  and  the  net  loss  of  bandwidth  is  less  likely  to 
 translate  into  an  economic  loss.  In  these  markets,  Nextel  holds  an  average  of  3.84  megahertz  of  interleaved  SMR  spectrum  in  fact,  in  all  but  two  of  these  markets,  it  holds  all  eighty  available  interleaved 
 SMR  channels.  734  On  average,  non-  Nextel  incumbents  occupy  only  0.08  megahertz  of  spectrum  in  the  interleaved  EA  blocks  licensed  to  Nextel.  Because  these  non-  Nextel  incumbents  must  be  protected  by 
 Nextel,  we  attribute  an  average  of  3.76  megahertz  of  interleaved  spectrum  to  Nextel. 
 320.  To  determine  the  value  of  this  spectrum,  we  start  with  our  $1.70/  MHz-  pop  baseline  value  for  contiguous  800  MHz  spectrum,  and  discount  it  by  12.5  percent,  resulting  in  a  MHz-  pops  value  of 


 732  47  C.  F.  R.    90.683. 
 733  For  purposes  of  this  review,  we  have  analyzed  eleven  of  the  top  fifteen  US  markets,  excluding  three 
 border  markets  Detroit,  Seattle,  and  San  Diego  as  well  as  Atlanta.  The  border  markets  are  excluded  because  under  band  reconfiguration,  Nextel  will  both  give  up  and  receive  smaller  amounts  of  800  MHz  spectrum  in  these 


 markets,  so  they  are  not  representative.  We  have  excluded  Atlanta  because  Southern  LINC  may  receive  a  significant  portion  of  the  contiguous  800  MHz  spectrum  in  that  market  if  it  elects  ESMR  status.  See    164-  169 
 supra.  Thus,  it  is  also  not  a  representative  market. 
 734  See  Exhibits  attached  to  Letter,  dated  July  26,  2002,  from  Michael  K.  Powell,  Chairman,  Federal 
 Communications  Commission  to  the  Honorable  W.  J.  (Billy)  Tauzin,  Chairman,  Committee  on  Energy  and  Commerce,  U  .S.  House  of  Representatives  (2002  Report  to  Congress). 
151
 Federal  Communications  Commission  FCC  04-  168 
 152 
 $1.49.  735  In  addition,  because  Nextel  does  not  have  full  nationwide  coverage  on  interleaved  spectrum,  we  adjust  the  population  coverage  figure  from  286  million  to  234  million.  736  This  results  an  approximate 
 valuation  of  $1.309  billion  for  Nextels  interleaved  spectrum  rights. 
 321.  General  Category.  The  806-  809.75/  851-  854.75  MHz  General  Category  band  more  closely  resembles  contiguous  spectrum  than  the  800  MHz  interleaved  band,  because  it  is  not  divided  into 


 interleaved  band  segments  specifically  assigned  to  SMR,  public  safety,  and  B/  ILT.  Instead,  the  General  Category  band  is  segmented  into  six  contiguous  twenty-  five  channel  blocks  licensed  on  an  EA  basis.  737 
 The  vast  majority  of  these  EA  licenses  are  held  by  Nextel.  The  band  is  not  fully  contiguous,  because  EA  licensees  must  protect  grandfathered  site-  based  licenses  in  the  General  Category  band.  Thus,  in  markets 
 where  there  are  non-  Nextel  incumbents,  Nextel  must  maintain  a  seventy-  mile  spacing  for  co-  channel  interference  protection,  738  which  will  likely  prevent  Nextel  from  employing  that  channel  in  that  same 
 market.  To  account  for  this  circumstance,  we  discount  Nextels  spectrum  rights  in  the  General  Category  by  the  number  of  channels  that  it  is  prevented  from  using  because  of  the  need  to  protect  co-  channel 
 incumbents.  But  in  contrast  to  the  interleaved  band,  we  do  not  consider  it  necessary  to  discount  Nextels  General  Category  spectrum  rights  holdings  based  on  the  presence  of  adjacent  channel  non-  SMR 
 incumbents.  Most  of  the  General  Category  incumbents  are  single-  channel  conventional  systems  rather  than  the  five-  channel  trunked  systems  found  in  the  interleaved  block.  In  addition,  over  the  past  several 
 years  Nextel  has  purchased  the  spectrum  rights  of  many  of  these  incumbents  in  order  to  clear  and  consolidate  its  General  Category  spectrum  rights.  This  affords  Nextel  more  channels  to  choose  from  in  the 
 General  Category  band  than  it  has  in  the  interleaved  band,  even  where  incumbents  in  adjacent  non-  SMR  bands  that  must  be  protected. 


 322.  Using  the  same  markets  that  we  have  reviewed  to  assess  Nextels  interleaved  spectrum  rights,  our  licensing  records  indicate  that  Nextel  holds  an  average  of  6.9  megahertz  of  General  Category 
 spectrum  in  these  markets  (out  of  a  total  of  7.5  megahertz)  through  EA  licenses.  On  average,  non-  Nextel  incumbents  occupy  1.78  megahertz  of  spectrum  in  the  EA  blocks  licensed  to  Nextel  in  these  markets.  739 
 Because  these  co-  channel  incumbents  prevent  Nextel  from  using  all  of  its  General  Category  channels  in  a  particular  market,  Nextel  is  on  average  only  able  to  use  5.12  megahertz  of  its  total  6.9  megahertz  of 
 General  Category  spectrum.  We  therefore  apply  our  $1.70/  MHz-  pop  baseline  to  5.12  megahertz,  and  use  the  same  adjusted  population  figure  (234  million)  applied  to  the  interleaved  spectrum,  resulting  in  an 
 approximate  valuation  of  $2.037  billion  for  Nextels  General  Category  spectrum  rights. 
 323.  Combined  800  MHz  Spectrum  Offsets.  Offsetting  the  valuation  amounts  for  Nextels  contiguous  and  non-  contiguous  spectrum  rights  as  determined  above  results  in  an  offset  to  Nextel  of 


 735  We  recognize  that  the  $1.70  MHz-  pops  value  we  have  derived  for  1.9  GHz  is  based  in  part  on  the 
 nationwide  nature  of  that  spectrum  block,  whereas  the  800  MHz  spectrum  being  given  up  by  Nextel  does  not  cover  100  percent  of  the  population.  However,  the  coverage  afforded  by  Nextels  800  MHz  interleaved  and  General 


 Category  spectrum  is  substantial:  Nextel  covers  approximately  234  million  pops  (about  eighty-  one  percent  of  the  national  population)  and  virtually  all  major  markets.  We  regard  this  as  sufficiently  close  to  nationwide  coverage 
 that  applying  the  same  valuation  is  appropriate. 
 736  See  Kane  Reece  Study  at  36,  Table  5B.  Kane  Reece  bases  the  estimate  of  Nextels  coverage  on 
 Commission  licensing  records. 
 737  See  47  CFR    90.615 


 738  See  47  C.  F.  R.    90.621. 
 739  See  2002  Report  to  Congress. 
152
 Federal  Communications  Commission  FCC  04-  168 
 153 
 approximately  $1.622  billion  for  its  net  loss  of  800  MHz  spectrum.  We  note  that  our  calculation  is  based  on  a  spectrum  amount  that  is  slightly  higher  than  the  4.5  megahertz  identified  by  Nextel  as  the  average 
 amount  of  800  MHz  net  bandwidth  it  is  giving  up  in  the  exchange.  740  However,  we  believe  this  amount  also  provides  a  reasonable  basis  for  valuation  if  we  were  to  use  4.5  megahertz  as  our  benchmark.  By 
 relinquishing  4.5  megahertz  of  spectrum  on  a  nationwide  basis,  Nextel  is  giving  up  forty-  five  percent  of  the  bandwidth  it  is  gaining  at  1.9  GHz.  But  our  $1.607  billion  valuation  of  Nextels  relinquished  800  MHz 
 spectrum  is  approximately  one  third  of  the  $4.86  billion  value  we  attribute  to  the  1.9  GHz  spectrum.  Thus,  on  a  per-  MHz  basis,  this  spectrum  has  a  value  twenty-  seven  percent  lower  than  the  1.9  GHz  spectrum.  We 
 regard  this  as  an  appropriate  discount  to  account  for  the  non-  contiguous  nature  of  some  of  the  spectrum  and  for  the  somewhat  lower  population  coverage.  Accordingly,  in  the  financial  reconciliation  to  be  made 
 by  the  Transition  Administrator  at  the  end  of  the  band  reconfiguration  process,  Nextel  will  receive  a  credit  of  $1.607  billion  for  its  relinquishment  of  800  MHz  spectrum  rights.  741 


 (iii)  700  MHz  Guard  Band  Spectrum 
 324.  Nextel  submits  that  it  paid  $350  million  at  auction  for  its  700  MHz  Guard  Band  spectrum  and  thus  should  be  credited  that  amount  as  part  of  the  Commissions  determination  of  compensation  that  is 


 equitable  to  Nextel.  We  disagree.  Given  the  slow  development  of  services  in  the  700  MHz  Guard  Band,  and  the  presence  of  incumbent  television  stations  that  may  remain  there  beyond  the  period  contemplated  in 
 the  700  MHz  Guard  Band  licensees  business  plans,  there  is  no  assurance  that  the  Guard  Band  spectrum  is  worth  today  what  Nextel  paid  for  it  in  2001.  Moreover,  as  noted,  supra,  this  spectrum  cannot  be  made 
 available  to  public  safety  in  the  near  term  and  any  potential  long-  term  benefit  it  might  afford  to  public  safety  or  any  value  it  might  have  in  the  marketplace  is  purely  speculative  at  this  point.  742  That  said, 
 however,  we  have  no  basis  to  conclude,  absolutely,  that  the  record  in  the  future  rule  making  proceeding  will  not  inform  us  that  the  700  MHz  Guard  Band  spectrum  may  be  used  to  benefit  of  public  safety.  The 
 above  factors  considered,  we  have  determined  that  Nextels  relinquishing  its  700  MHz  Guard  Band  spectrum  although  its  present  worth  cannot  legitimately  be  quantified  in  monetary  terms  it  does  add  de 
 minimis  value  to  the  overall  bundle  of  spectral  and  financial  benefits  that  Nextel  brings  to  the  table  to  justify  giving  it  access  to  the  1.9  GHz  spectrum.  Thus,  Nextels  surrender  of  this  spectrum  has  weighed, 
 albeit  not  heavily,  in  the  equities  that  undergird  our  determination  that  the  balance  we  establish  today  is  equitable  to  all  concerned. 


 5.  Financial  Aspects  of  Band  Reconfiguration 
 325.  The  financial  and  other  aspects  of  band  reconfiguration  will  be  conducted  in  a  manner  that  provides  optimum  transparency  and  protection  of  affected  licensees  and  the  public.  The  first  step  in  the 


 process  will  be  Nextels  delivery  to  the  Commission  the  following  set  of  documents.  The  items  listed  in  the  first  three  bullets  below  ensure  that  funds  for  band  reconfiguration  will  remain  available  until  the 
 project  is  completed.  The  item  in  the  fourth  bullet  governs  companies  related  to  Nextel  such  as  Nextel  Partners,  which  will  be  required  to  perform  certain  acts,  e.  g.,  reconfiguration  of  their  own  facilities,  in 
 connection  with  band  reconfiguration.  Moreover,  certain  of  such  companies  and,  it  is  believed,  Nextel, 
 740  Our  calculations  based  on  the  top  markets  show  Nextel  giving  up  an  average  of  4.96  megahertz  in 
 these  markets  rather  than  the  4.5  megahertz  that  Nextel  identified  based  on  a  running  average  of  all  markets  nationwide.  Because  the  top  markets  are  where  demand  for  spectrum  capacity  is  likely  to  be  highest,  we  see  them 


 as  providing  an  appropriate  measure  of  the  value  of  spectrum  that  Nextel  is  giving  up,  even  if  the  average  amount  of  spectrum  on  a  nationwide  basis  is  slightly  lower. 


 741  See    35  supra. 
 742  See    278  supra. 
153
 Federal  Communications  Commission  FCC  04-  168 
 158 
 consolidation  would  hinder  their  access  to  needed  spectrum,  752  because  business  radio  users  with  eligibility  rules  less  stringent  than  those  applicable  to  Industrial/  Land  Transportation  users  would 
 dominate  a  consolidated  band.  753  Cinergy,  Entergy,  and  Scana  also  opposed,  for  the  same  reasons,  lifting  the  freeze  on  intercategory  sharing.  754  Boeing  averred  that  the  current  service  pool  division  in  the  band 
 and  the  freeze  on  intercategory  sharing  protects  against  the  incursions  of  CMRS  operations  into  Private  Land  Mobile  Radio  spectrum.  755  However,  a  contrary  view  was  expressed  by  parties  who  argued  that 
 allowing  CMRS  operations  would  be  beneficial  to  the  extent  that  it  affords  additional  flexibility  in  spectrum  use.  756  Others  support  consolidation,  inter  alia  because  they  believe  it  would  promote  spectrum-sharing. 
 757  One  commenting  party  urged  that  we  prohibit  cellularized  operation  in  the  consolidated  900 
 MHz  band  lest  the  interference  problem  currently  encountered  by  800  MHz  systems  be  replicated  at  900  MHz.  758 


 334.  We  are  consolidating  the  800  MHz  and  900  MHz  B/  ILT  Pools.  Any  eligible  Business  or  Industrial/  Land  Transportation  entity  will  be  eligible  to  be  licensed  on  the  consolidated  channels.  759  We 
 agree  with  the  parties,  supra,  who  note  that  our  recent  refarming  efforts  in  consolidating  the  service  pools  in  bands  below  512  MHz  have  resulted  in  improved  spectrum  efficiency  without  undue  burden  on 
 licensees.  760  Thus,  we  are  not  persuaded  by  the  arguments  from  some  CII  interests  that  todays  action  will  impair  their  access  to  spectrum.  761  Also,  because  consolidation  makes  intercategory  sharing  moot, 
 licensees  and  the  Commission  will  be  spared  the  resource  burdens  associated  with  intercategory  sharing 


 752  API  Comments  at  16;  Cinergy  Comments  at  58-  60;  Entergy  Comments  at  53;  FL  P&  L  Comments  at  5; 
 Scana  Comments  at  42. 
 753  Compare  47  C.  F.  R.    90.35(  b)  (Business  Pool)  with  47  C.  F.  R    90.617(  b)  (Industrial//  Land 
 Transportation  Pool). 
 754  Cinergy  Comments  at  58-  60;  Entergy  Comments  at  53;  Scana  Comments  at  42;  see  also  API 
 Comments  at  16. 
 755  If  the  freeze  were  lifted,  it  is  likely  that  history  would  repeat  itself  and  SMR  applicants  will  inundate 
 the  Commission  with  requests  for  intercategory  sharing  with  a  view  towards  converting  increasingly  scarce  private  radio  spectrum  to  commercial  services.  Boeing  Comments  at  12. 


 756  Cascade  Two  Way  Radio  Comments  at  4. 
 757  Exelon  Comments  at  9.  In  addition  to  consolidating  the  800  MHz  and  900  MHz  Business  and 
 Industrial/  Land  Transportation  services  into  one  pool,  Exelon  also  recommends  that  we  permit  new  intercategory  sharing.  Id.  Exelon  contends  that  the  only  restriction  on  this  new  intercategory  sharing  should  be  a  strict 


 prohibition  against  the  operation  of  cellularized  systems  in  the  expanded  pools  in  order  to  protect  them  from  the  same  interference  problems  currently  being  experienced  by  Business  and  Industrial/  Land  Transportation  licensees. 
 Id. 
 758  See  Exelon  Comments  at  9. 


 759  See  47  C.  F.  R.    90.35. 
 760  See  generally  In  The  Matter  Of  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  No.  92-  235  (Refarming). 


 761  API  Comments  at  16;  Cinergy  Comments  at  58-  60;  Entergy  Comments  at  53;  FL  P&  L  Comments  at  5; 
 Scana  Comments  at  42. 
158
 Federal  Communications  Commission  FCC  04-  168 
 159 
 requests.  762  Finally,  although  we  note  the  concern  expressed  about  the  effects  of  cellularized  operation  in  a  consolidated  900  MHz  band,  we  believe  that  proscribing  cellularized  operation  in  a  band  in  which 
 interference  to  public  safety  communications  is  not  an  issue  could  unnecessarily  hinder  realization  of  the  efficiencies  inherent  in  cellular-  architecture  and  other  advanced  technologies. 


 VIII.  OPERATIONAL  FLEXIBILITY  IN  THE  900  MHZ  BAND 
 335.  In  the  Balanced  Budget  Act  Proceeding  763  the  Commission  amended  its  rules  to  permit  CMRS  use  of  PLMR  frequencies  in  the  800  MHz  land  mobile  band  and  allowed  PLMRS  licensees  to 


 transfer  their  licenses  to  CMRS  entities.  764  The  Commission  sought  comment  on  whether,  in  the  interest  of  regulatory  symmetry,  similar  rules  should  apply  in  the  900  MHz  land  mobile  spectrum.  765  In  the  NPRM  in 
 this  proceeding,  the  Commission  sought  further  comment  on  this  issue  in  light  of  Nextels  White  Paper  proposal  to  accommodate  displaced  800  MHz  B/  ILT  licensees  in  the  900  MHz  land  mobile  band.  766 


 336.  In  general,  parties  supported  the  proposal  to  allow  CMRS  operations  on  900  MHz  PLMR  spectrum.  767  Although  the  proposal  to  relocate  all  800  MHz  B/  ILT  and  SMR  licensees  to  the  900  MHz 
 band  is  no  longer  germane,  we  find  that  other  factors  merit  our  making  the  800  MHz  and  900  MHz  CMRS  rules  complementary.  In  particular,  we  note  that  Nextel  will  have  to  shift  some  of  its  operations  from  the 
 800  MHz  band  to  900  MHz  in  order  to  provide  the  green  space  necessary  to  effect  reconfiguration  of  the  800  MHz  band.  Moreover,  as  noted  above,  768  Nextel  may  have  to  share  spectrum  in  the  816-  824  MHz 
 segment  of  the  reconfigured  band  with  other  ESMR  licensees.  To  the  extent  that  such  sharing  may  reduce  the  amount  of  800  MHz  spectrum  available  to  Nextel,  we  believe  we  should  provide  the  regulatory 
 flexibility  necessary  for  Nextel  to  make  up  the  shortfall  by  using  900  MHz  channels.  We  have  less 
 762  Under  the  existing  rules,  there  are  provisions  that  allow  entities  establishing  eligibility  under  one  radio 
 service  to  obtain  a  license  for  a  frequency  in  another  radio  service  under  certain  conditions  (interservice  sharing).  Because  we  are  consolidating  the  Business  and  Industrial/  Land  Transportation  Pools  into  one  pool  and  eliminating 


 the  individual  radio  service  categories,  interservice  sharing  rules  will  no  longer  be  necessary  with  regard  to  applicants  from  either  service  seeking  frequencies  previously  allotted  to  the  other  service.  Under  consolidation, 
 applicants  will  have  the  opportunity  to  apply  directly  for  in-  pool  frequencies  that  were  previously  allocated  to  either  the  Business  or  Industrial/  Land  Transportation  service.  We  will  modify  the  Commissions  Rules 
 accordingly.  However,  our  action  does  not  otherwise  affect  the  current  freeze  on  intercategory  sharing  with  respect  to  applicants  from  the  newly  consolidated  Business/  Industrial  Land  Transportation  Pool  seeking  intercategory 
 sharing  of  those  frequencies  specifically  allocated  to  Public  Safety  Pool.  See  Inter-  Category  Sharing  of  Private  Mobile  Radio  Frequencies  in  the  806-  821/  851-  866  MHz  Bands,  Order,  10  FCC  Rcd  7350  (WTB  1995) 
 (Intercategory  Freeze  Order). 
 763  See  generally,  Implementation  of  Sections  309(  j)  and  337  of  Communications  Act  of  1934  as 
 Amended,  WT  Docket  99-  87  (BBA  Proceeding). 
 764  See  Implementation  of  Sections  309(  j)  and  337  of  Communications  Act  of  1934  as  Amended,  Report 
 and  Order  and  Further  Notice  of  Proposed  Rulemaking,  WT  Docket  99-  87,  15  FCC  Rcd  22709,  22761    110-  111  (FCC  2000)  (BBA  R&  O  and  FNPRM). 


 765  Id.,  15  FCC  Rcd  at  22773-  22774    143-  144. 
 766  NPRM,  17  FCC  Rcd  4918  at    86.  This  essentially  transferred  the  issue  from  WT  Docket  99-  87  to  the 
 instant  proceeding.  See  Implementation  of  Sections  309(  j)  and  337  of  Communications  Act  of  1934  as  Amended,  Second  Report  and  Order  and  Second  Further  Notice  of  Proposed  Rulemaking,  18  FCC  Rcd  3034,  3047  n.  5. 


 767  See  Nextel  Comments  at  65.  See  also  Ad  Hoc  Wireless  Alliance  Comments  at  8-  10. 
 768  See    159  supra. 
159
 Federal  Communications  Commission  FCC  04-  168 
 160 
 concern  about  unacceptable  interference  resulting  from  such  900  MHz  ESMR  use  because  there  are  no  public  safety  channels  allocated  in  the  900  MHz  band.  Moreover,  because  there  currently  is  no  extensive 
 ESMR  use  of  the  900  MHz  band,  ESMR  licensees  designing  systems  from  the  ground  up  in  the  900  MHz  band  will  be  better  able  to  take  interference  abatement  into  account  when  designing  their  systems. 
 However,  we  will  not  hesitate  to  act  should  it  appear  that  the  interference  environment  in  the  900  MHz  band  is  becoming  unfavorable. 


 337.  We  therefore  will  allow  900  MHz  PLMR  licensees  to  initiate  CMRS  operations  on  their  currently  authorized  spectrum  or  to  assign  their  authorizations  to  others  for  CMRS  use.  In  the  BBA  R&  O 
 and  FNPRM,  the  Commission  inquired  whether  to  impose  a  holding  period  requirement  on  all  new  900  MHz  applications,  thereby  to  avoid  trafficking  in  900  MHz  licenses.  769  Although  the  Commission,  in  the 
 BBA  Proceeding,  put  parties  on  notice  that  it  might  impose  a  holding  period  in  the  future  we  decline  to  do  so  since  we  observed  no  speculative  runs  on  900  MHz  PLMR  spectrum  after  the  release  of  the  BBA  R&  O 
 and  FNPRM.  770 
 IX.  CONCLUSION 
 338.  There  may  be  no  matter  within  our  jurisdiction  more  crucial  to  Homeland  Security  and  the  overall  general  safety  of  life  and  property  than  assuring  that  public  safety  communications  systems  are  free 


 from  unacceptable  interference  and  have  adequate  capacity.  Indeed,  one  of  the  express  purposes  of  this  agencys  creation  was  for  the  purpose  of  promoting  safety  of  life  and  property  through  the  use  of  wire 
 and  radio  communications,  771  and  we  thus  would  be  derelict  were  we  to  ignore  an  opportunity  such  as  that  represented  by  800  MHz  band  reconfiguration  that  allows  us  to  increase  the  reliability  and  capacity 
 of  800  MHz  public  safety  communications  systems. 
 339.  We  stress,  however,  that  the  actions  we  take  today  in  response  to  a  unique  set  of  circumstances  regarding  interference  to  public  safety  communications  in  the  800  MHz  band  are  consistent 


 with  our  statutory  obligations  generally  to  use  competitive  bidding  in  the  allocation  of  spectrum.  Although  our  emphasis  herein  has  been  on  public  safety  requirements,  the  far  more  favorable  interference 
 environment  in  the  post-  reconfiguration  800  MHz  band  will  ensure  other  800  MHz  licensees  will  also  benefit  from  the  band  reconfiguration  plan  and  related  policies  that  we  have  adopted.  Underlying  the 
 policies  we  enunciate  today  is  the  tenet  put  forth  by  many  of  the  commenting  parties  in  this  proceeding:  parties  must  work  together  to  abate  interference  and  endure  an  occasional  hardship  as  a  necessary 
 concession  to  the  nations  overall  Homeland  Security  obligations. 
 X.  ORDERING  CLAUSES 
 340.  IT  IS  ORDERED  that,  pursuant  to  the  authority  of  Sections  1,  4(  i),  303(  f)  and  (r),  309,  316,  and  332  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  303(  f)  and  (r), 


 309,  316,  and  332,  the  rule  changes  specified  in  Appendix  C  are  adopted. 


 769  BBA  R&  O  and  FNPRM,  15  FCC  Rcd  22709,  22774    144. 
 770  Moreover,  we  believe  our  existing  rules  also  provide  necessary  safeguards.  See  47  C.  F.  R.    90.155 
 (requires  licensees  to  have  stations  placed  in  operation  within  twelve  months  from  the  date  of  grant  to  avoid  automatic  cancellation;  47  C.  F.  R.    90.609  (requires  complete  construction  of  a  radio  facility  prior  to  any  transfer 


 or  assignment)  and  47  C.  F.  R.  90.157  (licenses  will  cancel  automatically  if  there  is  a  discontinuance  of  station  operation  for  twelve  months  or  more). 


 771  See  47  U.  S.  C.    151. 
160
 Federal  Communications  Commission  FCC  04-  168 
 165 
 process,  as  certified  by  the  Transition  Administrator  and  if  band  reconfiguration  has  not  been  completed  in  the  border  areas,  elect  to  extend  the  life  of  the  letter  of  credit  or  elect  to  secure  a  separate  letter  of  credit,  in 
 an  amount  sufficient  to  ensure  the  reconfiguration  of  the  800  MHz  licensees  operating  in  the  border  area,  as  detailed  herein. 


 357.  IT  IS  FURTHER  ORDERED  that,  as  a  condition  of  its  800  MHz  and  1.9  GHz  modified  licenses,  in  the  event  that  the  computations  described  in  paragraphs    329-  332  supra  disclose  that  the 
 credits  afforded  Nextel  thereunder  are  less  than  the  value  of  the  1.9  GHz  spectrum  rights  that  Nextel  is  receiving  hereunder,  Nextel  SHALL  DEPOSIT  the  difference  in  the  United  States  Treasury;  and  Nextel 
 SHALL  NOT  discontinue  the  letter(  s)  of  credit  it  is  required  to  maintain  hereunder  until  such  deposit  has  been  received  and  acknowledged. 


 358.  IT  IS  FURTHER  ORDERED  that,  within  thirty  days  of  Commission  approval  of  the  Transition  Administrator,  the  Transition  Administrator  will  provide  the  Commission  with  a  schedule 
 detailing  when  band  reconfiguration  shall  commence  for  each  NPSPAC-  Region.  The  plan  should  also  detail  by  NPSPAC  Region  which  relocation  option  each  non-  Nextel  ESMR  licensees  has  chosen 


 359.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Rulemakings  filed  by  the  Wireless  Information  Networks  Forum  and  UTStarcom  Inc.,  and  the  Petition  for  Waivers  filed  by  Lucent 
 Technologies  Inc.,  Ascom  Wireless  Solutions  Inc.,  Alaska  Power  &  Telephone  Company  Inc.,  and  UTStarcom  Inc.  and  Drew  University  ARE  DENIED  IN  PART. 


 360.  IT  IS  Further  ORDERED  that  the  PCIA  Petition  for  Rulemaking  IS  GRANTED  to  the  extent  stated  herein  and  denied  in  all  other  respects.  This  action  is  taken  pursuant  to  Sections  4(  i),  303(  f) 
 and  (r),  and  332  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  303(  f)  and  (r),  and  332. 


 361.  IT  IS  FURTHER  ORDERED  that  the  Petitions  for  Reconsideration  and  Clarification  filed  by  the  Association  for  Maximum  Service  Television  and  the  National  Association  of  Broadcasters,  and  the 
 Society  of  Broadcast  Engineers  ARE  GRANTED  to  the  extent  described  herein. 
 362.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Reconsideration  and  Clarification  filed  by  the  Boeing  Company  IS  DENIED  to  the  extent  described  herein. 


 363.  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  B  is  ADOPTED. 
 364.  IT  IS  FURTHER  ORDERED  that  the  Commission's  Consumer  Information  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Report  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 
165
 Federal  Communications  Commission  FCC  04-  168 
 166 
 XI.  PROCEDURAL  MATTERS 
 A.  Regulatory  Flexibility  Act 
 365.  As  required  by  the  Regulatory  Flexibility  Act  (RFA),  the  Commission  has  prepared  a  Final  Regulatory  Flexibility  Analysis  (Supplemental  FRFA)  of  the  possible  impact  on  small  entities  of  the 


 changes  in  its  rules  adopted  in  this  Report  and  Order.  The  FRFA  is  set  forth  in  Appendix  B.  The  Office  of  Public  Affairs  will  send  a  copy  of  the  Report  and  Order,  including  the  FRFA,  to  the  Chief  Counsel  for 
 Advocacy  of  the  Small  Business  Administration,  in  accordance  with  the  RFA. 
 B.  Paperwork  Reduction  Act 
 366.  This  Report  and  Order  contains  a  new  information  collection,  which  has  been  submitted  to  the  Office  of  Management  and  Budget  (OMB)  for  approval.  As  part  of  our  continuing  effort  to  reduce 


 paperwork  burdens,  we  invite  the  general  public  to  take  this  opportunity  to  comment  on  the  information  collection  contained  in  this  Report  and  Order,  as  required  by  the  Paperwork  Reduction  Act  of  1995,  Pub. 
 L.  No.  104-  13.  Public  comments  should  be  submitted  to  OMB  and  the  Commission,  and  are  due  thirty  days  from  date  of  publication  of  this  Report  and  Order  in  the  Federal  Register.  Comments  should  address: 
 (a)  whether  the  proposed  collection  of  information  is  necessary  for  the  proper  performance  of  the  functions  of  the  Commission,  including  whether  the  information  shall  have  practical  utility;  (b)  the  accuracy  of  the 
 Commission's  burden  estimates;  (c)  ways  to  enhance  the  quality,  utility,  and  clarity  of  the  information  collected;  and  (d)  ways  to  minimize  the  burden  of  the  collection  of  information  on  the  respondents, 
 including  the  use  of  automated  collection  techniques  or  other  forms  of  information  technology. 
166
 Federal  Communications  Commission  FCC  04-  168 
 171 
 businesses. 
 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  To  Which  the  Rules  Will  Apply: 


 9.  The  RFA  directs  agencies  to  provide  a  description  of,  and,  where  feasible,  an  estimate  of  the  number  of  small  entities  that  may  be  affected  by  the  proposed  rules,  if  adopted.  793  The  RFA  generally 
 defines  the  term  small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  794  In  addition,  the  term  small  business  has  the 
 same  meaning  as  the  term  small  business  concern  under  the  Small  Business  Act.  795  A  small  business  concern  is  one  that  is:  (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).  796  Below,  we  further  describe  and  estimate  the  number  of  small  entity  licensees  and  regulatees  that 
 may  be  affected  by  the  rule  changes  adopted  herein. 
 10.  A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not  dominant  in  its  field.  797  Nationwide,  there  are  approximately  1.6  million 


 small  organizations.  798  We  note  that,  according  to  SBA  data,  there  are  approximately  22.4  million  small  businesses  nationwide.  799  We  describe  and  estimate,  below,  the  number  of  small  entities  applicants, 
 licensees,  and  radio  equipment  manufacturers  that  may  be  affected  by  this  Report  and  Order. 
 11.  Governmental  Entities.  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.  800  As  of  1997,  there  were  approximately  87,453  governmental  jurisdictions  in  the  United  States.  801  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. 
 12.  Wireless  Telecommunications.  The  SBA  has  developed  a  small  business  size  standard  for 
 793  5  U.  S.  C.    603(  b)(  3). 


 794  5  U.  S.  C.    601(  6). 
 795  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small-  business  concern  in  the  Small 
 Business  Act,  15  U.  S.  C.    632).  Pursuant  to  5  U.  S.  C.    601(  3),  the  statutory  definition  of  a  small  business  applies  unless  an  agency,  after  consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  and  after 


 opportunity  for  public  comment,  establishes  one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register. 


 796  15  U.  S.  C.    632. 
 797  5  U.  S.  C.    601(  4). 
 798  Independent  Sector,  The  New  Nonprofit  Almanac  &  Desk  Reference  (2002). 
 799  See  SBA,  Programs  and  Services,  SBA  Pamphlet  No.  CO-  0028,  at  page  40  (July  2002). 
 800  5  U.  S.  C.    601(  5). 
 801  U.  S.  Census  Bureau,  Statistical  Abstract  of  the  United  States:  2000,  Section  9,  pages  299-  300,  Tables 
 490  and  492. 
171
 Federal  Communications  Commission  FCC  04-  168 
 172 
 wireless  firms  within  the  broad  economic  census  category  Cellular  and  Other  Wireless  Telecommunications.  802  Under  this  SBA  category,  a  wireless  business  is  small  if  it  has  1,500  or  fewer 
 employees.  For  the  census  category  Cellular  and  Other  Wireless  Telecommunications  firms,  Census  Bureau  data  for  1997  show  that  there  were  977  firms  in  this  category,  total,  that  operated  for  the  entire 
 year.  803  Of  this  total,  965  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  12  firms  had  employment  of  1,000  employees  or  more.  804  Thus,  under  this  category  and  size  standard,  the  majority 
 of  firms  can  be  considered  small. 
 13.  Public  Safety  Radio  Licensees.  As  a  general  matter,  Public  Safety  Radio  Pool  licensees  include  police,  fire,  local  government,  forestry  conservation,  highway  maintenance,  and  emergency 


 medical  services.  805  The  SBA  rules  contain  a  definition  for  cellular  and  other  wireless  telecommunications  companies  which  encompasses  business  entities  engaged  in  radiotelephone  communications  employing  no 
 more  that  1,500  persons.  806  There  are  a  total  of  approximately  127,540  licensees  within  these  services.  807  With  respect  to  local  governments,  in  particular,  since  many  governmental  entities  as  well  as  private 
 businesses  comprise  the  licensees  for  these  services,  we  include  under  public  safety  services  the  number  of  government  entities  affected. 


 14.  Business,  Industrial  and  Land  Transportation  Licensees.  At  present,  there  are  3239  Business  and  Industrial/  Land  Transportation  (I/  LT)  licensees  that  may  be  affected  by  this  Report  and  Order.  808  The 
 Commission  does  not  require  B/  ILT  licensees  to  disclose  information  about  number  of  employees,  so  the  Commission  does  not  have  information  that  could  be  used  to  determine  how  many  B/  ILT  licensees 


 802  13  C.  F.  R.    121.201,  NAICS  code  513322  (changed  to  517212  in  October  2002). 
 803  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000). 


 804  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000). 
 The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more. 


 805  See  subparts  A  and  B  of  Part  90  of  the  Commission's  Rules,  47  C.  F.  R.    90.1-  90.22.  Police  licensees 
 include  26,608  licensees  that  serve  state,  county,  and  municipal  enforcement  through  telephony  (voice),  telegraphy  (code),  and  teletype  and  facsimile  (printed  material).  Fire  licensees  include  22,677  licensees  comprised  of  private 


 volunteer  or  professional  fire  companies,  as  well  as  units  under  governmental  control.  Public  Safety  Radio  Pool  licensees  also  include  40,512  licensees  that  are  state,  county,  or  municipal  entities  that  use  radio  for  official 
 purposes.  There  are  also  7,325  forestry  service  licensees  comprised  of  licensees  from  state  departments  of  conservation  and  private  forest  organizations  that  set  up  communications  networks  among  fire  lookout  towers  and 
 ground  crews.  The  9,480  state  and  local  governments  are  highway  maintenance  licensees  that  provide  emergency  and  routine  communications  to  aid  other  public  safety  services  to  keep  main  roads  safe  for  vehicular  traffic. 
 Emergency  medical  licensees  (1,460)  use  these  channels  for  emergency  medical  service  communications  related  to  the  delivery  of  emergency  medical  treatment.  Another  19,478  licensees  include  medical  services,  rescue 
 organizations,  veterinarians,  persons  with  disabilities,  disaster  relief  organizations,  school  buses,  beach  patrols,  establishments  in  isolated  areas,  communications  standby  facilities,  and  emergency  repair  of  public 
 communications  facilities. 
 806  See  13  C.  F.  R.    121.201  (NAICS  Code  517212). 


 807  There  is  no  information  currently  available  about  the  number  within  the  127,540  that  have  less  than 
 1500  employees. 
 808  This  number  is  based  on  the  Commissions  licensing  database. 
172
 Federal  Communications  Commission  FCC  04-  168 
 173 
 constitute  small  entities  under  this  definition.  Moreover,  we  note  that  B/  ILT  licensees  generally  are  not  in  the  business  of  providing  cellular  or  other  wireless  telecommunications  services  but  instead  use  the 
 licensed  facilities  in  support  of  other  business  activities. 
 15.  Specialized  Mobile  Radio  Licenses.  The  Commission  awards  "small  entity"  and  "very  small  entity"  bidding  credits  in  auctions  for  Specialized  Mobile  Radio  (SMR)  geographic  area  licenses  in  the  800 


 MHz  and  900  MHz  bands  to  firms  that  had  revenues  of  no  more  than  $15  million  in  each  of  the  three  previous  calendar  years,  or  that  had  revenues  of  no  more  than  $3  million  in  each  of  the  previous  calendar 
 years,  respectively.  809  In  the  context  of  both  the  800  MHz  and  900  MHz  service,  the  SBA  has  approved  the  definitions  of  small  entity  and  very  small  entity.  810  These  bidding  credits  apply  to  SMR  providers  in 
 the  800  MHz  and  900  MHz  bands  that  either  hold  geographic  area  licenses  or  have  obtained  extended  implementation  authorizations.  The  Commission  does  not  know  how  many  firms  provide  800  MHz  or  900 
 MHz  geographic  area  SMR  service  pursuant  to  extended  implementation  authorizations,  nor  how  many  of  these  providers  have  annual  revenues  of  no  more  than  $15  million.  One  firm  has  over  $15  million  in 
 revenues.  The  Commission  assumes,  for  purposes  here,  that  all  of  the  remaining  existing  extended  implementation  authorizations  are  held  by  small  entities,  as  that  term  is  defined  by  the  SBA.  The 
 Commission  has  held  auctions  for  geographic  area  licenses  in  the  800  MHz  SMR  band.  In  the  800  MHz  auction,  38  of  the  524  licenses  won  were  won  by  small  and  very  small  entities. 


 16.  Wireless  Communications  Equipment  Manufacturers.  The  SBA  has  established  a  small  business  size  standard  for  radio  and  television  broadcasting  and  wireless  communications  equipment 
 manufacturing.  Under  the  standard,  firms  are  considered  small  if  they  have  1000  or  fewer  employees.  811  Census  Bureau  data  for  1997  indicates  that,  for  that  year,  there  were  a  total  of  1,215  establishments  812  in 
 this  category.  813  Of  those,  there  were  1,150  that  had  employment  under  500,  and  an  additional  37  that  had  employment  of  500  to  999.  The  Commission  estimates  that  the  majority  of  wireless  communications 
 equipment  manufacturers  are  small  businesses.  814 
 17.  Broadcast  Auxiliary  Service  (BAS).  BAS  involves  a  variety  of  transmitters,  generally  used  to  relay  broadcast  programming  to  the  public  (through  translator  and  booster  stations)  or  within  the  program 


 distribution  chain  (from  a  remote  news  gathering  unit  back  to  the  stations).  The  Commission  has  not 
 809  47  C.  F.  R.    90.814(  b)(  1). 
 810  See  Letter,  dated  Aug.  10,  1999,  from  A.  Alvarez,  Administrator,  Small  Business  Administration  to 
 Tom  Sugrue,  Chief,  Wireless  Telecommunications  Bureau,  Federal  Communications  Commission. 
 811  13  C.  F.  R.    121.201,  NAICS  code  334220. 


 812  The  number  of  "establishments"  is  a  less  helpful  indicator  of  small  business  prevalence  in  this  context 
 than  would  be  the  number  of  "firms"  or  "companies,"  because  the  latter  take  into  account  the  concept  of  common  ownership  or  control.  Any  single  physical  location  for  an  entity  is  an  establishment,  even  though  that  location  may 


 be  owned  by  a  different  establishment.  Thus,  the  number  given  may  reflect  inflated  numbers  of  businesses  in  this  category,  including  the  numbers  of  small  businesses.  In  this  category,  the  Census  break-  out  data  for  firms  or 
 companies  only  gives  the  total  number  of  such  entities  for  1997,  which  was  1,089. 
 813  U.  S.  Census  Bureau,  1997  Economic  Census,  Industry  Series:  Manufacturing,  "Industry  Statistics  by 
 Employment  Size,"  Table  4,  (issued  August  1999)  NAICS  code  334220.  We  note,  however  that  the  predominant  manufacturers  of  800  MHz  equipment,  Motorola  and  M/  A  COM  Private  Radio  Systems,  Inc.  are  not  considered 


 small  businesses. 
 814  We  note,  however  that  the  predominant  manufacturers  of  800  MHz  equipment,  Motorola  and  M/  A 
 COM  Private  Radio  Systems,  Inc.  are  not  considered  small  businesses. 
173
 Federal  Communications  Commission  FCC  04-  168 
 174 
 developed  a  definition  of  small  entities  specific  to  broadcast  auxiliary  licensees.  The  U.  S.  Small  Business  Administration  (SBA)  has  developed  small  business  size  standards,  as  follows:  1)  For  TV  BAS,  we  will 
 use  the  size  standard  for  Television  Broadcasting,  which  consists  of  all  such  companies  having  annual  receipts  of  no  more  than  $12.0  million;  815  2)  For  Aural  BAS,  we  will  use  the  size  standard  for  Radio 
 Stations,  which  consists  of  all  such  companies  having  annual  receipts  of  no  more  than  $6  million;  816  3)  For  Remote  Pickup  BAS  we  will  use  the  small  business  size  standard  for  Television  Broadcasting  when  used 
 by  a  TV  station  and  that  for  Radio  Stations  when  used  by  such  a  station. 
 18.  According  to  Commission  staff  review  of  BIA  Publications,  Inc.  Master  Access  Television  Analyzer  Database  as  of  May  16,  2003,  about  814  of  the  1,220  commercial  television  stations  in  the 


 United  States  had  revenues  of  $12  million  or  less.  We  note,  however,  that,  in  assessing  whether  a  business  concern  qualifies  as  small  under  the  above  definition,  business  (control)  affiliations  817  must  be  included.  818 
 Our  estimate,  therefore,  likely  overstates  the  number  of  small  entities  that  might  be  affected  by  our  action,  because  the  revenue  figure  on  which  it  is  based  does  not  include  or  aggregate  revenues  from  affiliated 
 companies.  There  are  also  2,127  low  power  television  stations  (LPTV).  819  Given  the  nature  of  this  service,  we  will  presume  that  all  LPTV  licensees  qualify  as  small  entities  under  the  SBA  size  standard.  According 
 to  Commission  staff  review  of  BIA  Publications,  Inc.,  Master  Access  Radio  Analyzer  Database,  as  of  May  16,  2003,  about  10,427  of  the  10,945  commercial  radio  stations  in  the  United  States  had  revenue  of  $6 
 million  or  less.  We  note,  however,  that  many  radio  stations  are  affiliated  with  much  larger  corporations  with  much  higher  revenue,  and,  that  in  assessing  whether  a  business  concern  qualifies  as  small  under  the 
 above  definition,  such  business  (control)  affiliations  820  are  included.  821  Our  estimate,  therefore,  likely  overstates  the  number  of  small  businesses  that  might  be  affected  by  our  action. 


 19.  Cable  Antenna  Relay  Service  (CARS).  CARS  includes  transmitters  generally  used  to  relay  cable  programming  within  cable  television  system  distribution  systems.  The  SBA  has  developed  a  small 
 business  size  standard  for  Cable  and  other  Program  Distribution,  which  consists  of  all  such  companies  having  annual  receipts  of  no  more  than  $12.5  million.  According  to  Census  Bureau  data  for  1997,  there 
 were  1,311  firms  within  the  industry  category  Cable  and  Other  Program  Distribution,  total,  that  operated  for  the  entire  year.  822  Of  this  total,  1,180  firms  had  annual  receipts  of  under  $10  million,  and  an  additional 
 fifty-  two  firms  had  receipts  of  $10  million  to  $24,999,999.00.  823  Thus,  under  this  standard,  the  majority  of 
 815  13  C.  F.  R.    121.201,  NAICS  code  515120. 


 816  Id.  NAICS  code  515112. 
 817  Concerns  are  affiliates  of  each  other  when  one  concern  controls  or  has  the  power  to  control  the  other 
 or  a  third  party  or  parties  controls  or  has  to  power  to  control  both.  13  C.  F.  R.    121.103(  a)(  1). 
 818  SBA  counts  the  receipts  or  employees  of  the  concern  whose  size  is  at  issue  and  those  of  all  its 
 domestic  concerns  size.  13  C.  F.  R.    121.103(  a)(  4). 
 819  FCC  News  Release,  Broadcast  Station  Totals  as  of  September  30,  2002  (Nov.  6,  2002). 


 820  Concerns  are  affiliates  of  each  other  when  one  concern  controls  or  has  the  power  to  control  the  other, 
 or  a  third  party  or  parties  controls  or  has  the  power  to  control  both.  13  C.  F.  R.    121.103(  a)(  1). 
 821  SBA  counts  the  receipts  or  employees  of  the  concern  whose  size  is  at  issue  and  those  of  all  its 
 domestic  and  foreign  affiliates,  regardless  of  whether  the  affiliates  are  organized  for  profit,  in  determining  the  concerns  size.  13  C.  F.  R.    121.103(  a)(  4). 


 822  13  C.  F.  R.    121.201,  NAICS  code  517510  (changed  from  513220  in  October  2002). 
 823  Id. 
174
 Federal  Communications  Commission  FCC  04-  168 
 175 
 firms  can  be  considered  small. 
 20.  Geostationary,  Non-  Geostationary  Orbit,  Fixed  Satellite,  or  Mobile  Satellite  Service  Operators  (including  2  GHz  MSS  systems).  The  Commission  has  not  developed  a  definition  of  small 


 entities  applicable  to  geostationary  or  non-  geostationary  orbit,  fixed-  satellite  or  mobile-  satellite  service  operators.  The  SBA  has  developed  a  small  business  size  standard  for  Satellite  Telecommunications 
 Carriers,  which  consists  of  all  such  companies  having  $12.5  million  or  less  in  annual  receipts.  824  According  to  Census  Bureau  data  for  1997,  there  were  324  firms  that  operated  for  the  entire  year.  825  Of 
 this  total,  273  firms  had  annual  receipts  under  $10  million,  and  an  additional  twenty-  four  firms  had  annual  receipts  of  $10  million  to  $24,999,990.  826  Thus,  under  this  size  standard,  the  majority  of  firms  can  be 
 considered  small. 
 21.  Fixed  Microwave  Services.  Microwave  services  include  common  carrier,  827  private-operational  fixed,  828  and  broadcast  auxiliary  radio  services.  829  At  present,  there  are  approximately  36,708 


 common  carrier  fixed  licensees  and  59,291  private  operational-  fixed  licensees  and  broadcast  auxiliary  radio  licensees  in  the  microwave  services.  The  Commission  has  not  yet  defined  a  small  business  with 
 respect  to  microwave  services.  For  purposes  of  the  FRFA,  we  will  use  the  SBAs  definition  applicable  to  wireless  and  other  telecommunications  companies  i.  e.,  an  entity  with  no  more  than  1,500  persons.  830 
 According  to  Census  Bureau  data  for  1997,  there  were  977  firms  in  this  category,  total,  that  operated  for  the  entire  year.  831  Of  this  total,  965  firms  had  employment  of  999  or  fewer  employees,  and  an  additional 
 twelve  firms  had  employment  of  1,000  employees  or  more.  832  Thus,  under  this  size  standard,  majority  of  firms  can  be  considered  small. 


 22.  We  note  that  the  number  of  firms  does  not  necessarily  track  the  number  of  licensees.  We  estimate  that  all  of  the  Fixed  Microwave  licensees  (excluding  broadcast  auxiliary  licensees)  would  qualify 
 824  13  C.  F.  R.    121.201,  NAICS  code  517410  (changed  from  513340  in  October  2002). 
 825  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Receipt  Size  of  Firms 
 Subject  to  Federal  Income  Tax:  1997,  Table  4,  NAICS  code  513340  (issued  October  2000). 
 826  Id. 


 827  47  CFR  Part  101  et  seq.  (formerly,  part  21  of  the  Commissions  Rules). 
 828  Persons  eligible  under  Parts  80  and  90  of  the  Commissions  rules  can  use  Private-  Operational  Fixed 
 Microwave  services.  See  47  CFR  parts  80  and  90.  Stations  in  this  service  are  called  operational-  fixed  to  distinguish  them  from  common  carrier  and  public  fixed  stations.  Only  the  licensee  may  use  the  operational-  fixed 


 station,  and  only  for  communications  related  to  the  licensees  commercial,  industrial,  or  safety  operations. 
 829  Auxiliary  Microwave  Service  is  governed  by  Part  74  of  Title  47  of  the  Commissions  Rules.  See  47 
 CFR  Part  74  et  seq.  Available  to  licensees  of  broadcast  stations  and  to  broadcast  and  cable  network  entities,  broadcast  auxiliary  microwave  stations  are  used  for  relaying  broadcast  television  signals  from  the  studio  to  the 


 transmitter,  or  between  two  points  such  as  a  main  studio  and  an  auxiliary  studio.  The  service  also  includes  mobile  TV  pickups,  which  relay  signals  from  a  remote  location  back  to  the  studio. 


 830  13  C.  F.  R.    121.201,  NAICS  code  517212  (formerly  213322). 
 831  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Employment  Size  of  Firms 
 Subject  to  Federal  Income  Tax:  1997,  Table  5,  NAICS  code  217212  (issues  Oct.  2000). 
 832  Id.  The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have 
 employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1,000  employees  or  more. 
175
 Federal  Communications  Commission  FCC  04-  168 
 178 
 interference. 
 32.  Regarding  our  decision  to  hold  Cellular  Radio  Telephone  and  ESMR  licensees  strictly  responsible  for  effectively  abating  actual  or  potential  unacceptable  interference  to  800  MHz  public  safety 


 systems  in  the  shortest  practicable  time,  we  do  not  anticipate  a  significant  burden  on  small  entities.  We  recognize  that  our  rule  does  not  exempt  small  entities  from  its  ambit.  However,  in  eliminating  the 
 interference  we  afford  licensees  the  flexibility  to  determine  which  system  ESMR,  Cellular  Telephone  or  CII/  public  safety  to  modify  and  what  particular  technical  parameters  to  change  on  these  systems;  and 
 impose  on  the  interfering  licensee(  s),  the  obligation  to  promptly  implement  such  changes.  Moreover,  we  note  that  small  entities  were  generally  not  among  the  interfering  parties  in  those  instances  of  interference 
 that  were  brought  to  our  attention  by  parties  in  this  proceeding.  We  considered  the  alternative  of  imposing  system-  wide,  stringent  technical  limitations  on  ESMR  and  Cellular  Telephone  licensees;  however,  we 
 found  selection  of  that  alternative  unwarranted  at  this  time.  Such  rules  would  have  imposed  a  burden  on  all  licensees,  including  small  entities,  which  were  not  among  those  causing  interference  to  800  MHz  public 
 safety  systems.  In  particular,  we  have  heeded  the  filings  of  rural  cellular  telephone  carriers  who  opposed  imposition  of  out-  of-  band  emission  standards  that  would  require  them  to  add  expensive  equipment  to  their 
 cell  sites. 
 33.  Regarding  our  adoption  of  rules  establishing  general  standards  and  procedures  to  govern  the  abatement  of  interference  to  public  safety  systems,  we  recognize  that  they  will  apply  equally  to  all 


 licensees,  including  small  entities,  which  cause  interference  to  800  MHz  public  safety  systems.  However,  we  do  not  anticipate  any  significant  adverse  impact  on  small  entities.  We  adopted  rules  that  were 
 intentionally  general  in  nature  to  confer  considerable  discretion  on  the  parties  involved  in  abating  instances  of  interference  to  public  safety  systems.  Moreover,  as  noted  above,  small  entities  were  generally  not 
 among  the  interfering  parties  in  those  instances  of  interference  that  were  brought  to  our  attention  by  parties  in  this  proceeding.  To  the  extent  that  they  can  demonstrate  that  they  are  not  contributing  to  the 
 interference  to  the  public  safety  systems,  they  will  not  be  responsible  for  abating  the  interference.  Therefore,  the  burden  should  be  minimal  for  those  small  entities  not  contributing  to  the  public  safety 
 interference  problem  in  the  800  MHz  band.  The  minimal  burden  imposed  by  these  rules  is  necessary  to  ensure  that  critical  public  safety  communications  may  be  accommodated  without  unacceptable 
 interference. 
 34.  In  this  respect,  we  are  mindful  that  a  number  of  the  public  safety  systems  that  are  experiencing  interference  are  small  entities.  We  believe  that  the  rules  will  impose  a  minimal  burden  on  small  public 


 safety  entities.  First,  because  we  will  only  require  them  to  furnish  certain  necessary  information  to  all  licensees  that  may  be  responsible  for  causing  the  interference.  Second,  because  this  provision  will  assure 
 them  of  timely  responses  to  and  analyses  of  their  interference  complaints.  Ultimately,  the  burden  of  supplying  this  information  will  be  significantly  less  than  that  associated  with  identifying  each  source  of 
 unacceptable  interference  and  contacting  such  sources  individually. 
 35.  Regarding  our  decision  to  require  notification  of  the  activation  of  new  or  modified  ESMR  or  cellular  radiotelephone  cells,  we  do  not  perceive  any  adverse  impact  on  small  entities.  Indeed,  the  prior 


 notification  requirement  will  enable  small  entities,  such  as  public  safety/  CII  licensees,  to  take  proactive,  anticipatory  steps  to  address  potential  interference.  Without  this  requirement,  public  safety/  CII  licensees 
 would  first  have  to  experience  interference  before  taking  recourse.  Similarly,  the  requirement  that  Cellular  Radiotelephone  and/  or  ESMR  licensees  promptly  initiate  corrective  actions  after  having  been  notified  of 
 interference  by  public  safety/  CII  licensees  minimizes  the  burden  on  small  entities  of  having  to  endure  prolonged  periods  of  interference.  Moreover,  as  noted  above,  small  entities  were  generally  not  among  the 
 interfering  parties  in  those  instances  of  interference  that  were  brought  to  our  attention  by  parties  in  this  proceeding. 


 36.  Regarding  our  decision  to  consolidate  the  800  MHz  and  900  MHz  Business  and 
178
 Federal  Communications  Commission  FCC  04-  168 
 179 
 Industrial/  Land  Transportation  Pools,  we  perceive  no  adverse  impact  on  small  entities.  This  decision  will  allow  any  eligible  Business  or  Industrial/  Land  Transportation  entity  to  be  licensed  on  the  consolidated 
 channels.  This  consolidation  will  improve  spectrum  efficiency,  promote  the  use  of  advanced  technologies  by  affording  licensees  more  contiguous  spectrum,  and  reduce  regulatory  burdens  on  all  licensees, 
 including  small  entities.  The  alternative  of  retaining  separate  pools  for  each  service  would  subject  licensees  to  the  unnecessary  burden  of  seeking  waivers  to  permit  intercategory  sharing,  which  may  have 
 been  comparatively  more  onerous  for  smaller  entities  to  prepare  and  file. 
 37.  Regarding  our  decision  to  allow  900  MHz  PLMR  licensees  to  initiate  CMRS  operations  on  their  currently  authorized  spectrum  or  to  assign  their  authorizations  to  others  for  CMRS  use,  we  perceive 


 no  adverse  impact  on  small  entities.  This  decision  will  improve  spectrum  efficiency,  promote  the  use  of  advanced  technologies  by  affording  licensees  access  to  addition  spectrum. 


 38.  Regarding  our  decision  to  allocate  the  1910-  1915  MHz/  1990-  1995  MHz  paired  spectrum  blocks  to  Nextel,  we  perceive  no  adverse  impact  on  small  entities.  Redesignating  this  spectrum  for 
 Nextels  use,  for  example,  will  facilitate  800  MHz  realignment,  by,  among  other  things,  introducing  an  additional  entity  that  can  participate  in  funding  the  relocation  costs  of  public  safety,  critical  infrastructure, 
 and  private  wireless  entities,  including  small  entities.  Alternatively,  maintaining  this  spectrum  without  applying  our  relocation  principles  will  expose  such  entities  to  continued  interference  without  sufficient 
 spectrum  and  funding  to  achieve  realignment.  Further,  we  are  satisfied  that  our  decision  will  not  adversely  impact  BAS,  UPCS,  MSS,  and  microwave  interests  on  account  of  expenditures  in  this  spectrum.  As  noted 
 in  the  Report  and  Order,  Nextel  has  agreed  to  reimburse  these  interests  or  pay  the  upfront  costs  to  relocate  incumbents  in  the  manner  provided  by  our  Rules,  and  we  will  hold  Nextel  to  that  agreement. 


 39.  Report  to  Congress:  The  Commission  will  send  a  copy  of  the  Report  and  Order,  Fifth  Report  and  Order,  Memorandum  Opinion  and  Order,  and  Order,  including  this  FRFA,  in  a  report  to  be 
 sent  to  Congress  and  the  General  Accounting  Office  pursuant  to  the  Congressional  Review  Act.  834  In  addition,  the  Commission  will  send  a  copy  of  the  Report  and  Order,  including  this  FRFA,  to  the  Chief 
 Counsel  for  Advocacy  of  the  SBA.  A  copy  of  the  Report  and  Order  and  FRFA  (or  summaries  thereof)  will  also  be  published  in  the  Federal  Register.  835 


 834  See  5  U.  S.  C.    801(  a)(  1)(  A). 
 835  See  5  U.  S.  C.    604(  b). 
179
 Federal  Communications  Commission  FCC  04-  168 
 180 
 APPENDIX  B:  PAPERWORK  REDUCTION  ANALYSIS 
 1.  This  document  contains  new  information  collection  requirements  subject  to  the  Paperwork  Reduction  Act  of  1995  (PRA),  Public  Law  104-  13.  It  will  be  submitted  to  the  Office  of  Management  and 


 Budget  (OMB)  for  review  under  Section  3507(  d)  of  the  PRA.  OMB,  the  general  public,  and  other  Federal  agencies  are  invited  to  comment  on  the  information  collection  requirements  contained  in  this  document.  In 
 addition,  we  note  that  pursuant  to  the  Small  Business  Paperwork  Relief  Act  of  2002,  Public  Law  107-  198,  see  44  U.  S.  C.  3506(  c)(  4),  we  previously  sought  specific  comment  on  how  the  Commission  might  further 
 reduce  the  information  collection  burden  for  small  business  concerns  with  fewer  than  25  employees.  This  Report  and  Order  contains  several  new  information  collections.  We  describe  our  new  information 
 collections  as  follows: 
 2.  In  this  Report  and  Order  we  require  that  any  Cellular  Radiotelephone  and/  or  ESMR  licensee  that  receives  an  interference  complaint  from  a  public  safety/  CII  licensee  shall  respond  to  such  complaint. 


 To  facilitate  receipt  of  complaints,  Cellular  Radiotelephone  licensees,  in  conjunction  with  Part  90  ESMR  licensees,  must  establish  an  electronic  means  of  receiving  the  initial  notification  and  shall  respond  to  such 
 notification  on  an  as  soon  as  possible  basis  and  no  later  than  24  hours  after  receipt  of  initial  notification.  The  purpose  of  this  notification  rule  is  to  provide  prompt  notification  to  ESMR  and  Cellular 
 Radiotelephone  licensees  that  their  transmissions  are  interfering  with  public  safety/  CII  transmissions,  some  of  which  are  crucial  to  protection  of  life  and  property.  These  requirements  constitute  new  "collections  of 
 information"  within  the  meaning  of  the  Paperwork  Reduction  Act  of  1995,  44  U.  S.  C.    3501-  3520.  Implementation  of  this  requirement  is  subject  to  approval  by  the  Office  of  Management  and  Budget  as 
 prescribed  by  the  Paperwork  Reduction  Act. 
 3.  Additionally,  the  rules  we  adopt  today  provide  that  upon  request  by  a  public  safety/  CII  licensee,  Cellular  Radiotelephone  and/  or  ESMR  licensees  must  provide  to  the  public  safety/  CII  licensee 


 the  following  information  before  any  new  cell  sites  are  constructed  or  any  existing  cells  are  modified:  (1)  location;  (2)  effective  radiated  power;  (3)  antenna  height;  (4)  channels  in  use.  The  purpose  of  this  rule  is 
 for  informational  purposes  only  and  does  not  entitle  the  public  safety/  CII  licensee  to  approve  or  disapprove  the  activation  of  a  proposed  cell  site  or  to  demand  changes  to  the  proposed  technical  parameters.  The 
 principal  purpose  of  this  rule  is  to  forestall  activation  of  facilities  that  have  the  potential  to  cause  interference  to  communications,  some  of  which  may  be  crucial  to  the  safety  of  life  and  property.  These 
 requirements  constitute  new  "collections  of  information"  within  the  meaning  of  the  Paperwork  Reduction  Act  of  1995,  44  U.  S.  C.    3501-  3520.  Implementation  of  this  requirement  is  subject  to  approval  by  the 
 Office  of  Management  and  Budget  as  prescribed  by  the  Paperwork  Reduction  Act. 
 4.  In  this  present  document,  we  have  assessed  the  effects  of  the  above-  mentioned  information  collection  requirements  on  small  business  concerns,  and  find  that  these  information  collection 


 requirements  will  not  adversely  affect  businesses  with  fewer  than  twenty-  five  employees. 
180
 Federal  Communications  Commission  FCC  04-  168 
 181 
 APPENDIX  C:  FINAL  RULES 
 PART  15    RADIO  FREQUENCY  DEVICES 
 1.  The  authority  citation  for  Part  15  continues  to  read  as  follows: 
 Authority:  47  U.  S.  C.  154,  302,  303,  304,  307,  336,  and  544A. 
 2.  Section  15.301  is  amended  as  follows: 
   15.301  Scope. 
 This  subpart  sets  out  the  regulations  for  unlicensed  personal  communications  services  (PCS)  devices  operating  in  the  1915-  1930  MHz  and  2390-  2400  MHz  frequency  bands. 


 3.  Paragraph  (g)  of  Section  15.303  is  amended  as  follows: 
   15.303  Definitions. 
 *  *  *  *  *  (g)  Personal  Communications  Services  (PCS)  Devices  [Unlicensed].  Intentional  radiators 


 operating  in  the  frequency  bands  1915-  1930  MHz  and  2390-  2400  MHz  that  provide  a  wide  array  of  mobile  and  ancillary  fixed  communication  services  to  individuals  and  businesses. 


 *  *  *  *  * 
 4.  Section  15.311  is  amended  as  follows: 
   15.311  Labeling  requirements. 
 In  addition  to  the  labeling  requirements  of  15.19(  a)(  3),  all  devices  operating  in  the  frequency  band  1915-  1930  MHz  authorized  under  this  subpart  must  bear  a  prominently  located  label  with  the 


 following  statement:  *  *  * 
 5.  Paragraph  (a)  of  Section  15.319  is  amended  as  follows: 
   15.319  General  technical  requirements. 
 (a)  The  1915-  1920  MHz  and  2390-  2400  MHz  bands  are  limited  to  use  by  asynchronous  devices  under  the  requirements  of    15.321.  *  *  * 


 *  *  *  *  * 
 6.  Paragraphs  (a)  and  (b)  of  Section  15.321  is  amended  as  follows: 
   15.321  Specific  requirements  for  asynchronous  devices  operating  in  the  1915-  1920  MHz  and  2390-  2400  MHz  bands. 


 (a)  Operation  shall  be  contained  within  either  or  both  of  the  1915-  1920  MHz  and  2390-  2400  MHz  bands.  *  *  * 
 (b)  All  systems  of  less  than  2.5  MHz  emission  bandwidth  shall  start  searching  for  an  available  spectrum  window  within  3  MHz  of  the  band  edge  at  1915,  1920,  2390,  or  2400  MHz  while  systems  of 
 more  than  2.5  MHz  emission  bandwidth  will  first  occupy  the  center  half  of  the  band.  *  *  * 
181
 Federal  Communications  Commission  FCC  04-  168 
 182 
 *  *  *  *  * 
 Part  22  of  title  47  of  the  Code  of  Federal  Regulations  is  revised  to  read  as  follows: 
 PART  22    PUBLIC  MOBILE  SERVICES 
 7.  The  authority  citation  for  Part  22  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  222,  303,  309  and  332. 
 8.  The  following  sections  are  added  immediately  after  the  text  of  Section  22.969: 
   22.970  Unacceptable  interference  to  Part  90  non-  cellular  800  MHz  licensees  from  cellular  radiotelephone  or  Part  90  ESMR  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  will  be  deemed  to  occur  when  the  below  conditions  are 
 met: 
 (1)  A  transceiver  at  a  site  at  which  interference  is  encountered: 
 (i)  Is  in  good  repair  and  operating  condition,  and  is  receiving: 
 (A)  A  median  desired  signal  of  -104  dBm  or  higher,  as  measured  at  the  R.  F.  input  of  the  receiver  of  a  mobile  unit;  or 


 (B)  A  median  desired  signal  of  -101  dBm  or  higher,  as  measured  at  the  R.  F.  input  of  the  receiver  of  a  portable  i.  e.  hand-  held  unit;  and,  either 
 (ii)  Is  a  voice  transceiver: 
 (A)  with  manufacturer  published  performance  specifications  for  the  receiver  section  of  the  transceiver  equal  to,  or  exceeding,  the  minimum  standards  set  out  in  Section  (b),  below; 


 and; 
 (B)  Receiving  an  undesired  signal  or  signals  which  cause  the  measured  Carrier  to  Noise  plus  Interference  (C/(  I+  N))  ratio  of  the  receiver  section  of  said  transceiver  to  be  less  than  20  dB, 


 or, 
 (iii)  Is  a  non-  voice  transceiver  receiving  an  undesired  signal  or  signals  which  cause  the  measured  bit  error  rate  (BER)  (or  some  comparable  specification)  of  the  receiver  section  of  said  transceiver  to  be 


 more  than  the  value  reasonably  designated  by  the  manufacturer. 
 (2)  Provided,  however,  that  if  the  receiver  section  of  the  mobile  or  portable  voice  transceiver  does  not  conform  to  the  standards  set  out  in  paragraph  (b),  below,  then  that  transceiver  shall  be  deemed 


 subject  to  unacceptable  interference  only  at  sites  where  the  median  desired  signal  satisfies  the  applicable  threshold  measured  signal  power  in  paragraphs  (a)(  1)(  i)  after  an  upward  adjustment  to 
 account  for  the  difference  in  receiver  section  performance.  The  upward  adjustment  shall  be  equal  to  the  increase  in  the  desired  signal  required  to  restore  the  receiver  section  of  the  subject  transceiver  to 
 the  20  dB  C/(  I+  N)  ratio  of  paragraph  (a)(  1)(  iv)(  a)  above.  The  adjusted  threshold  levels  shall  then  define  the  minimum  measured  signal  power(  s)  in  lieu  of  paragraphs  (a)  (1)  (i)  at  which  the  licensee 
 using  such  non-  compliant  transceiver  is  entitled  to  interference  protection. 
 (b)  Minimum  Receiver  Requirements.  Voice  transceivers  capable  of  operating  in  the  806-  824 
182
 Federal  Communications  Commission  FCC  04-  168 
 183 
 MHz  portion  of  the  800  MHz  band  shall  have  the  following  minimum  performance  specifications  in  order  for  the  system  in  which  such  transceivers  are  used  to  claim  entitlement  to  full  protection  against 
 unacceptable  interference.  (See  paragraph  (a)  (2)  above.) 
 (1)  Voice  units  intended  for  mobile  use:  75  dB  intermodulation  rejection  ratio;  75  dB  adjacent  channel  rejection  ratio;  -116  dBm  reference  sensitivity. 


 (2)  Voice  units  intended  for  portable  use:  70  dB  intermodulation  rejection  ratio;  70  dB  adjacent  channel  rejection  ratio;  -116  dBm  reference  sensitivity. 


   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  of  this  chapter.  This 
 strict  responsibility  obligation  applies  to  all  forms  of  interference,  including  out-  of-  band  emissions  and  intermodulation. 


 (b)  Joint  and  Several  Responsibility.  If  two  or  more  licensees  knowingly  or  unknowingly,  directly  or  indirectly,  cause  or  contribute  to  causing  unacceptable  interference  to  a  non-  cellular  Part  90 
 licensee  in  the  800  MHz  band,  as  defined  in    22.970  of  this  chapter,  such  licensees  shall  be  jointly  and  severally  responsible  for  abating  interference,  with  full  cooperation  and  utmost  diligence,  in  the 
 shortest  practicable  time. 
 (1)  This  joint  and  several  responsibility  rule  requires  interfering  licensees  to  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  joint  and  several  responsibility  rule  applies  to  all  forms  of  interference,  including  out-  of-  band  emissions  and 
 intermodulation. 
 (2)  Any  licensee  that  can  show  that  its  signal  does  not  directly  or  indirectly,  cause  or  contribute  to  causing  unacceptable  interference  to  a  non-  cellular  Part  90  licensee  in  the  800  MHz  band,  as  defined  in 


 this  chapter,  shall  not  be  held  responsible  for  resolving  unacceptable  interference.  Notwithstanding,  any  licensee  that  receives  an  interference  complaint  from  a  public  safety/  CII  licensee  shall  respond  to 
 such  complaint  consistent  with  the  interference  resolution  procedures  set  forth  in  this  chapter. 
   22.972  Interference  resolution  procedures. 
 (a)  Initial  Notification.  (1)  Cellular  Radiotelephone  licensees  may  receive  initial  notification  of  interference  from  non-  cellular  Part  90  licensees  in  the  800  MHz  band  pursuant  to    90.674(  a)  of  this 


 chapter. 
 (2)  Cellular  Radiotelephone  licensees,  in  conjunction  with  Part  90  ESMR  licensees,  shall  establish  an  electronic  means  of  receiving  the  initial  notification  described  in    90.674(  a)  of  this  chapter.  The 


 electronic  system  must  be  designed  so  that  all  appropriate  Cellular  Radiotelephone  licensees  and  Part  90  ESMR  licensees  can  be  contacted  about  the  interference  incident  with  a  single  notification.  The 
 electronic  system  for  receipt  of  initial  notification  of  interference  complaints  must  be  operating  no  later  than  [Thirty  days  from  effective  date  of  Report  and  Order]. 
183
 Federal  Communications  Commission  FCC  04-  168 
 184 
 (3)  Cellular  Radiotelephone  licensees  must  respond  to  the  initial  notification  described  in    90.674(  a)  of  this  chapter,  as  soon  as  possible  and  no  later  than  24  hours  after  receipt  of  notification 
 from  a  Part  90  public  safety/  CII  licensee.  This  response  time  may  be  extended  to  48  hours  after  receipt  from  other  Part  90  non-  cellular  licensees  provided  affected  communications  on  these  systems 
 are  not  safety  related. 
 (b)  Interference  Analysis.  Cellular  Radiotelephone  licensees    who  receive  an  initial  notification  described  in    90.674(  a)  of  this  chapter    shall  perform  a  timely  analysis  of  the  interference  to  identify 


 the  possible  source.  Immediate  on-  site  visits  may  be  conducted  when  necessary  to  complete  timely  analysis.  Interference  analysis  must  be  completed  and  corrective  action  initiated  within  48  hours  of 
 the  initial  complaint  from  a  Part  90  public  safety/  CII  licensee.  This  response  time  may  be  extended  to  96  hours  after  the  initial  complaint  from  other  Part  90  non-  cellular  licensees  provided  affected 
 communications  on  these  systems  are  not  safety  related.  Corrective  action  may  be  delayed  if  the  affected  licensee  agrees  in  writing  (which  may  be,  but  is  not  required  to  be,  recorded  via  e-  mail  or 
 other  electronic  means)  to  a  longer  period. 
 (c)  Mitigation  Steps.  (1)  All  Cellular  Radiotelephone  and  Part  90  ESMR  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  ESMR  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  ESMR  licensees,  whose  affirmative  measures  may  include,  but  not  be  limited  to,  the  following  techniques: 


 (i)  increasing  the  desired  power  of  the  public  safety/  CII  signal; 
 (ii)  decreasing  the  power  of  the  Part  90  ESMR  and/  or  Cellular  Radiotelephone  system  signal; 


 (iii)  modifying  the  Part  90  ESMR  and/  or  Cellular  Radiotelephone  system  antenna  height; 
 (iv)  modifying  the  Part  90  ESMR  and/  or  Cellular  Radiotelephone  system  antenna  characteristics; 


 (v)  incorporating  filters  into  Part  90  ESMR  and/  or  Cellular  Radiotelephone  transmission  equipment; 
 (vi)  permanently  changing  Part  90  ESMR  and/  or  Cellular  Radiotelephone  frequencies;  and 
 (vii)  supplying  interference-  resistant  receivers  to  the  affected  public  safety/  CII  licensee(  s).  If  this  technique  is  used,  in  all  circumstances,  Cellular  Radiotelephone  and/  or  Part  90  ESMR 
 licensees  shall  be  responsible  for  all  costs  thereof. 
 (2)  Whenever  short-  term  interference  abatement  measures  prove  inadequate,  the  affected  Part  90  non-  cellular  licensee  shall,  consistent  with  but  not  compromising  safety,  make  all  necessary 
 concessions  to  accepting  interference  until  a  longer-  term  remedy  can  be  implemented. 
 (3)  Discontinuing  operations  when  clear  imminent  danger  exists.  When  a  Part  90  public  safety  licensee  determines  that  a  continuing  presence  of  interference  constitutes  a  clear  and  imminent  danger 
184
 Federal  Communications  Commission  FCC  04-  168 
 185 
 to  life  or  property,  the  licensee  causing  the  interference  must  discontinue  the  associated  operation  immediately,  until  a  remedy  can  be  identified  and  applied.  The  determination  that  a  continuing 
 presence  exists  that  constitutes  a  clear  and  imminent  danger  to  life  or  property,  must  be  made  by  written  statement  that: 


 (i)  is  in  the  form  of  a  declaration,  notarized  affidavit,  or  statement  under  penalty  or  perjury,  from  an  officer  or  executive  of  the  affected  public  safety  licensee; 


 (ii)  thoroughly  describes  the  basis  of  the  claim  of  clear  and  imminent  danger; 
 (iii)  was  formulated  on  the  basis  of  either  personal  knowledge  or  belief  after  due  diligence; 
 (iv)  is  not  proffered  by  a  contractor  or  other  third  party;  and 
 (v)  has  been  approved  by  the  Chief  of  the  Wireless  Telecommunication  Bureau  or  other  designated  Commission  official.  Prior  to  the  authorized  official  making  a  determination  that  a 
 clear  and  imminent  danger  exists,  the  associated  written  statement  must  be  served  by  hand-delivery  or  receipted  fax  on  the  applicable  offending  licensee,  with  a  copy  transmitted  by  the 
 fastest  available  means  to  the  Washington,  D.  C.  office  of  the  Commissions  Wireless  Telecommunications  Bureau. 


   22.973  Information  exchange. 
 (a)  Prior  Notification.  Public  safety/  CII  licensees  may  notify  a  Part  90  ESMR  or  cellular  radiotelephone  licensee  that  they  wish  to  receive  prior  notification  of  the  activation  or  modification  of 


 Part  90  ESMR  or  cellular  radiotelephone  cell  sites  in  their  area.  Thereafter,  the  Part  90  ESMR  or  cellular  radiotelephone  licensee  must  provide  the  following  information  to  the  public  safety/  CII 
 licensee  at  least  10  business  days  before  a  new  cell  site  is  activated  or  an  existing  cell  site  is  modified: 
 (1)  location; 


 (2)  effective  radiated  power; 
 (3)  antenna  height; 
 (4)  channels  available  for  use. 
 (b)  Purpose  of  Prior  Notification.  The  prior  coordination  of  cell  sites  is  for  informational  purposes  only:  public  safety/  CII  licensees  are  not  afforded  the  right  to  accept  or  reject  the  activation 
 of  a  proposed  cell  or  to  unilaterally  require  changes  in  its  operating  parameters.  The  principal  purposes  of  notification  are  to:  (a)  allow  a  public  safety  licensee  to  advise  the  Part  90  ESMR  or 
 Cellular  Radiotelephone  licensee  whether  it  believes  a  proposed  cell  will  generate  unacceptable  interference;  (b)  permit  Cellular  Radiotelephone  or  Part  90  ESMR  licensees  to  make  voluntary 
 changes  in  cell  parameters  when  a  public  safety  licensee  alerts  them  to  possible  interference;  and  (c)  rapidly  identify  the  source  if  interference  is  encountered  when  the  cell  is  activated. 


 Part  24  of  title  47  of  the  Code  of  Federal  Regulation,  is  amended  to  read  as  follows: 
 PART  24    PERSONAL  COMMUNICATIONS  SERVICES 


 9.  The  authority  citation  for  Part  24  continues  to  read  as  follows: 
185
 Federal  Communications  Commission  FCC  04-  168 
 186 
 AUTHORITY:  Sections  47  U.  S.  C.  154,  301,  302,  303,  309  and  332. 
 10.  Paragraph  (b)  of  Section  24.203  is  amended  as  follows  and  an  new  paragraph  (d)  is  added: 
   24.203  Construction  requirements. 
 *  *  *  *  * 
 (b)  Licensees  of  10  MHz  blocks  except  for  the  1910-  1915  MHz  and  1990-  1995  MHz,  including  10  MHz  C  block  licenses  reconfigured  pursuant  to  Amendment  of  the  Commission's  Rules  Regarding 


 Installment  Payment  Financing  for  Personal  Communications  Services  (PCS)  Licensees,  WT  Docket  No.  97  82,  Sixth  Report  and  Order,  FCC  00  313,  and  15  MHz  blocks  resulting  from  the  disaggregation  option 
 as  provided  in  the  Commission's  Rules  Regarding  Installment  payment  Financing  for  Personal  Communications  Services  (PCS)  Licensees,  Second  Report  and  Order  and  Further  Notice  of  Proposed 
 Rule  Making,  WT  Docket  97  82,  12  FCC  Rcd  16436  (1997),  as  modified  by  Order  on  Reconsideration  of  the  Second  Report  and  Order,  WT  Docket  97  82,  13  FCC  Rcd  8345  (1998),  must  serve  with  a  signal  level 
 sufficient  to  provide  adequate  service  to  at  least  one-  quarter  of  the  population  in  their  licensed  area  within  five  years  of  being  licensed,  or  make  a  showing  of  substantial  service  in  their  licensed  area  within  five 
 years  of  being  licensed.  Population  is  defined  as  the  1990  population  census.  Licensees  may  elect  to  use  the  2000  population  census  to  determine  the  five-  year  construction  requirement.  Failure  by  any  licensee  to 
 meet  these  requirements  will  result  in  forfeiture  of  the  license  and  the  licensee  will  be  ineligible  to  regain  it. 


 *  *  *  *  * 
 (d)  Licensees  in  the  paired  1910-  1915  MHz  and  1990-  1995  MHz  bands  must  make  a  showing  of  substantial  service  in  their  license  area  within  ten  years  of  the  date  of  initial  issuance  or  renewal. 


 Substantial  service  is  defined  as  service  which  is  sound,  favorable,  and  substantially  above  a  level  of  mediocre  service  which  just  might  minimally  warrant  renewal.  Failure  by  any  licensee  to  meet  this 
 requirement  will  result  in  forfeiture  of  the  license  and  the  licensee  will  be  ineligible  to  regain  it. 
 *  *  *  *  * 
 11.  A  new  paragraph  (c)  is  added  to  Section  24.229  as  follows: 
   24.229  Frequencies. 
 *  *  *  *  * 
 (c)  The  paired  frequency  blocks  1910-  1915  MHz  and  1990-  1995  MHz  are  available  for  assignment  in  the  175  Economic  Areas  defined  in    90.7  of  this  chapter.  The  1910-  1915  MHz  block 


 shall  be  used  for  mobile/  portable  station  transmissions  while  the  1990-  1995  MHz  block  shall  be  used  for  base  station  transmissions. 


 *  *  *  *  * 
 12.  A  new  paragraph  (c)  is  added  to  Section  24.247  as  follows: 
   24.247  Triggering  a  reimbursement  obligation. 
 *  *  *  *  * 
 (c)  Any  new  entrants  granted  licenses  for  the  1910-  1915  MHz  band  must  reimburse  UTAM  a  pro  rata  share  of  its  total  expenses  incurred  by  UTAM  as  of  the  date  that  the  new  entrants  gain  access  to  the 
186
 Federal  Communications  Commission  FCC  04-  168 
 187 
 band.  The  percent  required  by  new  entrants  to  pay  shall  be  calculated  based  upon  the  amount  of  spectrum  granted  to  the  new  entrant  as  compared  to  the  total  amount  of  spectrum  UTAM  is  responsible  for  clearing 
 of  incumbents  (20  megahertz),  and  must  be  paid  before  a  new  entrant  begins  operations  in  the  band.  For  example,  if  a  new  entrant  obtains  a  license  for  5  megahertz  of  spectrum  in  this  band,  it  is  required  to 
 reimburse  UTAM  one-  quarter  of  UTAMs  total  costs  to  date  on  a  pro  rata  shared  basis.  New  entrants  will  be  responsible  for  the  actual  costs  associated  with  future  relocation  activities  in  their  licensed  spectrum, 
 but  will  be  entitled  to  seek  reimbursement  from  UTAM  for  the  proportion  of  those  band  clearing  costs  that  benefit  users  of  the  1915-  1930  MHz  band. 


 13.  For  the  reasons  discussed  above,  the  Federal  Communications  Commission  amends  47  CFR  parts  74  and  78  as  follows: 


 PART  74    EXPERIMENTAL  RADIO,  AUXILIARY,  SPECIAL  BROADCASTING  AND  OTHER  PROGRAM  DISTRIBUTIONAL  SERVICES 
 14.  The  authority  citation  for  Part  74  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  303,  307,  336(  f),  336(  h)  and  554. 
 15.  Part  74.602(  a)(  3)(  iii)  is  amended  to  read  as  follows: 


   74.602  Frequency  assignments. 
 (a)  *  *  * 
 (3)  *  *  * 
 (iii)  Broadcast  Auxiliary  Service,  Cable  Television  Remote  Pickup  Service,  and  Local  Television  Transmission  Service  licensees  will  be  required  to  use  the  Band  A  channel  plan  in 
 paragraph  (a)(  3)(  i)  of  this  section  after  completion  of  relocation  by  an  Emerging  Technologies  licensee  in  accordance  with    74.690  or    78.40  of  this  chapter.  Licensees  declining  relocation 
 may  continue  to  use  their  existing  channel  plan  but  must  discontinue  use  of  the  1990-  2025  MHz  band  when  they  indicate  to  an  Emerging  Technologies  licensee,  acting  pursuant  to    74.690  or   
 78.40  of  this  chapter,  that  they  decline  to  be  relocated. 
 16.  Section  74.690  is  amended  to  amend  sections  (a),  (b),  (c)(  2),  (c)(  3),  (d)  and  (e),  and  to  remove  and  reserve  section  (e)(  1)(  ii)  to  read  as  follows: 


   74.690  Transition  of  the  1990-  2025  MHz  band  from  the  Broadcast  Auxiliary  Service  to  emerging  technologies. 


 (a)  New  Entrants,  collectively  defined  as  those  licensees  proposing  to  use  emerging  technologies  to  implement  Mobile  Satellite  Services  in  the  2000-  2020  MHz  band  (MSS  licensees),  and  those  licensees 
 authorized  after  July  1,  2004  to  implement  new  fixed  and  mobile  services  in  the  1990-  1995  MHz  band,  may  negotiate  with  Broadcast  Auxiliary  Service  licensees  operating  on  a  primary  basis  and  fixed  service 
 licensees  operating  on  a  primary  basis  in  the  1990-  2025  MHz  band  (Existing  Licensees)  for  the  purpose  of  agreeing  to  terms  under  which  the  Existing  Licensees  would  relocate  their  operations  to  the  2025-  2110 
 MHz  band,  to  other  authorized  bands,  or  to  other  media;  or,  alternatively,  would  discontinue  use  of  the  1990-  2025  MHz  band. 
187
 Federal  Communications  Commission  FCC  04-  168 
 188 
 (b)  An  Existing  Licensee  in  the  1990-  2025  MHz  band  allocated  for  licensed  emerging  technology  services  will  maintain  primary  status  in  the  band  until  the  Existing  Licensees  operations  are  relocated  by  a 
 New  Entrant,  are  discontinued  under  the  terms  of  paragraph  (a)  of  this  section,  or  become  secondary  under  the  terms  of  paragraph  (e)(  6)  of  this  section  or  the  Existing  Licensee  indicates  to  a  New  Entrant  that  it 
 declines  to  be  relocated. 
 (c)  *  *  * 
 (2)  The  New  Entrant  completes  all  activities  necessary  for  implementing  the  replacement  facilities,  including  engineering  and  cost  analysis  of  the  relocation  procedure  and,  if  radio  facilities  are  used, 


 identifying  and  obtaining,  on  the  incumbents  behalf,  new  microwave  or  Local  Television  Transmission  frequencies  and  frequency  coordination. 


 (3)  The  New  Entrant  builds  the  replacement  system  and  tests  it  for  comparability  with  the  existing  system. 
 (d)  The  Existing  Licensee  is  not  required  to  relocate  until  the  alternative  facilities  are  available  to  it  for  a  reasonable  time  to  make  adjustments,  determine  comparability,  and  ensure  a  seamless  handoff.  If, 
 within  one  year  after  the  relocation  to  new  facilities  the  Existing  Licensee  demonstrates  that  the  new  facilities  are  not  comparable  to  the  former  facilities,  the  New  Entrant  must  remedy  the  defects. 


 (e)  Subject  to  the  terms  of  this  paragraph  (e),  the  relocation  of  Existing  Licensees  will  be  carried  out  by  MSS  licensees  in  the  following  manner: 


 (1)  *  *  * 
 (ii)  [removed  and  reserved] 
 *  *  *  *  * 
 17.  PART  78    CABLE  TELEVISION  RELAY  SERVICE 
 1.  The  authority  citation  for  Part  78  continues  to  read  as  follows: 
 AUTHORITY:  Secs.  2,  3,  4,  301,  303,  307,  308,  309,  48  Stat.,  as  amended,  1064,  1065,  1066,  1081,  1082,  1083,  1084,  1085;  47  U.  S.  C.  152,  153,  154,  301,  303,  307,  308,  309. 


 2.  Section  78.40  is  amended  to  amend  sections  (a),  (b),  (c)(  2),  (c)(  3),  (e)  and  (f),  and  to  remove  and  reserve  section  (f)(  1)(  ii)  to  read  as  follows: 
   78.40  Transition  of  the  1990-  2025  MHz  band  from  the  Cable  Television  Relay  Service  to  emerging  technologies. 
 (a)  New  Entrants,  collectively  defined  as  those  licensees  proposing  to  use  emerging  technologies  to  implement  Mobile  Satellite  Services  in  the  2000-  2020  MHz  band  (MSS  licensees)  and  those  licensees 
 authorized  after  July  1,  2004  to  implement  new  fixed  and  mobile  services  in  the  1990-  1995  MHz  band,  may  negotiate  with  Cable  Television  Relay  Service  licensees  operating  on  a  primary  basis  and  fixed 
 service  licensees  operating  on  a  primary  basis  in  the  1990-  2025  MHz  band  (Existing  Licensees)  for  the  purpose  of  agreeing  to  terms  under  which  the  Existing  Licensees  would  relocate  their  operations  to  the 
 2025-  2110  MHz  band,  to  other  authorized  bands,  or  to  other  media;  or,  alternatively,  would  accept  a  sharing  arrangement  with  the  New  Entrants  that  may  result  in  an  otherwise  impermissible  level  of 
188
 Federal  Communications  Commission  FCC  04-  168 
 189 
 interference  to  the  Existing  Licensees  operations. 
 (b)  Existing  Licensees  in  the  1990-  2025  MHz  band  allocated  for  licensed  emerging  technology  services  will  maintain  primary  status  in  the  band  until  a  New  Entrant  completes  relocation  of  the  Existing 
 Licensees  operations  or  the  Existing  Licensee  indicates  to  a  New  Entrant  that  it  declines  to  be  relocated. 
 (c)  *  *  * 
 (2)  The  New  Entrant  completes  all  activities  necessary  for  implementing  the  replacement  facilities,  including  engineering  and  cost  analysis  of  the  relocation  procedure  and,  if  radio  facilities  are  used, 
 identifying  and  obtaining,  on  the  incumbents  behalf,  new  microwave  or  Cable  Television  Relay  Service  frequencies  and  frequency  coordination. 


 (3)  The  New  Entrant  builds  the  replacement  system  and  tests  it  for  comparability  with  the  existing  system. 
 (d)  *  *  * 
 (e)  If,  within  one  year  after  the  relocation  to  new  facilities  the  Existing  Licensee  demonstrates  that  the  new  facilities  are  not  comparable  to  the  former  facilities,  the  New  Entrant  must  remedy  the  defect. 


 (f)  Subject  to  the  terms  of  this  paragraph  (e),  the  relocation  of  Existing  Licensees  will  be  carried  out  by  MSS  licensees  in  the  following  manner: 
 (1)  *  *  * 
 (ii)  [removed  and  reserved] 


 *  *  *  *  * 
 Part  90  of  title  47  of  the  Code  of  Federal  Regulations,  is  amended  to  read  as  follows: 
 PART  90    PRIVATE  LAND  MOBILE  RADIO  SERVICES 


 18.  The  authority  citation  for  Part  90  continues  to  read  as  follows: 
 AUTHORITY:  Sections  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). 


 19.  The  following  definitions  are  added  to  the  text  of  Section  90.7. 
   90.7  Definitions. 
 800  MHz  Cellular  System.  In  the  806-  817  MHz/  851-  862  MHz  band,  a  cellular  system  is  defined  as  high-  density  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. 
189
 Federal  Communications  Commission  FCC  04-  168 
 190 
 *  *  *  *  * 
 Critical  Infrastructure  Industry  (CII).  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. 
 *  *  *  *  * 
 Enhanced  Specialized  Mobile  Radio  System  (ESMR).  A  specialized  mobile  radio  (SMR)  system  operating  in  the  800  MHz  band  which  employs  an  800  MHz  cellular  system  as  defined  in  this  section. 


 *  *  *  *  * 
 20.  The  text  in  Section  90.16  is  revised  to  reflect  the  location  of  the  NPSPAC  spectrum  after  band  reconfiguration. 


   90.16.  Public  Safety  National  Plan. 
 The  Commission  has  established  a  National  Plan  which  specifies  special  policies  and  procedures  governing  the  Public  Safety  Pool  (formally  Public  Safety  Radio  Services  and  the  Special  Emergency 


 Radio  Service).  The  National  Plan  is  contained  in  the  Report  and  Order  in  General  Docket  No.  87  112.  The  principal  spectrum  resource  for  the  National  Plan  is  the  806  809  MHz  and  the  851  854 
 MHz  bands  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  (  border  regions).  In  the  border  regions,  the  principal  spectrum 
 for  the  National  Plan  may  be  different.  The  National  plan  establishes  planning  regions  covering  all  parts  of  the  United  States,  Puerto  Rico,  and  the  U.  S.  Virgin  Islands.  No  assignments  will  be  made  in 
 the  spectrum  designated  for  the  National  Plan  until  a  regional  plan  for  the  area  has  been  accepted  by  the  Commission. 


 21.  Section  90.20  is  amended  by  revising  the  table  in  paragraph  (c)(  3)  and  by  revising  the  text  in  paragraph  (d)(  69). 
   90.20  Public  Safety  Pool. 
 *  *  *  *  * 
 (c)  *  *  * 
 (3)  *  *  * 
 PUBLIC  SAFETY  POOL  FREQUENCY  TABLE 
 Frequency  or  band  Class  of  station(  s)  Limitations  Coordinator 
 *  *  *  *  *  806  to  817 
 851  to  862  *  *  *  *  * 
 *  *  *  *  *  .  do 
 Base  or  mobile  *  *  *  *  * 
 *  *  *  *  *  69. 
 69.  *  *  *  *  * 
 *  *  *  *  * 


 *  *  *  *  * 
190
 Federal  Communications  Commission  FCC  04-  168 
 191 
 (d)  *  *  *  *  * 
 (69)  Subpart  S  of  this  part  contains  rules  for  assignment  of  frequencies  in  the  806  816  MHz  and  851  861  MHz  bands. 


 22.  Section  90.35  is  amended  by  revising  the  table  in  paragraph  (b)(  3)  and  by  revising  the  text  in  paragraph  (c)(  71). 
   90.35  Industrial/  Business  Pool. 
 *  *  *  *  * 
 (b)  *  *  * 
 (3)  *  *  * 
 INDUSTRIAL/  BUSINESS  POOL  FREQUENCY  TABLE 
 Frequency  or  band  Class  of  station(  s)  Limitations  Coordinator 
 *  *  *  *  *  809  to  824 
 854  to  869  *  *  *  *  * 
 *  *  *  *  *  Mobile 
 Base  or  mobile  *  *  *  *  * 
 *  *  *  *  *  71. 
 71.  *  *  *  *  * 
 *  *  *  *  * 


 *  *  *  *  * 


 (c)  *  *  * 
 (71)  Subpart  S  of  this  part  contains  rules  for  assignment  of  frequencies  in  the  809  824/  854  869  and  896  901/  935  940  MHz  bands. 


   90.209  Bandwidth  limitations. 
 *  *  *  *  * 


 (b)  *  *  * 
 (5)  *  *  * 
 STANDARD  CHANNEL  SPACING/  BANDWIDTH  Frequency  band  (MHz)  Channel  spacing  (kHz)  Authorized  bandwidth  (kHz) 
 *****  806-  809/  851-  854   
 809-  824/  854-  869.  ***** 
 *****  12.5 
 25  ***** 
 *****  20 
 20  ***** 


 *  *  *  *  * 
 23.  The  table  in  Section  90.210  is  amended  to  reflect  the  800  MHz  band  after  band 
191
 Federal  Communications  Commission  FCC  04-  168 
 192 
 reconfiguration. 
   90.210  Emission  masks. 
 *  *  *  *  * 
 APPLICABLE  EMISSION  MASKS 
 Frequency  band  (MHz)  Mask  for  equipment  with  Audio  low  pass  filter  Mask  for  equipment  without  audio  low  pass  filter 


 *****  806-  809/  851-  854   
 809-  824/  854-  869  3    ***** 
 *****  B 
 B  ***** 
 *****  H 
 G  ***** 
 1  Equipment  using  single  sideband  J3E  emission  must  the  requirements  of  Emission  Mask  A. 
 Equipment  using  other  emissions  must  meet  the  requirements  of  Emission  Mask  B  or  C,  as  applicable. 
 2  Equipment  designed  to  operate  with  a  25  kHz  channel  bandwidth  must  meet  the  requirements  of 
 Emission  Mask  B  or  C,  as  applicable.  Equipment  designed  to  operate  with  a  12.5  kHz  channel  bandwidth  must  meet  the  requirements  of  Emission  Mask  D,  and  equipment  designed  to  operate  with  a 


 6.25  kHz  channel  bandwidth  Must  meet  the  requirements  of  Emission  Mask  E. 
 3  ESMR  systems  shall  comply  with  the  emission  mask  provisions  of  90.691. 


 *  *  *  *  * 
 24.  The  table  in  Section  90.213  is  updated  to  reflect  the  800  MHz  band  after  band  reconfiguration. 
   90.213  Frequency  stability. 
 (a)  *  *  * 


 MINIMUM  FREQUENCY  STABILITY  [Parts  per  million  (ppm)] 
 Mobile  stations  Frequency  range  (MHz)  Fixed  and  base  stations  Over  2  watts  output 
 power  2  watts  or  less  output  power  ***** 
 806-  809    809-  824. 
 851-  854.  854-  869. 
 ***** 


 *****  14  1.0 
 14  1.5 
 1.0  1.5 


 ***** 


 *****  1.5 
 2.5  1.5 
 2.5  ***** 


 *****  1.5 
 2.5  1.5 
 2.5  ***** 


 *  *  *  *  * 
 25.  Paragraph  (e)  of  Section  90.607  is  amended  to  exempt  applicants  for  ESMR  frequencies  from  frequency  coordination  requirements: 


   90.607  Supplemental  information  to  be  furnished  by  applicants  for  facilities  under  this  subpart. 
192
 Federal  Communications  Commission  FCC  04-  168 
 193 
 *  *  *  *  *  (e)  All  applicants  for  frequencies  governed  by  this  subpart  are  subject  to  the  frequency 
 coordination  requirements  of    90.175(  b)  except  applicants  requesting  frequencies  for  EA-  based  SMR  operations  in  the  806-  824  MHz  /851-  869  MHz  band  or  896-  901  MHz  /935-  940  MHz  band. 


 26.  Paragraph  (c)  of  Section  90.609  is  amended  to  eliminate  references  to  Spectrum  Block  D  which  will  no  longer  exist  after  band  reconfiguration: 
   90.609  Special  limitations  on  amendment  of  applications  for  assignment  or  transfer  of  authorizations  for  radio  systems  above  800  MHz. 
 *  *  *  *  *  (c)  Licensees  of  constructed  systems  in  any  category  are  permitted  to  make  partial  assignments  of 
 an  authorized  grant  to  an  applicant  proposing  to  create  a  new  system  or  to  an  existing  licensee  that  has  loaded  its  system  to  70  mobiles  per  channel  and  is  expanding  that  system.  An  applicant  authorized  to 
 expand  an  existing  system  or  to  create  a  new  system  with  frequencies  from  any  category  obtained  through  partial  assignment  will  receive  the  assignor's  existing  license  expiration  date  and  loading 
 deadline  for  the  frequencies  that  are  assigned.  A  licensee  that  makes  a  partial  assignment  of  a  station's  frequencies  will  not  be  authorized  to  obtain  additional  frequencies  for  that  station  for  a  period  of  one 
 year  from  the  date  of  the  partial  assignment. 
 *  *  *  *  * 
 27.  Section  90.613  is  amended  to  indicate  the  channel  designations  after  band  reconfiguration: 
   90.613  Frequencies  available. 
 The  following  tables  indicate  the  channel  designations  of  frequencies  available  for  assignment  to  eligible  applicants  under  this  subpart.  Frequencies  shall  be  assigned  in  pairs,  with  mobile  and  control 


 station  transmitting  frequencies  taken  from  the  806  824  MHz  band  with  corresponding  base  station  frequencies  being  45  MHz  higher  and  taken  from  the  851  869  MHz  band,  or  with  mobile  and  control 
 station  frequencies  taken  from  the  896  901  MHz  band  with  corresponding  base  station  frequencies  being  39  MHz  higher  and  taken  from  the  935  940  MHz  band.  Only  the  base  station  transmitting 
 frequency  of  each  pair  is  listed  in  the  following  tables. 
 TABLE  OF  806-  824/  851-  869  MHZ  CHANNEL  DESIGNATIONS 


 Channel  No.  Base  Frequency  (MHz) 
 1  ..  851.0125  2  ..  .0375 
 3  ..  .0500  4  ..  .0625 
 5  ..  .0750  6  ..  .0875 
 7  ..  .1000  8  ..  .1125 
 9  ..  .1250  10    .1375 
 11    .1500  12    .1625 
 13    .1750 
193
 Federal  Communications  Commission  FCC  04-  168 
 194 
 14    .1875  15    .2000 
 16    .2125  17    .2250 
 18  ....  .2375  19    .2500 
 20    .2625  21    .2750 
 22    .2875  23    .3000 
 24    .3125  25    .3250 
 26    .3375  27    .3500 
 28    .3625  29    .3750 
 30    .3875  31    .4000 
 32    .4125  33  ....  .4250 
 34    .4375  35    .4500 
 36    .4625  37    .4750 
 38    .4875  39    .5125 
 40    .5375  41    .5500 
 42    .5625  43    .5750 
 44    .5875  45    .6000 
 46    .6125  47    .6250 
 48    .6375  49    .6500 
 50    .6625  51    .6750 
 52    .6875  53    .7000 
 54    .7125  55    .7250 
 56    .7375  57    .7500 
 58    .7625  59    .7750 
 60    .7875  61    .8000 
 62    .8125 
194
 Federal  Communications  Commission  FCC  04-  168 
 195 
 63    .8250  64    .8375 
 65    .8500  66    .8625 
 67    .8750  68    .8875 
 69    .9000  70    .9125 
 71    .9250  72    .9375 
 73    .9500  74    .9625 
 75    .9750  76    .9875 
 77    852.0125  78    .0375 
 79    .0500  80    .0625 
 81    .0750  82    .0875 
 83    .1000  84    .1125 
 85    .1250  86    .1375 
 87    .1500  88    .1625 
 89    .1750  90    .1875 
 91    .2000  92    .2125 
 93    .2250  94    .2375 
 95    .2500  96    .2625 
 97    .2750  98    .2875 
 99    .3000  100  ...  .3125 
 101  ...  .3250  102  ...  .3375 
 103  ...  .3500  104  ...  .3625 
 105  ...  .3750  106  ...  .3875 
 107  .4000  108  .4125 
 109  .4250  110  .4375 
 111  .4500 
195
 Federal  Communications  Commission  FCC  04-  168 
 196 
 112  .4625  113  .4750 
 114  .4875  115  .5125 
 116  .5375  117  .5500 
 118  .5625  119  .5750 
 120  .5875  121  .6000 
 122  .6125  123  .6250 
 124  .6375  125  .6500 
 126  .6625  127  .6750 
 128  .6875  129  .7000 
 130  .7125  131  .7250 
 132  .7375  133  .7500 
 134  .7625  135  .7750 
 136  .7875  137  .8000 
 138  .8125  139  .8250 
 140  .8375  141  .8500 
 142  .8625  143  .8750 
 144  .8875  145  .9000 
 146  .9125  147  .9250 
 148  .9375  149  .9500 
 150  .9625  151  .9750 
 152  .9875  153  853.0125 
 154  .0375  155  .0500 
 156  .0625  157  .0750 
 158  .0875  159  .1000 
 160  .1125 
196
 Federal  Communications  Commission  FCC  04-  168 
 197 
 161  .1250  162  .1375 
 163  .1500  164  .1625 
 165  .1750  166  .1875 
 167  .2000  168  .2125 
 169  .2250  170  .2375 
 171  .2500  172  .2625 
 173  .2750  174  .2875 
 175  .3000  176  .3125 
 177  .3250  178  .3375 
 179  .3500  180  .3625 
 181  .3750  182  .3875 
 183  .4000  184  .4125 
 185  .4250  186  .4375 
 187  .4500  188  .4625 
 189  .4750  190  .4875 
 191  .5000  192  .5125 
 193  .5250  194  .5375 
 195  .5500  196  .5625 
 197  .5750  198  .5875 
 199  .6000  200  .6125 
 201  .6250  202  .6375 
 203  .6500  204  .6625 
 205  .6750  206  .6875 
 207  .7000  208  .7125 
 209  .7250 
197
 Federal  Communications  Commission  FCC  04-  168 
 198 
 210  .7375  211  .7500 
 212  .7625  213  .7750 
 214  .7875  215  .8000 
 216  .8125  217  .8250 
 218  .8375  219  .8500 
 220  .8625  221  .8750 
 222  .8875  223  .9000 
 224  .9125  225  .9250 
 226  .9375  227  .9500 
 228  .9625  229  .9750 
 230  .9875  231  854.0125 
 232  .0375  233  .0625 
 234  .0875  235  .1125 
 236  .1375  237  .1625 
 238  .1875  239  .2125 
 240  .2375  241  .2625 
 242  .2875  243  .3125 
 244  .3375  245  .3625 
 246  .3875  247  .4125 
 248  .4375  249  .4625 
 250  .4875  251  .5125 
 252  .5375  253  .5625 
 254  .5875  255  .6125 
 256  .6375  257  .6625 
 258  .6875 
198
 Federal  Communications  Commission  FCC  04-  168 
 199 
 259  .7125  260  .7375 
 261  .7625  262  .7875 
 263  .8125  264  .8375 
 265  .8625  266  .8875 
 267  .9125  268  .9375 
 269  .9625  270  .9875 
 271  855.0125  272  .0375 
 273  .0625  274  .0875 
 275  .1125  276  .1375 
 277  .1625  278  .1875 
 279  .2125  280  .2375 
 281  .2625  282  .2875 
 283  .3125  284  .3375 
 285  .3625  286  .3875 
 287  .4125  288  .4375 
 289  .4625  290  .4875 
 291  .5125  292  .5375 
 293  .5625  294  .5875 
 295  .6125  296  .6375 
 297  .6625  298  .6875 
 299  .7125  300  .7375 
 301  .7625  302  .7875 
 303  .8125  304  .8375 
 305  .8625  306  .8875 
 307  .9125 
199
 Federal  Communications  Commission  FCC  04-  168 
 200 
 308  .9375  309  .9625 
 310  .9875  311  856.0125 
 312  .0375  313  .0625 
 314  .0875  315  .1125 
 316  .1375  317  .1625 
 318  .1875  319  .2125 
 320  .2375  321  .2625 
 322  .2875  323  .3125 
 324  .3375  325  .3625 
 326  .3875  327  .4125 
 328  .4375  329  .4625 
 330  .4875  331  .5125 
 332  .5375  333  .5625 
 334  .5875  335  .6125 
 336  .6375  337  .6625 
 338  .6875  339  .7125 
 340  .7375  341  .7625 
 342  .7875  343  .8125 
 344  .8375  345  .8625 
 346  .8875  347  .9125 
 348  .9375  349  .9625 
 350  .9875  351  857.0125 
 352  .0375  353  .0625 
 354  .0875  355  .1125 
 356  .1375 
200
 Federal  Communications  Commission  FCC  04-  168 
 201 
 357  .1625  358  .1875 
 359  .2125  360  .2375 
 361  .2625  362  .2875 
 363  .3125  364  .3375 
 365  .3625  366  .3875 
 367  .4125  368  .4375 
 369  .4625  370  .4875 
 371  .5125  372  .5375 
 373  .5625  374  .5875 
 375  .6125  376  .6375 
 377  .6625  378  .6875 
 379  .7125  380  .7375 
 381  .7625  382  .7875 
 383  .8125  384  .8375 
 385  .8625  386  .8875 
 387  .9125  388  .9375 
 389  .9625  390  .9875 
 391  858.0125  392  .0375 
 393  .0625  394  .0875 
 395  .1125  396  .1375 
 397  .1625  398  .1875 
 399  .2125  400  .2375 
 401  .2625  402  .2875 
 403  .3125  404  .3375 
 405  .3625 
201
 Federal  Communications  Commission  FCC  04-  168 
 202 
 406  .3875  407  .4125 
 408  .4375  409  .4625 
 410  .4875  411  .5125 
 412  .5375  413  .5625 
 414  .5875  415  .6125 
 416  .6375  417  .6625 
 418  .6875  419  .7125 
 420  .7375  421  .7625 
 422  .7875  423  .8125 
 424  .8375  425  .8625 
 426  .8875  427  .9125 
 428  .9375  429  .9625 
 430  .9875  431  859.0125 
 432  .0375  433  .0625 
 434  .0875  435  .1125 
 436  .1375  437  .1625 
 438  .1875  439  .2125 
 440  .2375  441  .2625 
 442  .2875  443  .3125 
 444  .3375  445  .3625 
 446  .3875  447  .4125 
 448  .4375  449  .4625 
 450  .4875  451  .5125 
 452  .5375  453  .5625 
 454  .5875 
202
 Federal  Communications  Commission  FCC  04-  168 
 203 
 455  .6125  456  .6375 
 457  .6625  458  .6875 
 459  .7125  460  .7375 
 461  .7625  462  .7875 
 463  .8125  464  .8375 
 465  .8625  466  .8875 
 467  .9125  468  .9375 
 469  .9625  470  .9875 
 471  860.0125  472  .0375 
 473  .0625  474  .0875 
 475  .1125  476  .1375 
 477  .1625  478  .1875 
 479  .2125  480  .2375 
 481  .2625  482  .2875 
 483  .3125  484  .3375 
 485  .3625  486  .3875 
 487  .4125  488  .4375 
 489  .4625  490  .4875 
 491  .5125  492  .5375 
 493  .5625  494  .5875 
 495  .6125  496  .6375 
 497  .6625  498  .6875 
 499  .7125  500  .7375 
 501  .7625  502  .7875 
 503  .8125 
203
 Federal  Communications  Commission  FCC  04-  168 
 204 
 504  .8375  505  .8625 
 506  .8875  507  .9125 
 508  .9375  509  .9625 
 510  .9875  511  861.0125 
 512  .0375  513  .0625 
 514  .0875  515  .1125 
 516  .1375  517  .1625 
 518  .1875  519  .2125 
 520  .2375  521  .2625 
 522  .2875  523  .3125 
 524  .3375  525  .3625 
 526  .3875  527  .4125 
 528  .4375  529  .4625 
 530  .4875  531  .5125 
 532  .5375  533  .5625 
 534  .5875  535  .6125 
 536  .6375  537  .6625 
 538  .6875  539  .7125 
 540  .7375  541  .7625 
 542  .7875  543  .8125 
 544  .8375  545  .8625 
 546  .8875  547  .9125 
 548  .9375  549  .9625 
 550  .9875  551  862.0125 
 552  .0375 
204
 Federal  Communications  Commission  FCC  04-  168 
 205 
 553  .0625  554  .0875 
 555  .1125  556  .1375 
 557  .1625  558  .1875 
 559  .2125  560  .2375 
 561  .2625  562  .2875 
 563  .3125  564  .3375 
 565  .3625  566  .3875 
 567  .4125  568  .4375 
 569  .4625  570  .4875 
 571  .5125  572  .5375 
 573  .5625  574  .5875 
 575  .6125  576  .6375 
 577  .6625  578  .6875 
 579  .7125  580  .7375 
 581  .7625  582  .7875 
 583  .8125  584  .8375 
 585  .8625  586  .8875 
 587  .9125  588  .9375 
 589  .9625  590  .9875 
 591  863.0125  592  .0375 
 593  .0625  594  .0875 
 595  .1125  596  .1375 
 597  .1625  598  .1875 
 599  .2125  600  .2375 
 601  .2625 
205
 Federal  Communications  Commission  FCC  04-  168 
 206 
 602  .2875  603  .3125 
 604  .3375  605  .3625 
 606  .3875  607  .4125 
 608  .4375  609  .4625 
 610  .4875  611  .5125 
 612  .5375  613  .5625 
 614  .5875  615  .6125 
 616  .6375  617  .6625 
 618  .6875  619  .7125 
 620  .7375  621  .7625 
 622  .7875  623  .8125 
 624  .8375  625  .8625 
 626  .8875  627  .9125 
 628  .9375  629  .9625 
 630  .9875  631  864.0125 
 632  .0375  633  .0625 
 634  .0875  635  .1125 
 636  .1375  637  .1625 
 638  .1875  639  .2125 
 640  .2375  641  .2625 
 642  .2875  643  .3125 
 644  .3375  645  .3625 
 646  .3875  647  .4125 
 648  .4375  649  .4625 
 650  .4875 
206
 Federal  Communications  Commission  FCC  04-  168 
 207 
 651  .5125  652  .5375 
 653  .5625  654  .5875 
 655  .6125  656  .6375 
 657  .6625  658  .6875 
 659  .7125  660  .7375 
 661  .7625  662  .7875 
 663  .8125  664  .8375 
 665  .8625  666  .8875 
 667  .9125  668  .9375 
 669  .9625  670  .9875 
 671  865.0125  672  .0375 
 673  .0625  674  .0875 
 675  .1125  676  .1375 
 677  .1625  678  .1875 
 679  .2125  680  .2375 
 681  .2625  682  .2875 
 683  .3125  684  .3375 
 685  .3625  686  .3875 
 687  .4125  688  .4375 
 689  .4625  690  .4875 
 691  .5125  692  .5375 
 693  .5625  694  .5875 
 695  .6125  696  .6375 
 697  .6625  698  .6875 
 699  .7125 
207
 Federal  Communications  Commission  FCC  04-  168 
 208 
 700  .7375  701  .7625 
 702  .7875  703  .8125 
 704  .8375  705  .8625 
 706  .8875  707  .9125 
 708  .9375  709  .9625 
 710  .9875  711  866.0125 
 712  .0375  713  .0625 
 714  .0875  715  .1125 
 716  .1375  717  .1625 
 718  .1875  719  .2125 
 720  .2375  721  .2625 
 722  .2875  723  .3125 
 724  .3375  725  .3625 
 726  .3875  727  .4125 
 728  .4375  729  .4625 
 730  .4875  731  .5125 
 732  .5375  733  .5625 
 734  .5875  735  .6125 
 736  .6375  737  .6625 
 738  .6875  739  .7125 
 740  .7375  741  .7625 
 742  .7875  743  .8125 
 744  .8375  745  .8625 
 746  .8875  747  .9125 
 748  .9375 
208
 Federal  Communications  Commission  FCC  04-  168 
 209 
 749  .9625  750  .9875 
 751  867.0125  752  .0375 
 753  .0625  754  .0875 
 755  .1125  756  .1375 
 757  .1625  758  .1875 
 759  .2125  760  .2375 
 761  .2625  762  .2875 
 763  .3125  764  .3375 
 765  .3625  766  .3875 
 767  .4125  768  .4375 
 769  .4625  770  .4875 
 771  .5125  772  .5375 
 773  .5625  774  .5875 
 775  .6125  776  .6375 
 777  .6625  778  .6875 
 779  .7125  780  .7375 
 781  .7625  782  .7875 
 783  .8125  784  .8375 
 785  .8625  786  .8875 
 787  .9125  788  .9375 
 789  .9625  790  .9875 
 791  868.0125  792  .0375 
 793  .0625  794  .0875 
 795  .1125  796  .1375 
 797  .1625 
209
 Federal  Communications  Commission  FCC  04-  168 
 210 
 798  .1875  799  .2125 
 800  .2375  801  .2625 
 802  .2875  803  .3125 
 804  .3375  805  .3625 
 806  .3875  807  .4125 
 808  .4375  809  .4625 
 810  .4875  811  .5125 
 812  .5375  813  .5625 
 814  .5875  815  .6125 
 816  .6375  817  .6625 
 818  .6875  819  .7125 
 820  .7375  821  .7625 
 822  .7875  823  .8125 
 824  .8375  825  .8625 
 826  .8875  827  .9125 
 828  .9375  829  .9625 
 830  .9875 


 *  *  *  *  * 
 28.  A  new  section  90.614  is  added  immediately  after  the  text  of  Section  90.613  as  follows: 
   90.614  Cellular  and  non-  cellular  portions  of  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  cellular  systems    as  defined  in    90.7    are  prohibited  from  operating  on  channels  1-  550  in  non-  border  areas. 


 (b)  800  MHz  cellular  systems    as  defined  in    90.7    are  permitted  to  operate  on  channels  551-  830  in  non-  border  areas. 
210
 Federal  Communications  Commission  FCC  04-  168 
 211 
 (c)  In  the  following  counties  and  parishes,  800  MHz  cellular  systems    as  defined  in    90.7    are  permitted  to  operate  on  channels  411-  830: 
 Alabama  Autauga,  Baldwin,  Barbour,  Bibb,  Blount,  Bullock,  Butler,  Calhoun,  Chambers,  Cherokee,  Chilton, 
 Choctaw,  Clarke,  Clay,  Cleburne,  Coffee,  Colbert,  Conecuh,  Coosa,  Covington,  Crenshaw,  Cullman,  Dale,  Dallas,  DeKalb,  Elmore,  Escambia,  Etowah,  Fayette,  Franklin,  Geneva,  Greene,  Hale,  Henry,  Houston, 
 Jackson,  Jefferson,  Lamar,  Lauderdale,  Lawrence,  Lee,  Limestone,  Lowndes,  Macon,  Madison,  Marengo,  Marion,  Marshall,  Mobile,  Monroe,  Montgomery,  Morgan,  Perry,  Pickens,  Pike,  Randolph,  Russell, 
 Shelby,  St  Clair,  Sumter,  Talladega,  Tallapoosa,  Tuscaloosa,  Walker,  Washington,  Wilcox,  Winston 
 Florida  Bay,  Calhoun,  Escambia,  Franklin,  Gadsden,  Gulf,  Holmes,  Jackson,  Jefferson,  Leon,  Liberty,  Madison, 
 Nassau,  Okaloosa,  Santa  Rosa,  Taylor,  Wakulla,  Walton,  Washington 
 Georgia  Appling,  Atkinson,  Bacon,  Baker,  Baldwin,  Banks,  Barrow,  Bartow,  Ben  Hill,  Berrien,  Bibb,  Bleckley, 
 Brantley,  Brooks,  Bryan,  Bulloch,  Burke,  Butts,  Calhoun,  Camden,  Candler,  Carroll,  Catoosa,  Charlton,  Chatham,  Chattahoochee,  Chattooga,  Cherokee,  Clarke,  Clay,  Clayton,  Clinch,  Cobb,  Coffee,  Colquitt, 
 Columbia,  Cook,  Coweta,  Crawford,  Crisp,  Dade,  Dawson,  Decatur,  DeKalb,  Dodge,  Dooly,  Dougherty,  Douglas,  Early,  Echols,  Effingham,  Elbert,  Emanuel,  Evans,  Fannin,  Fayette,  Floyd,  Forsyth,  Franklin, 
 Fulton,  Gilmer,  Glascock,  Glynn,  Gordon,  Grady,  Greene,  Gwinnett,  Habersham,  Hall,  Hancock,  Haralson,  Harris,  Hart,  Heard,  Henry,  Houston,  Irwin,  Jackson,  Jasper,  Jeff  Davis,  Jefferson,  Jenkins, 
 Johnson,  Jones,  Lamar,  Lanier,  Laurens,  Lee,  Liberty,  Lincoln,  Long,  Lowndes,  Lumpkin,  Macon,  Madison,  Marion,  McDuffie,  McIntosh,  Meriwether,  Miller,  Mitchell,  Monroe,  Montgomery,  Morgan, 
 Murray,  Muscogee,  Newton,  Oconee,  Oglethorpe,  Paulding,  Peach,  Pickens,  Pierce,  Pike,  Polk,  Pulaski,  Putnam,  Quitman,  Rabun,  Randolph,  Richmond,  Rockdale,  Schley,  Screven,  Seminole,  Spalding, 
 Stephens,  Stewart,  Sumter,  Talbot,  Taliaferro,  Tattnall,  Taylor,  Telfair,  Terrell,  Thomas,  Tift,  Toombs,  Towns,  Treutlen,  Troup,  Turner,  Twiggs,  Union,  Upson,  Walker,  Walton,  Ware,  Warren,  Washington, 
 Wayne,  Webster,  Wheeler,  White,  Whitfield,  Wilcox,  Wilkes,  Wilkinson,  Worth 
 Louisiana  Catahoula,  Concordia,  Madison,  Tensas 


 Mississippi  Adams,  Alcorn,  Amite,  Attala,  Calhoun,  Carroll,  Chickasaw,  Choctaw,  Claiborne,  Clarke,  Clay,  Copiah, 
 Covington,  Forrest,  Franklin,  George,  Greene,  Grenada,  Hancock,  Harrison,  Hinds,  Holmes,  Itawamba,  Jackson,  Jasper,  Jefferson,  Jefferson  Davis,  Jones,  Kemper,  Lamar,  Lauderdale,  Lawrence,  Leake,  Lee, 
 Lincoln,  Lowndes,  Madison,  Marion,  Monroe,  Montgomery,  Neshoba,  Newton,  Noxubee,  Oktibbeha,  Pearl  River,  Perry,  Pike,  Pontotoc,  Prentiss,  Rankin,  Scott,  Simpson,  Smith,  Stone,  Tippah,  Tishomingo, 
 Union,  Walthall,  Warren,  Wayne,  Webster,  Wilkinson,  Winston,  Yazoo 
 North  Carolina  Cherokee,  Clay,  Graham,  Jackson,  Macon 


 South  Carolina  Abbeville,  Aiken,  Allendale,  Anderson,  Bamberg,  Barnwell,  Beaufort,  Edgefield,  Greenwood,  Hampton, 
 Jasper,  McCormick,  Oconee 
 Tennessee  Bledsoe,  Bradley,  Franklin,  Giles,  Hamilton,  Hardin,  Lawrence,  Lincoln,  Marion,  McMinn 
211
 Federal  Communications  Commission  FCC  04-  168 
 212 
 29.  Section  90.615  is  amended  to  read  as  follows  to  reflect  the  General  Category  after  band  reconfiguration. 
   90.615  Individual  channels  available  in  the  General  Category  in  806-  824/  851-  869  MHz  band. 
 The  General  Category  will  consist  of  channels  231-  260  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. 
 (a)  Channels  231-  260  will  be  available  only  to  eligible  applicants  in  the  Public  Safety  Category  until  [Three  years  from  effective  date  of  Report  and  Order].  These  same  channels  will  be  available 
 only  to  eligible  applicants  in  the  Public  Safety  or  Critical  Infrastructure  Industry  Categories  from  [Three  years  from  effective  date  of  Report  and  Order]  until  [Five  years  from  effective  date  of 
 Report  and  Order]. 
 (b)  All  entities  will  be  eligible  for  licensing  on  Channels  231-  260  after  [Five  years  from  effective  date  of  Report  and  Order]. 


 30.  Section  90.617  is  amended  to  read  as  follows  to  reflect  the  channels  available  after  band  reconfiguration. 
   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. 
 Except  for  the  counties  and  parishes  listed  in    90.614(  c),  the  following  channels  will  be  available  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).  The  channels  in  the  counties  and  parishes  listed  in    90.614(  c)  will  be  available  in  accordance  with  an  agreement  between  Southern  LINC  and  Nextel 
 Communications,  Inc.  The  agreement  will  be  approved  by  the  Chief  of  the  Wireless  Telecommunications  Bureau. 


 (a)  The  channels  listed  in  Table  1  and  paragraph  (a)(  1)  of  this  section  are  available  for  non-  cellular  operations  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  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 
212
 Federal  Communications  Commission  FCC  04-  168 
 213 
 351  351-  379-  409-  429-  449  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). 
 (b)  Unless  otherwise  specified,  the  channels  listed  in  Table  2  are  available  for  non-  cellular  operations  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  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  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 


 (c)  The  channels  listed  in  Table  3  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). 
 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  intercategory  sharing  as 
 indicated  in  90.621(  e). 
 TABLE  3    BUSINESS/  INDUSTRIAL/  LAND  TRANSPORTATION  POOL  896-  901/  935-  940  MHZ  BAND  CHANNELS  199  CHANNELS 


 For  multi-  channel  systems,  channels  may  be  grouped  vertically  or  horizontally  as  they  appear  in 
213
 Federal  Communications  Commission  FCC  04-  168 
 214 
 the  below  table. 
 Channel  Nos. 


 11-  12-  13-  14-  15  211-  212-  213-  214-  215  16-  17-  18-  19-  20  216-  217-  218-  219-  220 
 31-  32-  33-  34-  35  231-  232-  233-  234-  235  36-  37-  38-  39-  40  236-  237-  238-  239-  240 
 51-  52-  53-  54-  55  251-  252-  253-  254-  255  56-  57-  58-  59-  60  256-  257-  258-  259-  260 
 71-  72-  73-  74-  75  271-  272-  273-  274-  275  76-  77-  78-  79-  80  276-  277-  278-  279-  280 
 91-  92-  93-  94-  95  291-  292-  293-  294-  295  96-  97-  98-  99-  100  296-  297-  298-  299-  300 
 111-  112-  113-  114-  115  311-  312-  313-  314-  315  116-  117-  118-  119-  120  316-  317-  318-  319-  320 
 131-  132-  133-  134-  135  331-  332-  333-  334-  335  136-  137-  138-  139-  140  336-  337-  338-  339-  340 
 151-  152-  153-  154-  155  351-  352-  353-  354-  355  156-  157-  158-  159-  160  356-  357-  358-  359-  360 
 171-  172-  173-  174-  175  371-  372-  373-  374-  375  176-  177-  178-  179-  180  376-  377-  378-  379-  380 
 191-  192-  193-  194-  195  391-  392-  393-  394-  395  196-  197-  198-  199-  200  396-  397-  398-  399 


 (d)  Unless  otherwise  specified,  the  channels  listed  in  Tables  4A  and  4B  are  available  for  non-cellular  operations  only  to  eligibles  in  the  SMR  category    which  consists  of  Specialized  Mobile  Radio 
 (SMR)  stations  and  eligible  end  users.  800  MHz  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  of  this  chapter)  prior  to  [Effective  date  of  Report  and  Order].  No  new  EA-  based  services  will  be  authorized  after  [Effective 
 date  of  Report  and  Order].  EA-  based  licensees  who  operate  non-  cellular  systems  prior  to  [Effective  date  of  Report  and  Order]  may  choose  to  remain  on  these  channels  in  the  non-  cellular  portion  of  the 
 800  MHz  band  (as  defined  in    90.614  of  this  chapter.)  These  licensees  may  continue  to  operate  non-cellular  systems  and  will  be  grandfathered  indefinitely.  The  channels  listed  in  Table  4B  will  be 
 available  for  site-  base  licensing  after  [Effective  date  of  Report  and  Order]  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  FOR  CELLULAR  OPERATIONS  AVAILABLE  PRIOR  TO  [Effective  date  of  Report  and  Order]  (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  K  315-  355-  395-  435-  475 
 L  316-  356-  396-  436-  476  M  317-  357-  397-  437-  477 
214
 Federal  Communications  Commission  FCC  04-  168 
 215 
 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  FOR  CELLULAR  OPERATIONS  AVAILABLE  FOR  SITE-  BASED  LICENSING  AFTER  [Effective  date  of  Report 
 and  Order]  (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 


 (e)  The  Channels  listed  in    90.614(  b)  and  (c)  of  this  chapter  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  cellular  system  as  defined  in    90.7  are  permitted  to  operate  on  these  channels  in  non-  border  areas.  ESMR  licensees  authorized  prior  to  [Effective  date  of  Report  and 
 Order]  may  continue  to  operate,  if  they  so  chose,  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  [Effective  date  of  Report  and 
 Order].  (200  CHANNELS) 
 Spectrum  Block  Channel  Nos.  A  511  through  530 


 B  531  through  590  C  591  through  710 
215
 Federal  Communications  Commission  FCC  04-  168 
 216 
 (f)  The  channels  listed  in  Tables  6  are  available  for  operations  only  to  eligibles  in  the  SMR  category    which  consists  of  Specialized  Mobile  Radio  (SMR)  stations  and  eligible  end  users.  These 
 frequencies  are  available  in  non-  border  areas.  The  spectrum  blocks  listed  below  are  available  for  EA-based  services  according  to    90.681. 


 TABLE  6    SMR  CATEGORY  896-  901/  935-  940  MHZ  BAND  CHANNELS  (200  CHANNELS) 
 Block  Channel  Nos.  A  1-  2-  3-  4-  5-  6-  7-  8-  9-  10 


 B  21-  22-  23-  24-  25-  26-  27-  28-  29-  30  C  41-  42-  43-  44-  45-  46-  47-  48-  49-  50 
 D  61-  62-  63-  64-  65-  66-  67-  68-  69-  70  E  81-  82-  83-  84-  85-  86-  87-  88-  89-  90 
 F  101-  102-  103-  104-  105-  106-  107-  108-  109-  110  G  121-  122-  123-  124-  125-  126-  127-  128-  129-  130 
 H  141-  142-  143-  144-  145-  146-  147-  148-  149-  150  I  161-  162-  163-  164-  165-  166-  167-  168-  169-  170 
 J  181-  182-  183-  184-  185-  186-  187-  188-  189-  190  K  201-  202-  203-  204-  205-  206-  207-  208-  209-  210 
 L  221-  222-  223-  224-  225-  226-  227-  228-  229-  230  M  241-  242-  243-  244-  245-  246-  247-  248-  249-  250 
 N  261-  262-  263-  264-  265-  266-  267-  268-  269-  270  O  281-  282-  283-  284-  285-  286-  287-  288-  289-  290 
 P  301-  302-  303-  304-  305-  306-  307-  308-  309-  310  Q  321-  322-  323-  324-  325-  326-  327-  328-  329-  330 
 R  341-  342-  343-  344-  345-  346-  347-  348-  349-  350  S  361-  362-  363-  364-  365-  366-  367-  368-  369-  370 
 T  381-  382-  383-  384-  385-  386-  387-  388-  389-  390 


 (g)  Channels  below  470  listed  in  Tables  2  and  4B  which  are  vacated  by  ESMR  licensees  after  [Effective  date  of  Report  and  Order]  are  available  only  to  eligible  applicants  in  the  Public  Safety 
 Category  until  [Three  years  from  effective  date  of  Report  and  Order].  These  same  channels  will  be  available  only  to  eligible  applicants  in  the  Public  Safety  or  Critical  Infrastructure  Industry  Categories 
 from  [Three  years  from  effective  date  of  Report  and  Order]  until  [Five  years  from  effective  date  of  Report  and  Order].  After  [Five  years  from  effective  date  of  Report  and  Order]  these  channels  will 
 revert  back  to  their  original  pool  categories. 
 (h)  Channels  below  470  listed  in  Tables  2  and  4B  which  are  vacated  by  licensees  relocating  to  Channels  511-  550  after  [Effective  date  of  Report  and  Order]  are  available  only  to  eligible  applicants 


 in  the  Public  Safety  Category  until  [Three  years  from  effective  date  of  Report  and  Order].  These  same  channels  will  be  available  only  to  eligible  applicants  in  the  Public  Safety  or  Critical 
 Infrastructure  Industry  Categories  from  [Three  years  from  effective  date  of  Report  and  Order]  until  [Five  years  from  effective  date  of  Report  and  Order].  After  [Five  years  from  effective  date  of 
 Report  and  Order]  these  channels  will  revert  back  to  their  original  pool  categories. 
 (i)  Special  Mobilized  Radio  Systems  licensees  who  operate  non-  cellular  systems  on  any  of  the  public  safety  channels  listed  in  Table  1  prior  to  [Effective  date  of  Report  and  Order]  are 


 grandfathered  and  may  continue  to  operate  on  these  channels  indefinitely.  These  grandfathered  licensees  will  be  prohibited  from  operating  800  MHz  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 
216
 Federal  Communications  Commission  FCC  04-  168 
 217 
 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  ESMR  systems  in  the  non-  cellular  portion  of  the  band  (as  defined  in    90.614)  prior  to  [Effective  date  of  Report  and  Order]  may  elect  to  continue  operating  in  the  non-cellular 
 portion  of  the  band.  These  licensees  will  be  permitted  to  continue  operating  800  MHz  cellular  systems  (as  defined  in    90.7)  in  the  non-  cellular  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  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  &  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)  &  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: 


 (1)  Mobile  units: 
 (i)  For  channels  511  to  524    the  minimum  median  desired  signal  levels  specified  in    22.970(  a)(  1)(  i)  &  90.672(  a)(  1)(  i)  shall  apply; 


 (ii)  For  channels  524  to  534    the  minimum  median  desired  signal  level  shall  increase  linearly  from  the  values  specified  in    22.970(  a)(  1)(  i)  &  90.672(  a)(  1)(  i)  to  -70  dBm; 
 (iii)  For  channels  534  to  550    the  minimum  median  desired  signal  level  shall  increase  linearly  from  -70  dBm  to  -65  dBm. 
 (2)  Portable  units: 
 (i)  For  channels  511  to  524    the  minimum  median  desired  signal  levels  specified  in    22.970(  a)(  1)(  i)  &  90.672(  a)(  1)(  i)  shall  apply; 


 (ii)  For  channels  524  to  530    the  minimum  median  desired  signal  level  shall  increase  linearly  from  the  values  specified  in    22.970(  a)(  1)(  i)  &  90.672(  a)(  1)(  i)  to  -80  dBm; 
 (iii)  For  channels  530  to  534    the  minimum  median  desired  signal  level  shall  increase  linearly  from  -80  dBm  to  -70  dBm; 
 (iv)  For  channels  534  to  550    the  minimum  median  desired  signal  level  shall  increase  linearly  from  -70  dBm  to  -65  dBm. 
 31.  Section  90.619  is  amended  to  read  as  follows. 
   90.619  Operations  within  the  U.  S./  Mexico  and  U.  S./  Canada  border  areas. 
 (a)  Use  of  Frequencies  in  800  MHz  Band  in  Mexico  Border  Region.  All  operations  in  the  806-  824/  851-  869  MHz  band  within  110  km  (68.4  miles)  of  the  U.  S./  Mexico  border  (  Mexico  border 


 region)  shall  be  in  accordance  with  international  agreements  between  the  U.  S.  and  Mexico.  Channels  231-  710  are  offset  12.5  kHz  lower  in  frequency  than  those  specified  in  the  table  in  90.613.  Stations 
 located  on  Mt.  Lemmon,  serving  the  Tucson,  AZ  area,  will  only  be  authorized  offset  frequencies. 
 (b)  Use  of  Frequencies  in  900  MHz  Band  in  Mexico  Border  Region.  All  operations  in  the  896- 
217
 Federal  Communications  Commission  FCC  04-  168 
 218 
 901/  935-  940  MHz  band  within  the  Mexico  border  region  shall  be  in  accordance  with  international  agreements  between  the  U.  S.  and  Mexico. 
 (1)  The  channels  listed  in  Table  1  below  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).  These  frequencies  are  available  within  the  Mexico  border  region.  Specialized  Mobile  Radio  (SMR)  systems  will  not  be  authorized  on  these  frequencies. 


 TABLE  1    UNITED  STATES/  MEXICO  BORDER  AREA,  BUSINESS/  INDUSTRIAL/  LAND  TRANSPORTATION  POOL  896-  901/  935-  940  MHZ  BAND  (199  CHANNELS) 
 For  multi-  channel  systems,  channels  may  be  grouped  vertically  or  horizontally  as  they  appear  in  the  following  table.  Channels  numbered  above  200  may  be  used  only  subject  to  the  power  flux  density 
 limits  stated  in  paragraph  (a)(  2)  of  this  section: 
 Channels  Nos.  11-  12-  13-  14-  15  131-  132-  133-  134-  135 


 16-  17-  18-  19-  20  136-  137-  138-  139-  140  31-  32-  33-  34-  35  231-  232-  233-  234-  235 
 36-  37-  38-  39-  40  236-  237-  238-  239-  240  51-  52-  53-  54-  55  171-  172-  173-  174-  175 
 56-  57-  58-  59-  60  176-  177-  178-  179-  180  71-  72-  73-  74-  75  271-  272-  273-  274-  275 
 76-  77-  78-  79-  80  276-  277-  278-  279-  280  91-  92-  93-  94-  95  211-  212-  213-  214-  215 
 96-  97-  98-  99-  100  216-  217-  218-  219-  220  111-  112-  113-  114-  115  311-  312-  313-  314-  315 
 116-  117-  118-  119-  120  316-  317-  318-  319-  320  151-  152-  153-  154-  155  351-  352-  353-  354-  355 
 156-  157-  158-  159-  160  356-  357-  358-  359-  360  191-  192-  193-  194-  195  391-  392-  393-  394-  395 
 196-  197-  198-  199-  200  396-  397-  398-  399  251-  252-  253-  254-  255  331-  332-  333-  334-  335 
 256-  257-  258-  259-  260  336-  337-  338-  339-  340  291-  292-  293-  294-  295  371-  372-  373-  374-  375 
 296-  297-  298-  299-  300  376-  377-  378-  379-  380 


 (2)  The  channels  listed  in  Table  2  below  are  available  for  operations  only  to  eligibles  in  the  SMR  category    which  consists  of  Specialized  Mobile  Radio  (SMR)  stations  and  eligible  end  users.  These 
 frequencies  are  available  in  the  Mexico  border  region.  The  spectrum  blocks  listed  below  are  available  for  EA-  based  services  according  to    90.681. 


 TABLE  2    UNITED  STATES-  MEXICO  BORDER  AREA,  SMR  CATEGORY  896-  901/  935-  940  MHZ  BAND  (200  CHANNELS) 
 Block  Channel  Nos.  Channels  numbered  above  200  may  only  be  used  subject  to  the  power  flux  density  limits  at  or 
 beyond  the  Mexico  border  as  stated  in  paragraph  (4)  of  this  section. 
 A  1-  2-  3-  4-  5-  6-  7-  8-  9-  10  B  21-  22-  23-  24-  25-  26-  27-  28-  29-  30 
218
 Federal  Communications  Commission  FCC  04-  168 
 220 
 (c)  Use  of  800  MHz  Band  in  Canada  Border  Region.  All  operations  in  the  806-  824/  851-  869  MHz  band  within  140  km  (87  miles)  of  the  U.  S./  Canada  border  (  Canada  border  region)  shall  be  in 
 accordance  with  international  agreements  between  the  U.  S.  and  Canada. 
 (d)  Use  of  900  MHz  Band  in  Canada  Border  Region.  All  operations  in  the  896  901/  935  940  MHz  band  within  the  Canada  border  region  shall  be  in  accordance  with  international  agreements 


 between  the  U.  S.  and  Canada.  The  following  criteria  shall  govern  the  assignment  of  frequency  pairs  (channels)  in  the  896  901/  935  940  MHz  band  for  stations  located  in  the  U.  S./  Canada  border  area. 
 They  are  available  for  assignments  for  conventional  or  trunked  systems  in  accordance  with  applicable  sections  of  this  subpart.  *  *  * 


 32.  Paragraphs  (a),  (b),  (c),  (e),  (f),  (g)  and  (h)  of  Section  90.621  are  amended  to  reflect  the  combining  of  the  Business  and  Industrial/  Land  Transportation  categories  into  one  pool;  to  allow  CMRS 
 operations  on  900  MHz  PLMR  channels;  to  allow  900  MHz  PLMR  licensees  to  transfer  their  licenses  to  CMRS  licensees;  to  reflect  the  new  channel  numbers  after  band  reconfiguration  and  to  remove  all 
 references  to  spectrum  blocks  D  through  F1  which  will  no  longer  exist  after  band  reconfiguration. 
   90.621  Selection  and  assignment  of  frequencies. 
 (a)  Applicants  for  frequencies  in  the  Public  Safety  and  Business/  Industrial/  Land  Transportation  Categories  must  specify  on  the  application  the  frequencies  on  which  the  proposed  system  will  operate 


 pursuant  to  a  recommendation  by  the  applicable  frequency  coordinator.  Applicants  for  frequencies  in  the  SMR  Category  must  request  specific  frequencies  by  including  in  their  applications  the  frequencies 
 requested. 
 *  *  *  *  * 
 (b)  Stations  authorized  on  frequencies  listed  in  this  subpart,  except  for  those  stations  authorized  pursuant  to  paragraph  (g)  of  this  section  and  EA-  based  and  MTA-  based  SMR  systems,  will  be 


 assigned  frequencies  solely  on  the  basis  of  fixed  distance  separation  criteria.  The  separation  between  co-  channel  systems  will  be  a  minimum  of  113  km  (70  mi)  with  one  exception.  For  incumbent 
 licensees  in  Channel  Blocks  G  through  V,  that  have  received  the  consent  of  all  affected  parties  or  a  certified  frequency  coordinator  to  utilize  an  18  dBV/  m  signal  strength  interference  contour  (see 
 90.693),  the  separation  between  co-  channel  systems  will  be  a  minimum  of  173  km  (107  mi).  The  following  exceptions  to  these  separations  shall  apply: 


 (1)  Except  as  indicated  in  paragraph  (b)(  4)  of  this  section,  no  station  in  Channel  Blocks  A  through  V  shall  be  less  than  169  km  (105  mi)  distant  from  a  co-  channel  station  that  has  been  granted  channel 
 exclusivity  and  authorized  1  kW  ERP  on  any  of  the  following  mountaintop  sites:  Santiago  Peak,  Sierra  Peak,  Mount  Lukens,  Mount  Wilson  (California).  Except  as  indicated  in  paragraph  (b)(  4)  of  this 
 section,  no  incumbent  licensee  in  Channel  Blocks  G  through  V  that  has  received  the  consent  of  all  affected  parties  or  a  certified  frequency  coordinator  to  utilize  an  18  dBV/  m  signal  strength 
 interference  contour  shall  be  less  than  229  km  (142  mi)  distant  from  a  co-  channel  station  that  has  been  granted  channel  exclusivity  and  authorized  1  kW  ERP  on  any  of  the  following  mountaintop  sites: 
 Santiago  Peak,  Sierra  Peak,  Mount  Lukens,  Mount  Wilson  (California). 
 *  *  *  *  * 
 (3)  Except  as  indicated  in  paragraph  (b)(  4)  of  this  section,  stations  in  Channel  Blocks  A  through  V  that  have  been  granted  channel  exclusivity  and  are  located  in  the  State  of  Washington  at  the  locations 


 listed  below  shall  be  separated  from  co-  channel  stations  by  a  minimum  of  169  km  (105  mi).  Except  as  indicated  in  paragraph  (b)(  4)  of  this  section,  incumbent  licensees  in  Channel  Blocks  G  through  V  that 
 have  received  the  consent  of  all  affected  parties  or  a  certified  frequency  coordinator  to  utilize  an  18 
220
 Federal  Communications  Commission  FCC  04-  168 
 221 
 dBV/  m  signal  strength  interference  contour,  have  been  granted  channel  exclusivity  and  are  located  in  the  State  of  Washington  at  the  locations  listed  below  shall  be  separated  from  co-  channel  stations  by  a 
 minimum  of  229  km  (142  mi).  Locations  within  one  mile  of  the  geographical  coordinates  listed  in  the  table  below  will  be  considered  to  be  at  that  site. 


 Note:  Coordinates  are  referenced  to  North  American  Datum  1983  (NAD83). 
 Site  Name  North  Latitude  West  Longitude  Mount  Constitution  48  40  47.4  122  50  28.7 


 Lyman  Mountain  48  35  41.4  122  09  39.6  Cultus  Mountain  48  25  30.4  122  08  58.5 
 Gunsite  Ridge  48  03  22.4  121  51  41.5  Gold  Mountain..  47  32  51.3  122  46  56.5 
 Buck  Mountain  47  47  05.3  122  59  34.6  Cougar  Mountain  47  32  39.4  122  06  34.4 
 Squak  Mountain.  47  30  14.4  122  03  34.4  Tiger  Mountain..  47  30  13.4  121  58  32.4 
 Devils  Mountain  48  21  52.4  122  16  06.6  McDonald  Mountain.  47  20  11.3  122  51  30.5 
 Maynard  Hill.  48  00  58.3  122  55  35.6  North  Mountain  47  19  07.3  123  20  48.6 
 Green  Mountain  47  33  40.3  122  48  31.5  Capitol  Peak  46  58  21.3  123  08  21.5 
 Rattlesnake  Mountain  47  28  09.4  121  49  17.4  Three  Sisters  Mountain.  47  07  19.4  121  53  34.4 
 Grass  Mountain.  47  12  14.1  121  47  42.4  Spar  Pole  Hill  47  02  51.4  122  08  39.4 


 *  *  *  *  * 
 (c)  Conventional  systems  authorized  on  frequencies  in  the  Public  Safety  (except  for  those  systems  that  have  participated  in  a  formal  regional  planning  process  as  described  in  90.16)  and 


 Business/  Industrial/  Land  Transportation  categories  which  have  not  met  the  loading  levels  necessary  for  channel  exclusivity  will  not  be  afforded  co-  channel  protection. 


 *  *  *  *  * 
 (e)  Frequencies  in  the  809  817/  854  862  MHz  bands  listed  as  available  for  eligibles  in  the  Public  Safety  and  Business/  Industrial/  Land  Transportation  Categories  are  available  for  inter-  category  sharing 


 under  the  following  conditions: 
 (1)  Channels  in  the  Public  Safety  and  Business/  Industrial/  Land  Transportation  categories  will  be  available  to  eligible  applicants  in  those  categories  only  if  there  are  no  frequencies  in  their  own 


 category  and  no  public  safety  systems  are  authorized  on  those  channels  under  consideration  to  be  shared. 


 (2)  Notwithstanding  paragraph  (e)(  5)  of  this  section,  licensees  of  channels  in  the  Business/  Industrial/  Land  Transportation  category  may  request  a  modification  of  the  license,  see 
 1.947  of  this  part,  to  authorize  use  of  the  channels  for  commercial  operation.  The  licensee  may  also,  at  the  same  time  or  thereafter,  seek  authorization  to  transfer  or  assign  the  license,  see  1.948  of  this 
 part,  to  any  person  eligible  for  licensing  in  the  General  or  SMR  categories.  Applications  submitted  pursuant  to  this  paragraph  must  be  filed  in  accordance  with  the  rules  governing  other  applications  for 
221
 Federal  Communications  Commission  FCC  04-  168 
 222 
 commercial  channels,  and  will  be  processed  in  accordance  with  those  rules.  Grant  of  requests  submitted  pursuant  to  this  paragraph  is  subject  to  the  following  conditions: 
 (i)  A  licensee  that  modifies  its  license  to  authorize  commercial  operations  will  not  be  authorized  to  obtain  additional  800  MHz  Business/  Industrial/  Land  Transportation  category  channels  for  sites  located 
 within  113  km  (70  mi.)  of  the  station  for  which  the  license  was  modified,  for  a  period  of  one  year  from  the  date  the  license  is  modified.  This  provision  applies  to  the  licensee,  its  controlling  interests  and 
 their  affiliates,  as  defined  in  1.2110  of  this  chapter. 
 (ii)  With  respect  to  licenses  the  initial  application  for  which  was  filed  on  or  after  November  9,  2000,  requests  submitted  pursuant  to  paragraph  (e)(  2)  of  this  section  may  not  be  filed  until  five  years 


 after  the  date  of  the  initial  license  grant.  In  the  case  of  a  license  that  is  modified  on  or  after  November  9,  2000  to  add  800  MHz  Business/  Industrial/  Land  Transportation  frequencies  or  to  add  or  relocate 
 base  stations  that  expand  the  licensee's  the  interference  contour,  requests  submitted  pursuant  to  paragraph  (e)(  2)  of  this  section  for  these  frequencies  or  base  stations  may  not  be  filed  until  five  years 
 after  such  modification. 
 *  *  *  *  * 
 (f)  Licensees  of  channels  in  the  Business/  Industrial/  Land  Transportation  Categories  in  the  896  901/  935-  940  MHz  bands  may  request  a  modification  of  the  license,  see    1.947  of  this  part,  to 


 authorize  use  of  the  channels  for  commercial  operation.  The  licensee  may  also,  at  the  same  time,  or  thereafter,  seek  authorization  to  transfer  or  assign  the  license,  see    1.948  of  this  part,  to  any  person 
 eligible  for  licensing  in  the  General  or  SMR  categories.  Applications  submitted  pursuant  to  this  paragraph  must  be  filed  in  accordance  with  the  rules  governing  other  applications  for  commercial 
 channels,  and  will  be  processed  in  accordance  with  those  rules. 
 (g)  Applications  for  Public  Safety  systems  (both  trunked  and  conventional)  in  the  806  809/  851  854  MHz  bands  will  be  assigned  and  protected  based  on  the  criteria  established  in  the  appropriate 


 regional  plan.  See  90.16  and  the  Report  and  Order  in  General  Docket  87  112. 
 (h)  Channel  numbers  511  520,  551  560,  591  600,  631  640,  and  671  680  are  allocated  for  Basic  Exchange  Telecommunications  Radio  Service  as  described  in    22.757  of  this  chapter.  NOTE:  the 


 FCC  has  proposed  to  remove  these  channels  from  the  rural  radiotelephone  service  in  WT  Docket  No.  03-  103  (FCC  03-  95)  released  April  28,  2003  (68  FR  4403)  which  is  pending. 


 *  *  *  *  * 
 33.  The  text  in  paragraph  (d)  of  Section  90.629  is  removed  because  the  Business  and  Industrial/  Transportation  categories  have  been  combined  into  one  pool. 


   90.629  Extended  implementation  period. 
 *  *  *  *  * 
 (d)  [Reserved] 
 *  *  *  *  * 
 34.  Paragraph  (b)  of  Section  90.631  is  amended  to  reflect  the  interleaved  portion  of  the  800  MHz  band  after  band  reconfiguration  and  to  remove  references  to  Spectrum  Block  D  which  will  no  longer  exist 


 after  band  reconfiguration. 
222
 Federal  Communications  Commission  FCC  04-  168 
 223 
   90.631  Trunked  systems  loading,  construction  and  authorization  requirements. 
 *  *  *  *  * 
 (b)  Each  applicant  for  a  non-  SMR  trunked  system  must  certify  that  a  minimum  of  seventy  (70)  mobiles  for  each  channel  authorized  will  be  placed  into  operation  within  five  (5)  years  of  the  initial 


 license  grant.  Except  for  SMR  systems  licensed  in  the  809  816/  854  861  MHz  band  and  as  indicated  in  paragraph  (i)  of  this  section,  if  at  the  end  of  five  (5)  years  a  trunked  system  is  not  loaded  to  the 
 prescribed  levels  and  all  channels  in  the  licensee's  category  are  assigned  in  the  system's  geographic  area,  authorizations  for  trunked  channels  not  loaded  to  seventy  (70)  mobile  stations  cancels 
 automatically  at  a  rate  that  allows  the  licensee  to  retain  one  channel  for  every  one  hundred  (100)  mobiles  loaded,  plus  one  additional  channel.  If  a  trunked  system  has  channels  from  more  than  one 
 category,  General  Category  channels  are  the  first  channels  considered  to  cancel  automatically.  All  non-  SMR  licensees  initially  authorized  before  June  1,  1993,  that  are  within  their  original  license  term, 
 or  SMR  licensees  that  are  within  the  term  of  a  two-  year  authorization  granted  in  accordance  with  paragraph  (i)  of  this  section,  are  subject  to  this  condition.  A  licensee  that  has  authorized  channels 
 cancelled  due  to  failure  to  meet  the  above  loading  requirements  will  not  be  authorized  additional  channels  to  expand  that  same  system  for  a  period  of  six  months  from  the  date  of  cancellation. 


 *  *  *  *  * 
 35.  Paragraph  (g)  of  Section  90.645  is  amended  to  reflect  the  interleaved  portion  of  the  800  MHz  band  after  band  reconfiguration. 


   90.645  Permissible  operations. 
 *  *  *  *  * 
 (g)  Up  to  five  (5)  contiguous  809  816/  854  861  band  channels  as  listed  in    90.615,  90.617,  and  90.619  may  be  authorized  after  justification  for  systems  requiring  more  than  the  normal  single  channel 


 bandwidth.  If  necessary,  licensees  may  trade  channels  amongst  themselves  in  order  to  obtain  contiguous  frequencies.  Notification  of  such  proposed  exchanges  shall  be  made  to  the  appropriate 
 frequency  coordinator(  s)  and  to  the  Commission  by  filing  an  application  for  license  modification. 
 *  *  *  *  * 
 36.  The  following  sections  are  added  immediately  after  the  text  of  Section  90.671: 


 PROCEDURES  AND  PROCESS  -  UNACCEPTABLE  INTERFERENCE 
   90.672  Unacceptable  interference  to  non-  cellular  800  MHz  licensees  from  ESMR  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  will  be  deemed  to  occur  when  the  below  conditions  are  met: 
 (1)  A  transceiver  at  a  site  at  which  interference  is  encountered: 
 (i)  Is  in  good  repair  and  operating  condition,  and  is  receiving: 
 (A)  A  median  desired  signal  of  -104  dBm  or  higher,  as  measured  at  the  R.  F.  input  of  the  receiver  of  a  mobile  unit;  or 
223
 Federal  Communications  Commission  FCC  04-  168 
 224 
 (B)  A  median  desired  signal  of  -101  dBm  or  higher,  as  measured  at  the  R.  F.  input  of  the  receiver  of  a  portable  i.  e.  hand-  held  unit;  and,  either 
 (ii)  Is  a  voice  transceiver: 
 (A)  with  manufacturer  published  performance  specifications  for  the  receiver  section  of  the  transceiver  equal  to,  or  exceeding,  the  minimum  standards  set  out  in  Section  (b),  below; 


 and; 
 (B)  Receiving  an  undesired  signal  or  signals  which  cause  the  measured  Carrier  to  Noise  plus  Interference  (C/(  I+  N))  ratio  of  the  receiver  section  of  said  transceiver  to  be  less  than  20  dB, 


 or, 
 (iii)  Is  a  non-  voice  transceiver  receiving  an  undesired  signal  or  signals  which  cause  the  measured  bit  error  rate  (BER)  (or  some  comparable  specification)  of  the  receiver  section  of  said  transceiver  to  be 


 more  than  the  value  reasonably  designated  by  the  manufacturer. 
 (2)  Provided,  however,  that  if  the  receiver  section  of  the  mobile  or  portable  voice  transceiver  does  not  conform  to  the  standards  set  out  in  paragraph  (b),  below,  then  that  transceiver  shall  be  deemed 


 subject  to  unacceptable  interference  only  at  sites  where  the  median  desired  signal  satisfies  the  applicable  threshold  measured  signal  power  in  paragraphs  (a)(  1)(  i)  after  an  upward  adjustment  to 
 account  for  the  difference  in  receiver  section  performance.  The  upward  adjustment  shall  be  equal  to  the  increase  in  the  desired  signal  required  to  restore  the  receiver  section  of  the  subject  transceiver  to 
 the  20  dB  C/(  I+  N)  ratio  of  paragraph  (a)(  1)(  iv)(  a)  above.  The  adjusted  threshold  levels  shall  then  define  the  minimum  measured  signal  power(  s)  in  lieu  of  paragraphs  (a)  (1)  (i)  at  which  the  licensee 
 using  such  non-  compliant  transceiver  is  entitled  to  interference  protection. 
 (b)  Minimum  Receiver  Requirements.  Voice  transceivers  capable  of  operating  in  the  806-  824  MHz  portion  of  the  800  MHz  band  shall  have  the  following  minimum  performance  specifications  in 


 order  for  the  system  in  which  such  transceivers  are  used  to  claim  entitlement  to  full  protection  against  unacceptable  interference.  (See  paragraph  (a)  (2)  above.) 


 (1)  Voice  units  intended  for  mobile  use:  75  dB  intermodulation  rejection  ratio;  75  dB  adjacent  channel  rejection  ratio;  -116  dBm  reference  sensitivity. 


 (2)  Voice  units  intended  for  portable  use:  70  dB  intermodulation  rejection  ratio;  70  dB  adjacent  channel  rejection  ratio;  -116  dBm  reference  sensitivity. 
   90.673  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  licensee  in  the  800  MHz 


 band,  as  defined  in  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  this  chapter.  This  strict  responsibility  obligation 
 applies  to  all  forms  of  interference,  including  out-  of-  band  emissions  and  intermodulation 
 (b)  Joint  and  Several  Responsibility.  If  two  or  more  licensees  knowingly  or  unknowingly,  directly  or  indirectly,  cause  or  contribute  to  causing  unacceptable  interference  to  a  non-  cellular 


 licensee  in  the  800  MHz  band,  as  defined  in  this  chapter,  such  licensees  shall  be  jointly  and  severally  responsible  for  abating  interference,  with  full  cooperation  and  utmost  diligence,  in  the  shortest 
 practicable  time.  This  joint  and  several  responsibility  rule  requires  interfering  licensees  to  consider  all 
224
 Federal  Communications  Commission  FCC  04-  168 
 225 
 feasible  interference  abatement  measures,  including,  but  not  limited  to,  the  remedies  specified  in  the  interference  resolution  procedures  set  forth  in  this  chapter.  This  joint  and  several  responsibility  rule 
 applies  to  all  forms  of  interference,  including  out-  of-  band  emissions  and  intermodulation 
 (1)  This  joint  and  several  responsibility  rule  requires  interfering  licensees  to  consider  all  feasible  interference  abatement  measures,  including,  but  not  limited  to,  the  remedies  specified  in  the 


 interference  resolution  procedures  set  forth  in    90.674(  c)  of  this  chapter.  This  joint  and  several  responsibility  rule  applies  to  all  forms  of  interference,  including  out-  of-  band  emissions  and 
 intermodulation. 
 (2)  Any  licensee  that  can  show  that  its  signal  does  not  directly  or  indirectly,  cause  or  contribute  to  causing  unacceptable  interference  to  a  non-  cellular  licensee  in  the  800  MHz  band,  as  defined  in  this 


 chapter,  shall  not  be  held  responsible  for  resolving  unacceptable  interference.  Notwithstanding,  any  licensee  that  receives  an  interference  complaint  from  a  public  safety/  CII  licensee  shall  respond  to  such 
 complaint  consistent  with  the  interference  resolution  procedures  set  forth  in  this  chapter. 
   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  harmful  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. 
 (1)  The  initial  notification  of  interference  shall  include  the  following  information  on  interference: 
 (i)  the  specific  geographical  location  where  the  interference  occurs,  and  the  time  or  times  at  which  the  interference  occurred  or  is  occurring; 


 (ii)  a  description  of  its  scope  and  severity,  including  its  source,  if  known; 
 (iii)  the  relevant  Commission  licensing  information  of  the  party  suffering  the  interference;  and 


 (iv)  a  single  point  of  contact  for  the  party  suffering  the  interference. 
 (2)  ESMR  licensees,  in  conjunction  with  Part  22  Cellular  Radiotelephone  licensees,  shall  establish  an  electronic  means  of  receiving  the  initial  notification  described  in  subsection  (a)(  1)  above.  The 
 electronic  system  must  be  designed  so  that  all  appropriate  800  MHz  ESMR  and  Part  22  Cellular  Radiotelephone  licensees  can  be  contacted  about  the  interference  incident  with  a  single  notification. 
 The  electronic  system  for  receipt  of  initial  notification  of  interference  complaints  must  be  operating  no  later  than  [Thirty  days  after  effective  date  of  Report  and  Order]. 


 (3)  ESMR  licensees  must  respond  to  the  initial  notification  described  in  paragraph  (a)(  1)  of  this  section,  as  soon  as  possible  and  no  later  than  24  hours  of  receipt  of  notification  from  a  public 
 safety/  CII  licensee.  This  response  time  may  be  extended  to  48  hours  after  receipt  from  other  non-cellular  licensees  provided  affected  communications  on  these  systems  are  not  safety  related. 


 (b)  Interference  Analysis.  ESMR  licensees    who  receive  an  initial  notification  described  in  paragraph  (a)  above    shall  perform  a  timely  analysis  of  the  interference  to  identify  the  possible 
 source.  Immediate  on-  site  visits  may  be  conducted  when  necessary  to  complete  timely  analysis.  Interference  analysis  must  be  completed  and  corrective  action  initiated  within  48  hours  of  the  initial 
 complaint  from  a  public  safety/  CII  licensee.  This  response  time  may  be  extended  to  96  hours  after  the 
225
 Federal  Communications  Commission  FCC  04-  168 
 226 
 initial  complaint  from  other  non-  cellular  licensees  provided  affected  communications  on  these  systems  are  not  safety  related.  Corrective  action  may  be  delayed  if  the  affected  licensee  agrees  in  writing 
 (which  may  be,  but  is  not  required  to  be,  recorded  via  e-  mail  or  other  electronic  means)  to  a  longer  period. 


 (c)  Mitigation  Steps.  (1)  All  ESMR  and  Part  22  Cellular  Radiotelephone  licensees  who  are  responsible  for  causing  unacceptable  interference  shall  take  all  affirmative  measures  to  resolve  such 
 interference.  ESMR  licensees  found  to  contribute  to  harmful  interference,  as  defined  in    90.672,  shall  resolve  such  interference  in  the  shortest  time  practicable.  ESMR  and  Part  22  Cellular  Radiotelephone 
 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  involved  ESMR  and/  or  Part  22  Cellular  Radiotelephone 
 licensees,  whose  affirmative  measures  may  include,  but  not  be  limited  to,  the  following  techniques: 
 (i)  increasing  the  desired  power  of  the  public  safety  signal; 


 (ii)  decreasing  the  power  of  the  ESMR  and/  or  Part  22  Cellular  Radiotelephone  signal; 
 (iii)  modifying  the  ESMR  and/  or  Part  22  Cellular  Radiotelephone  systems  antenna  height; 
 (iv)  modifying  the  ESMR  and/  or  Part  22  Cellular  Radiotelephone  system  antenna  characteristics; 


 (iv)  incorporating  filters  into  ESMR  and/  or  Part  22  Cellular  Radiotelephone  system  transmission  equipment; 
 (v)  permanently  changing  ESMR  and/  or  Part  22  Cellular  Radiotelephone  system  frequencies;  and 
 (vi)  supplying  interference-  resistant  receivers  to  the  affected  public  safety  licensee(  s).  If  this  technique  is  used,  in  all  circumstances,  the  ESMR  and/  or  Part  22  Cellular  Radiotelephone 
 licensees  shall  be  responsible  for  all  costs  thereof. 
 (2)  Whenever  short-  term  interference  abatement  measures  prove  inadequate,  the  affected  licensee  shall,  consistent  with  but  not  compromising  safety,  make  all  necessary  concessions  to  accepting 
 interference  until  a  longer-  term  remedy  can  be  implemented. 
 (3)  Discontinuing  operations  when  clear  and  imminent  danger  exists.  When  a  public  safety  licensee  determines  that  a  continuing  presence  of  interference  constitutes  a  clear  and  imminent  danger 


 to  life  or  property,  the  licensee  causing  the  interference  must  discontinue  the  associated  operation  immediately,  until  a  remedy  can  be  identified  and  applied.  The  determination  that  a  continuing 
 presence  exists  that  constitutes  a  clear  and  imminent  danger  to  life  or  property,  must  be  made  by  written  statement  that: 


 (i)  is  in  the  form  of  a  declaration,  notarized  affidavit,  or  statement  under  penalty  or  perjury,  from  an  officer  or  executive  of  the  affected  public  safety  licensee; 


 (ii)  thoroughly  describes  the  basis  of  the  claim  of  clear  and  imminent  danger; 
 (iii)  was  formulated  on  the  basis  of  either  personal  knowledge  or  belief  after  due  diligence; 
226
 Federal  Communications  Commission  FCC  04-  168 
 227 
 (iv)  is  not  proffered  by  a  contractor  or  other  third  party;  and 
 (v)  has  been  approved  by  the  Chief  of  the  Wireless  Telecommunication  Bureau  or  other  designated  Commission  official.  Prior  to  the  authorized  official  making  a  determination  that  a 
 clear  and  imminent  danger  exists,  the  associated  written  statement  must  be  served  by  hand-delivery  or  receipted  fax  on  the  applicable  offending  licensee,  with  a  copy  transmitted  by  the 
 fastest  available  means  to  the  Washington,  D.  C.  office  of  the  Commissions  Wireless  Telecommunications  Bureau. 


   90.675  Information  exchange. 
 (a)  Prior  Coordination.  Public  safety/  CII  licensees  may  notify  an  ESMR  or  Part  22  Cellular  Radiotelephone  licensee  that  they  wish  to  receive  prior  notification  of  the  activation  or  modification  of 


 ESMR  or  Part  22  Cellular  Radiotelephone  cell  sites  in  their  area.  Thereafter,  the  ESMR  or  Part  22  Cellular  Radiotelephone  licensee  must  provide  the  following  information  to  the  public  safety/  CII 
 licensee  at  least  10  business  days  before  a  new  cell  site  is  activated  or  an  existing  cell  site  is  modified: 
 (1)  location; 


 (2)  effective  radiated  power; 
 (3)  antenna  height; 
 (4)  channels  available  for  use. 
 (b)  Purpose  of  Prior  Coordination.  The  coordination  of  cell  sites  is  for  informational  purposes  only:  public  safety/  CII  licensees  are  not  afforded  the  right  to  accept  or  reject  the  activation  of  a 
 proposed  cell  or  to  unilaterally  require  changes  in  its  operating  parameters.  The  principal  purposes  of  notification  are  to:  (a)  allow  a  public  safety/  CII  licensee  to  advise  the  ESMR  or  Part  22  Cellular 
 Radiotelephone  licensee  whether  it  believes  a  proposed  cell  will  generate  unacceptable  interference;  (b)  permit  ESMR  or  Part  22  Cellular  Radiotelephone  licensees  to  make  voluntary  changes  in  cell 
 parameters  when  a  public  safety  licensee  alerts  them  to  possible  interference;  and  (c)  rapidly  identify  the  source  if  interference  is  encountered  when  the  cell  is  activated. 


 (c)  Public  Safety  Information  Exchange.  (1)  Upon  request  by  an  ESMR  or  Part  22  Cellular  Radiotelephone  licensee,  public  safety/  CII  licensees  who  operate  radio  systems  in  the  806-  824/  851- 
 869  MHz  shall  provide  the  operating  parameters  of  their  radio  system  to  the  ESMR  or  Part  22  Cellular  Radiotelephone  licensee. 


 (2)  Public  safety  licensees  who  perform  the  information  exchange  described  above  must  notify  the  appropriate  ESMR  and  Part  22  Cellular  Radiotelephone  licensees  prior  to  any  technical  changes  to 
 their  radio  system. 
   90.676  Transition  administrator  for  reconfiguration  of  the  806-  824/  851-  869  MHz  band  in  order  to  separate  cellular  systems  from  non-  cellular  systems. 


 The  Transition  Administrator  will  be  an  independent  party  with  no  financial  interest  in  any  800  MHz  licensee;  and  will  be  selected  by  a  committee  representative  of  800  MHz  licensees.  The 
 Transition  Administrator  will  serve  both  a  ministerial  role  and  a  function  similar  to  a  special  master  in  a  judicial  proceeding. 


 (a)  The  duties  of  the  Transition  Administrator  will  include,  but  not  be  limited  to: 
227
 Federal  Communications  Commission  FCC  04-  168 
 228 
 (1)  Obtaining  estimates  from  licensees  regarding  the  cost  of  reconfiguring  their  systems  and  ensuring  that  estimates  contain  a  firm  work  schedule.  The  Transition  Administrator  will  retain 
 copies  of  all  estimates  and  make  them  available  to  the  Commission  on  request. 
 (2)  Mediating  disputes  regarding  cost  estimates  for  reconfiguring  a  system. 
 (3)  Issuing  the  Draw  Certificate  to  authorize  and  instruct  the  Letter  of  Credit  Trustee  to  draw  down  on  the  Letter  of  Credit  to  pay  relocation  costs  in  connection  with  reconfiguring  a  licensees 


 system. 
 (4)  Establishing  a  relocation  schedule  on  a  NPSPAC  region-  by-  region  basis,  prioritizing  the  regions  on  the  basis  of  population.  However,  should  a  given  region  be  encountering  unusually 


 severe  amounts  of  unacceptable  interference,  that  region  may  be  moved  up  in  priority.  Any  party  disputing  such  a  change  in  priority  may  refer  the  matter  to  the  Chief  of  the  Public  Safety  and 
 Critical  Infrastructure  Division,  who  hereby  is  delegated  the  authority  to  resolve  such  disputes.  The  Transition  Administrator  may  direct  that  adjoining  regions  be  reconfigured  simultaneously 
 when  conditions  so  require. 
 (5)  The  Transition  Administrator  will  coordinate  relocation  of  a  NPSPAC  Regions  NPSPAC  channels  with  the  relevant  Regional  Planning  Committee(  s)  prior  to  commencing  band 


 reconfiguration  in  a  NPSPAC  Region. 
 (b)  Once  band  reconfiguration  commences  in  a  given  NPSPAC  Region,  the  Transition  Administrator  will; 


 (1)  Monitor  the  retuning  schedule  and  resolve  any  schedule  delays  or  refer  same  to  the  Public  Safety  and  Critical  Infrastructure  Division  for  resolution; 
 (2)  Coordinate  with  adjoining  NPSPAC  Regions  to  ensure  that  interference  is  not  being  caused  to  their  existing  facilities  from  relocated  stations; 
 (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; 


 (4)  Provide  to  the  Public  Safety  and  Critical  Infrastructure  Division,  on  the  anniversary  of  [Effective  date  of  Report  and  Order],  an  audited  statement  of  relocation  funds  expended  to  date, 
 including  salaries  and  expenses  of  Transition  Administrator; 
 (5)  Facilitate  resolution  of  disputes  by  mediation;  or  referral  of  the  parties  to  alternative  dispute  resolution  services; 


 (c)  The  Transition  Administrator  may  not  serve  as  the  repository  of  funds  used  in  band  reconfiguration,  excepting  such  sums  as  Nextel  may  pay  for  the  Transition  Administrators  services. 
 Moreover,  the  Transition  Administrator  will  not  be  certified  by  the  Commission  as  a  frequency  coordinator. 


   90.677  Reconfiguration  of  the  806-  824/  851-  869  MHz  band  in  order  to  separate  cellular  systems  from  non-  cellular  systems. 
228
 Federal  Communications  Commission  FCC  04-  168 
 229 
 In  order  to  facilitate  reconfiguration  of  the  806-  824/  851-  869  MHz  band  (  800  MHz  band)  to  separate  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: 
 (a)  Within  thirty  days  of  Commission  approval  of  the  Transition  Administrator,  the  Transition  Administrator  described  in    90.676  will  provide  the  Commission  with  a  schedule  detailing  when  band 


 reconfiguration  shall  commence  for  each  NPSPAC  Region.  The  plan  should  also  detail    by  NPSPAC  Region    which  relocation  option  each  non-  Nextel  ESMR  licensees  has  chosen.  The  Chief  of  the 
 Public  Safety  and  Critical  Infrastructure  Division  of  the  Wireless  Telecommunications  Bureau  will  finalize  and  approve  such  a  plan.  The  schedule  shall  provide  for  completion  of  band  reconfiguration 
 in  no  more  than  thirty-  six  months  following  release  of  a  Public  Notice  announcing  the  start  date  of  reconfiguration  in  the  first  NPSPAC  region.  Relocation  will  commence  according  to  the  schedule  set 
 by  the  Transition  Administrator  but  all  systems  must  have  commenced  reconfiguration  within  thirty  months  of  release  of  a  Public  Notice  announcing  the  start  date  of  reconfiguration  in  the  first  NPSPAC 
 region. 
 (b)  Voluntary  negotiations.  Thirty  days  before  the  start  date  for  each  NPSPAC  region,  the  Chief  of  the  Public  Safety  and  Critical  Infrastructure  Division  of  the  Wireless  Telecommunications  Bureau 


 will  issue  a  Public  Notice  initiating  a  three-  month  voluntary  negotiation  period.  During  this  voluntary  negotiation  period,  Nextel  and  all  incumbents  may  negotiate  any  mutually  agreeable  relocation 
 agreement.  Nextel  and  relocating  incumbents  may  agree  to  conduct  face-  to-  face  negotiations  or  either  party  may  elect  to  communicate  with  the  other  party  through  the  Transition  Administrator. 


 (c)  Mandatory  negotiations.  If  no  agreement  is  reached  by  the  end  of  the  voluntary  period,  a  three-  month  mandatory  negotiation  period  will  begin  during  which  both  Nextel  and  the  incumbents 
 must  negotiate  in  good  faith.  Nextel  and  relocating  incumbents  may  agree  to  conduct  face-  to-  face  negotiations  or  either  party  may  elect  to  communicate  with  the  other  party  through  the  Transition 
 Administrator.  All  parties  are  charged  with  the  obligation  of  utmost  good  faith  in  the  negotiation  process.  Among  the  factors  relevant  to  a  good-  faith  determination  are:  (i)  whether  the  party 
 responsible  for  paying  the  cost  of  band  reconfiguration  has  made  a  bona  fide  offer  to  relocate  the  incumbent  to  comparable  facilities;  (ii)  the  steps  the  parties  have  taken  to  determine  the  actual  cost  of 
 relocation  to  comparable  facilities;  and  (iii)  whether  either  party  has  unreasonably  withheld  information,  essential  to  the  accurate  estimation  of  relocation  costs  and  procedures,  requested  by  the 
 other  party.  The  Transition  Administrator  may  schedule  mandatory  settlement  negotiations  and  mediation  sessions  and  the  parties  must  conform  to  such  schedules. 


 (d)  Transition  Administrator.  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 
 mediate  and  attempt  to  resolve  them  within  thirty  working  days.  If  disputed  issues  remain  thirty  days  after  the  end  of  the  mandatory  negotiation  period;  the  Transition  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. 
 (e)  Waiver  Requests.  Incumbents  who  wish  not  to  relocate  according  to  the  schedule  may  petition  the  Commission  for  a  waiver  of  the  relocation  obligation.  Such  a  waiver  would  only  be  granted  on  a 


 strict  non-  interference  basis. 
 (f)  Comparable  Facilities.  The  replacement  system  provided  to  an  incumbent  must  be  at  least  equivalent  to  the  existing  800  MHz  system  with  respect  to  the  four  factors  described  in    90.699(  d). 
229
 Federal  Communications  Commission  FCC  04-  168 
 230 
 (g)  Information  Exchange.  Absent  agreement  between  parties,  the  Transition  Administrator  will  be  responsible  for  determining  the  information  that  relocating  incumbents  must  supply  in  support  of  a 
 relocation  agreement. 
 (h)  The  relevant  Regional  Planning  Committee  shall  be  informed  of  any  proposed  changes  to  any  NPSPAC  channel. 


 *  *  *  *  * 
 37.  The  heading  above  Section  90.681  is  amended  to  describe  the  portion  of  the  band  where  EA-based  SMR  systems  may  occupy  after  band  reconfiguration.  The  cross  reference  in  Section  90.681  is 


 updated  as  follows: 
 POLICIES  GOVERNING  THE  LICENSING  AND  USE  OF  EA-  BASED  SMR  SYSTEMS  IN  THE  809  824/  851  869  MHZ  BAND 


 Source:  61  FR  6158,  6159,  Feb.  16,  1996,  unless  otherwise  noted. 
   90.681  EA-  based  SMR  service  areas. 
 EA  licenses  in  for  channels  711  through  830  and  Spectrum  Blocks  A  through  V  listed  in  Tables  4  and  5  of  90.617  are  available  in  175  Economic  Areas  (EAs)  as  defined  in  90.7. 


 38.  Paragraph  (a)  of  Section  90.683  is  amended  to  reflect  the  portion  of  the  band  where  EA-  based  SMR  systems  may  occupy  after  band  reconfiguration. 
   90.683  EA-  based  SMR  system  operations. 
 (a)  EA-  based  licensees  authorized  in  the  809  824/  854  869  MHz  band  pursuant  to  90.681  may  construct  and  operate  base  stations  using  any  of  the  base  station  frequencies  identified  in  their 


 spectrum  block  anywhere  within  their  authorized  EA,  provided  that: 
 *  *  *  *  * 
 39.  Paragraphs  (a)  and  (b)  of  Section  90.685  are  amended  to  reflect  the  portion  of  the  band  where  EA-  based  SMR  systems  may  occupy  after  band  reconfiguration.  References  to  EA  Block  D  are  also 


 removed  since  this  block  will  no  longer  exist  after  band  reconfiguration. 
   90.685  Authorization,  construction  and  implementation  of  EA  licenses. 
 (a)  EA  licenses  in  the  809  824/  854  869  MHz  band  will  be  issued  for  a  term  not  to  exceed  ten  years.  Additionally,  EA  licensees  generally  will  be  afforded  a  renewal  expectancy  only  for  those 


 stations  put  into  service  after  August  10,  1996. 
 (b)  EA  licensees  in  the  809  824/  854  869  MHz  band  must,  within  three  years  of  the  grant  of  their  initial  license,  construct  and  place  into  operation  a  sufficient  number  of  base  stations  to  provide 


 coverage  to  at  least  one-  third  of  the  population  of  its  EA-  based  service  area.  Further,  each  EA  licensee  must  provide  coverage  to  at  least  two-  thirds  of  the  population  of  the  EA-  based  service  area  within  five 
 years  of  the  grant  of  their  initial  license.  Alternatively,  EA  licensees  in  Channel  blocks  G  through  V  in  the  809  824/  854  869  MHz  band  must  provide  substantial  service  to  their  markets  within  five  years  of 
 the  grant  of  their  initial  license.  Substantial  service  shall  be  defined  as:  Service  which  is  sound,  favorable,  and  substantially  above  a  level  of  mediocre  service. 


 *  *  *  *  * 
230
 Federal  Communications  Commission  FCC  04-  168 
 231 
 40.  Section  90.687  is  updated  to  reflect  the  portion  of  the  band  where  incumbent  SMR  licensees  may  remain  after  band  reconfiguration.  Cross  references  are  also  updated. 
   90.687  Special  provisions  regarding  assignments  and  transfers  of  authorizations  for  incumbent  SMR  licensees  in  the  809  824/  854  869  MHz  band. 
 An  SMR  license  initially  authorized  on  any  of  the  channels  listed  in  Table  4  and  5  of  90.617  of  this  part  may  transfer  or  assign  its  channel(  s)  to  another  entity  subject  to  the  provisions  of  1.948  of 
 this  chapter  and  90.609(  b)  of  this  part.  If  the  proposed  transferee  or  assignee  is  the  EA  licensee  for  the  spectrum  block  to  which  the  channel  is  allocated,  such  transfer  or  assignment  presumptively  will 
 be  deemed  to  be  in  the  public  interest.  However,  such  presumption  will  be  rebuttable. 
 *  *  *  *  * 
 41.  Paragraphs  (a),  (c),  and  (d)(  2)  of  Section  90.693  are  updated  to  reflect  the  portion  of  the  band  where  grandfathered  licensees  may  remain  after  band  reconfiguration.  References  to  spectrum  blocks 


 which  will  no  longer  exist  after  band  reconfiguration  are  also  removed. 
   90.693  Grandfathering  provisions  for  incumbent  licensees. 
 (a)  General  provisions.  These  provisions  apply  to  incumbent  licensees,  all  800  MHz  licensees  authorized  in  the  809  821/  854  866  MHz  band  who  obtained  licenses  or  filed  applications  on  or  before 


 December  15,  1995. 
 *  *  *  *  * 
 (c)  Special  provisions  for  spectrum  blocks  G  through  V.  Incumbent  licensees  that  have  received  the  consent  of  all  affected  parties  or  a  certified  frequency  coordinator  to  utilize  an  18  dBV/  m  signal 


 strength  interference  contour  shall  have  their  service  area  defined  by  their  originally-  licensed  36  dBV/  m  field  strength  contour  and  their  interference  contour  shall  be  defined  as  their  originally-licensed 
 18  dBV/  m  field  strength  contour.  The  originally-  licensed  contour  shall  be  calculated  using  the  maximum  ERP  and  the  actual  HAAT  along  each  radial.  Incumbent  licensees  seeking  to 
 utilize  an  18  dBV/  m  signal  strength  interference  contour  shall  first  seek  to  obtain  the  consent  of  affected  co-  channel  incumbents.  When  the  consent  of  a  co-  channel  licensee  is  withheld,  an  incumbent 
 licensee  may  submit  to  any  certified  frequency  coordinator  an  engineering  study  showing  that  interference  will  not  occur,  together  with  proof  that  the  incumbent  licensee  has  sought  consent. 
 Incumbent  licensees  are  permitted  to  add,  remove  or  modify  transmitter  sites  within  their  original  18  dBV/  m  field  strength  contour  without  prior  notification  to  the  Commission  so  long  as  their  original 
 18  dBV/  m  field  strength  contour  is  not  expanded  and  the  station  complies  with  the  Commission's  short-  spacing  criteria  in    90.621(  b)(  4)  through  90.621(  b)(  6).  Incumbent  licensee  protection  extends 
 only  to  its  36  dBV/  m  signal  strength  contour.  Pursuant  to  the  minor  modification  notification  procedure  set  forth  in  1.947(  b),  the  incumbent  licensee  must  notify  the  Commission  within  30  days  of 
 any  changes  in  technical  parameters  or  additional  stations  constructed  that  fall  within  the  short-  spacing  criteria.  See  47  CFR  90.621(  b). 


 *  *  *  *  * 
 (d)  *  *  * 
 (2)  Special  Provisions  for  Spectrum  Blocks  G  through  V.  Incumbent  licensees  that  have  received  the  consent  of  all  affected  parties  or  a  certified  frequency  coordinator  to  utilize  an  18  dBV/  m  signal 


 strength  interference  contour  operating  at  multiple  sites  may,  after  grant  of  EA  licenses  has  been  completed,  exchange  multiple  site  licenses  for  a  single  license.  This  single  site  license  will  authorize 
231
 Federal  Communications  Commission  FCC  04-  168 
 232 
 operations  throughout  the  contiguous  and  overlapping  36  dBV/  m  field  strength  contours  of  the  multiple  sites.  Incumbents  exercising  this  license  exchange  option  must  submit  specific  information 
 on  Form  601  for  each  of  their  external  base  sites  after  the  close  of  the  800  SMR  auction.  The  incumbent's  geographic  license  area  is  defined  by  the  contiguous  and  overlapping  18  dBV/  m 
 contours  of  its  constructed  and  operational  external  base  stations  and  interior  sites  that  are  constructed  within  the  construction  period  applicable  to  the  incumbent.  Once  the  geographic  license  is  issued, 
 facilities  that  are  added  within  an  incumbent's  existing  footprint  and  that  are  not  subject  to  prior  approval  by  the  Commission  will  not  be  subject  to  construction  requirements. 


 *  *  *  *  * 
232
 Federal  Communications  Commission  FCC  04-  168 
 233 
 APPENDIX  D:  ENHANCED  BEST  PRACTICES 
 A.  Introduction 
 1.  Enhanced  Best  Practices  have  been  an  effective  tool  in  the  voluntary  interference  abatement  efforts  undertaken  to  date.  The  term  Enhanced  Best  Practices  has  no  precise  definition  but  can  be 


 understood  to  mean  all  effective  means  of  abating  unacceptable  interference  other  than  channel  swaps  or  wholesale  reconfiguration  of  the  band.  The  effort  to  develop  Enhanced  Best  Practices  began  in  2000 
 when  a  team  of  ESMR  and  Cellular  Telephone  licensees,  public  safety  organizations,  private  radio  organizations,  equipment  manufacturers  and  others  produced  the  Best  Practices  Guide.  Those  best 
 practices  have  been  added  to  and  enhanced  in  the  intervening  years,  leading  us  to  characterize  them  today  as  Enhanced  Best  Practices.  We  commend  those  parties  that  urge  that  a  new  Enhanced  Best  Practices 
 Guide  be  prepared  to  update  the  original  document.  Below,  we  discuss  the  principal  techniques  comprehended  by  Enhanced  Best  Practices  and  discuss  their  relative  advantages  and  disadvantages  as 
 reflected  by  our  analysis  of  the  record. 
 B.  Interference  Abatement  at  the  Cell  Site 
 2.  Modification  of  Antenna  Pattern,  Height  and  Orientation.  Commenting  parties  have  observed  that  the  ESMR  and  Cellular  Telephone  licensees  often  employ  cell  antennas  with  significant  minor  lobes 


 in  their  vertical  patterns  mounted  at  very  low  elevations  e.  g.,  twenty-  five  feet  and  tilted  down  so  that  the  main  lobe  of  the  antenna  is  directed  on  the  street,  as  opposed  to  the  horizon.  836  Use  of  such  antennas 
 results  in  a  very  strong,  e.  g.,  -25  dBm,  signal  in  the  immediate  vicinity  and  creates  high  levels  of  OOBE  and  intermodulation  interference  to  nearby  public  safety  receivers.  ESMR  and  Cellular  Telephone 
 interests  claim  that  this  low-  site  cell  configuration  is  necessary  to  prevent  a  cell  from  interfering  with  nearby  cells  operating  on  the  same  frequency,  i.  e.,  that  the  ESMR  or  Cellular  Telephone  operator  uses 
 low-  site  cell  configuration  in  order  to  avoid  interference  internal  to  its  own  system  and  to  improve  in-building  coverage  from  the  cell.  837  However  this  low-  site  cell  configuration  also  greatly  increases  the 
 potential  for  the  cell  to  cause  interference  to  nearby  public  safety  radios.  838  REMEC,  an  antenna  manufacturer,  contends  that  ESMR  and  Cellular  Telephone  licensees  could  substantially  reduce 
 interference  if  the  vertical  patterns  of  their  antennas  distributed  R.  F.  energy  evenly  on  the  ground  as  a  function  of  the  distance  from  the  cell  site.  839  Use  of  such  smooth  pattern  antennas  is  an  Enhanced  Best 
 Practices  that  could  contribute  to  abatement  of  unacceptable  interference. 
 3.  Effective  Radiated  Power  Limitation.  Several  parties  noted  the  correlation  between  the  effective  radiated  power  (ERP)  of  a  cell  and  the  level  of  interference  that  cell  creates.  840  These  parties 


 contend  that  reducing  ERP,  either  system  wide  or  on  a  case-  by-  case  basis,  to  levels  as  low  as  ten  watts 


 836  See  Undated  Letter  from  Allen  Rosenzweig,  REMEC,  Inc.;  Motorola  Comments  at  20. 
 837  See  Best  Practices  Guide  at  7,  Technical  Appendix  to  Island  Cellular  Comments  at  7. 
 838  See  Nextel  Oct.  31,  2003  ex  parte  submission  at  9.  See  also  Motorola  Comments  at  20;  C&  M 
 Comments  at  3. 
 839  REMEC  claims  that  antennas  could  generate  these  patterns  by  approximating  a  cosecant  squared 
 function.  See  Undated  Letter  from  Allen  Rosenzweig,  REMEC,  Inc. 
 840  See,  e.  g.,  Project  39,  Interference  to  Public  Safety  800  MHz  Radio  Systems,  Interim  Report  to  the 
 FCC,  December  24,  2001  at  12-  21,  Best  Practices  at  7-  8;  Motorola  Comments  at  20.  See  also  Alltel,  et  al.,  Comments  at  14;  Alltel,  et  al.,  Reply  Comments  at  31;  Delmarva  P&  L  Reply  Comments  at  22. 
233
 Federal  Communications  Commission  FCC  04-  168 
 234 
 would  remedy  intermodulation  interference  and,  to  a  lesser  extent,  OOBE  interference.  841  However,  ESMR  interests  contend  that  significantly  reducing  ERP  at  a  cell  would  impair  subscriber  service  and 
 necessitate  constructing  additional  cells  in  a  system  to  compensate  for  the  reduced  coverage  of  the  systems  other  cells.  This,  they  aver,  would  only  serve  to  create  additional  interference  in  the  vicinity  of 
 the  new  cells.  842 
 4.  ERP  reduction  can  provide  significant  abatement  of  intermodulation  interference  because,  for  example,  when  third-  order  intermodulation  interference  occurs,  a  three  dB  reduction  in  intermodulation 


 interference  can  be  attained  for  every  one  dB  reduction  in  the  ERP  of  a  contributing  ESMR  or  Cellular  Telephone  channel.  843  However  an  across-  the-  board  reduction  of  the  ERP  of  ESMR  or  Cellular  Telephone 
 systems  to  ten  watts  would  have  serious  consequences  in  the  form  of  impaired  ESMR  or  Cellular  Telephone  service  in  areas  in  which  interference  to  public  safety  systems  is  not  being  caused;  and  because 
 it  would  result  in  coverage  holes  in  existing  systems,  which  holes  would  have  to  be  filled  using  additional  cells  which  themselves  could  be  a  source  of  intermodulation  or  OOBE  interference. 
 Accordingly,  in  our  accompanying  Report  and  Order  we  decline  to  impose  ERP  limits,  recognizing,  however,  that  ESMR  or  Cellular  Telephone  carriers  may  well  elect  to  reduce  ERP  as  an  Enhanced  Best 
 Practices  to  abate  unacceptable  interference  occurring  at  particular  cells  during  band  reconfiguration  and  thereafter. 


 C.  Limitation  on  Use  of  Low  Sites 
 5.  Low  elevation  of  cell  site  antennas  has  been  the  reported  cause  of  high  on-  the-  street  signal  levels  and  several  parties  argue  that  licensees  should  increase  antenna  height  to  avoid  unacceptable 


 interference.  844  However,  it  is  not  the  differential  path  length  between  high  and  low  sites  that  causes  the  problem.  For  example,  the  path  attenuation  difference  between  a  200  foot  antenna  height  and  a  20  foot 
 antenna  height  is  negligible.  845  Instead,  the  low-  site  problem  most  frequently  arises  from  two  factors.  First,  all  other  things  being  equal,  the  vertical  main  beam  of  a  low-  site  cell  will  fall  closer  to  the  cell  than 
 the  main  beam  of  a  higher  antenna,  846  as  will  minor  lobes  in  the  vertical  pattern  of  the  antenna.  Second,  ESMR  and  cellular  licensees  make  widespread  use  of  mechanical  or  electrical  beam  tilt  which  causes  the 
 vertical  main  beam  of  the  antenna  to  fall  directly  on  the  street  in  the  immediate  vicinity  of  the  cell.  847 


 841  Id. 
 842  See  PSWN  Comments  at  18;  Consensus  Parties  Aug.  7  Ex  Parte  at  40-  41. 
 843  See  Motorola  Interference  Technical  Appendix  to  the  Best  Practices  Guide  at  11. 
 844  See,  e.  g.,  Project  39,  Interference  to  Public  Safety  800  MHz  Radio  Systems,  Interim  Report  to  the 
 FCC,  December  24,  2001  at  12-  21,  Best  Practices  Guide  at  7-  8,  Motorola  Comments  at  20. 
 845  For  example,  at  a  distance  of  305  meters  (1000)  feet  from  a  cell  site,  the  free  space  loss  for  antennas 
 mounted  at  61  meters  (200  feet)  AGL  and  6  meters  (20  feet)  AGL  differs  by  only  0.17  dB,  calculated  as  follows:  The  distance  (D)  over  a  straight  line  from  a  receiving  antenna  to  the  radiation  center  of  the  transmitting  antenna  is 


 defined  for  particular  heights  (H)  by  (D  +  H)  0.5  .  The  path  loss  over  the  distance  (D)  is  defined  by  53.3  +  20  log(  Dmeters)  +  20  log  (FMHz). 


 846  Thus,  for  example,  given  an  antenna  having  a  10  degree  3  dB  beamwidth,  the  main  beam  of  the 
 antenna  will  intersect  the  ground  at  1134  feet  from  the  cell  when  mounted  on  a  200  foot  tower,  but  only  at  113  feet  from  the  cell  when  mounted  on  a  20  foot  tower. 


 847  See  Motorola  Interference  Technical  Appendix  to  Best  Practices  Guide  at  11.  See  also  Motorola 
 Comments  at  20. 
234
 Federal  Communications  Commission  FCC  04-  168 
 235 
 This  appears  to  be  a  design  choice  when  localized  building  penetration  is  important  or  when  the  wide  coverage  characteristic  of  high-  site  cells  with  little  or  any  beam  tilt  is  either  not  required  or  would  impair 
 system  subscriber  capacity  by  limiting  frequency  reuse  in  nearby  cells.  848  Thus,  given  this  correlation  between  low-  site  cells,  especially  those  with  beam  tilted  antennas,  and  interference  to  public  safety  and 
 other  non-  cellular  radios  in  the  vicinity  of  the  cell  it  can  be  concluded  that:  (1)  avoiding  low-  site  cell  configurations  is  an  effective  Enhanced  Best  Practice,  albeit  one  that  can  limit  subscriber  capacity  and 
 building  penetration;  and  (2)  the  low-  site/  high-  site  distinction  is  useful  as  one  means  of  defining  what  constitutes  a  cellular  system  in  the  context  of  800  MHz  technology.  849 


 D.  Filtering  of  Cumulative  OOBE  Interference 
 6.  Several  parties  have  noted  that  a  significant  reduction  in  OOBE  interference  results  when  ESMR  and  Cellular  Telephone  licensees  avoid  the  use  of  devices  known  as  hybrid  combiners.  A 


 combiner,  as  the  name  implies,  feeds  multiple  transmitters  into  a  single  antenna.  Hybrid  combiners  are  not  frequency-  selective,  and  thus  pass  all  frequencies  fed  into  them.  A  cavity  combiner,  by  comparison,  uses 
 frequency-  selective  resonant  cavities  which  pass  individual  channels,  but  reject  noise  that  falls  outside  those  channels,  i.  e.  OOBE.  850  Hybrid  combiners  are  less  expensive  than  cavity  combiners  and  may  be 
 suitable  in  cases  where  OOBE  is  not  likely  to  be  a  problem,  e.  g.  in  high-  site  cells  or  cells  in  which  external  filtering  equipment  is  installed.  The  use  of  cavity  combiners,  alone  or  in  combination  with  outboard  filters 
 is  another  useful  Enhanced  Best  Practice  available  to  ESMR  and  Cellular  Telephone  licensees.  Use  of  cavity  combiners  and  outboard  filters  is  an  Enhanced  Best  Practice  that  can  be  made  proactive,  rather  than 
 reactive;  e.  g.  by  integrating  the  devices  into  system  design  before  unacceptable  interference  develops. 
 E.  Cell  Site  Channel  Selection. 
 7.  Cells  may  be  configured  to  avoid  using  channels  that  can  cause  intermodulation  products  to  fall  on  specific  public  safety  and  other  non-  cellular  800  MHz  channels.  Changing  channels  was  a  remedy 


 initially  discussed  in  the  Best  Practices  Guide  and  often  has  proven  effective  in  addressing  intermodulation  interference  to  public  safety  systems.  851  However,  the  utility  of  the  technique  must  be 
 viewed  against  the  fact  that  restricting  channel  selection  can  impair  the  subscriber  capacity  of  the  ESMR  or  Cellular  Telephone  system.  852  Moreover,  since  the  channels  used  at  cells  change  frequently,  channel 
 changes  sometimes  provide  only  a  temporary  solution  to  an  interference  problem,  especially  when  the  intermodulation  product  is  produced  by  signals  from  both  an  ESMR  cell  and  a  Cellular  Telephone  cell. 
 Moreover,  as  Cellular  Telephone  licensees  convert  from  analog  to  digital  technology  such  as  code  division  multiple  access  (CDMA)  it  may  no  longer  be  possible  to  abate  intermodulation  interference  by 
 changing  the  channels  in  a  cell  or  cells.  853 


 848  See  Best  Practices  Guide  at  7,  Island  SMR  Comments,  Exhibit  A  at  7. 
 849  Thus,  we  have  decided  to  exclude  systems  using  transmitting  antennas  200  feet  above  ground  level  or 
 higher  from  our  definition  of  an  800  MHz  cellular  system.  See  Section  VI.  C.  2.  e  supra. 
 850  See  UTC  Comments  at  19-  20;  Motient  Comments  at  4-  5;  Southern  LINC  Comments  at  20. 


 851  See  Consensus  Parties  Aug  7  Ex  Parte  at  23. 
 852  Id. 
 853  See  e.  g.,  recent  articles  indicating  that  Nextel  is  testing  CDMA  technology  in  the  1.9  GHz  band: 
 http://  phx.  corporate-  ir.  net/  phoenix.  zhtml?  c=  63347&  p=  irol-  newsArticle&  t=  Regular&  id=  492688&,  http://  www.  flarion.  com/  newsroom/  about_  06_  14a_  02.  html  and  Communications  Daily  Feb.  9,  2004  at  9. 
235
 Federal  Communications  Commission  FCC  04-  168 
 236 
 F.  Proper  Operation  of  Cell  Site  Transmitters. 
 8.  Motorola  included  proper  operation  of  base  stations  as  one  of  the  interference  mitigation  techniques  in  its  Technical  Toolbox.  ESMR  and  Cellular  Telephone  base  station  equipment  can 


 malfunction  and  cause  increased  interference,  notably,  excessive  OOBE.  Any  attempt  to  abate  interference  through  application  of  Enhanced  Best  Practices,  or  otherwise,  should  consider  malfunction  of 
 base  station  transmitters  as  a  possible  interference  culprit. 
 G.  Increasing  the  strength  of  the  affected  non-  cellular  signal 
 9.  Improving  the  signal  strength  of  the  desired  signal  is  another  Enhanced  Best  Practice  that  is  frequently  difficult  to  implement.  It  is  clear  that  most  public  safety  agencies  lack  the  resources  to  make 


 immediate  coverage  improvements  to  their  systems.  The  funding  cycle  for  public  safety  systems  often  is  measured  in  multiples  of  years.  It  is  likewise  clear  that  where  coverage  improvements  are  needed  most 
 in  areas  served  by  high  density  ESMR  and  cellular  telephone  systems  the  requisite  additional  frequencies  are  less  likely  to  be  available.  However,  with  the  appropriate  engineering  design,  otherwise  intractable 
 interference  problems  can  sometimes  be  addressed  by  use  of  such  technology  as  simulcasting  and  the  use  of  signal  boosters  to  provide  spot  coverage  in  areas  affected  by  unacceptable  interference. 


 10.  Unacceptable  interference  is  most  frequently  a  function  of  the  ratio  of  the  desired  (non-cellular)  signal  to  the  potentially  interfering  (ESMR  or  Cellular  Telephone)  signal.  From  a  strictly 
 technical  standpoint,  a  licensee  can  achieve  meaningful  improvements  in  its  signal  strength  by  increasing  the  base  station  transmitter  power,  antenna  gain  or  antenna  elevation;  854  or  by  constructing  additional  base 
 stations.  855  From  a  practical  standpoint,  however,  there  are  several  obstacles  to  improving  signal  strength;  the  most  serious  being  cost  and  the  availability  of  frequencies  if  base  stations  are  added.  A  rule  requiring 
 licensees  to  place  a  minimum  predicted  service  contour,  e.  g.  50  dBV/  m,  over  their  desired  coverage  area  has  been  advanced  as  an  effective  interference  abatement  Enhanced  Best  Practice.  Under  such  a  scheme 
 stations  would  be  protected  against  interference  within  that  contour.  856  However,  in  many  circumstances,  this  could  require  800  MHz  non-  cellular  licensees  to  increase  power  by  a  factor  of  ten  or  more;  or  to  resort 
 to  constructing  additional  base  stations.  In  the  accompanying  Report  and  Order  substantially  the  same  interference-  protection  goal  has  been  reached  by  establishing  the  measured,  rather  than  predicted, 
 threshold  signal  level  that  a  public  safety  signal  must  attain  in  areas  in  which  unacceptable  interference  is  encountered  or  predicted. 


 854  See  Best  Practices  Guide  at  12. 
 855  Id. 
 856  See  TIA  Comments  at  4. 
236
 Federal  Communications  Commission  FCC  04-  168 
 237 
 APPENDIX  E:  ILLUSTRATIVE  FORM  OF  LETTER  OF  CREDIT 
 [Subject  to  Issuing  Bank  Requirements] 
 No.  __________ 


 [Date  of  Issuance] 
 [Trustee] 
 [Address] 
 Ladies  and  Gentlemen: 
 We  hereby  establish,  at  the  request  and  for  the  account  of  Nextel  Communications,  Inc.,  in  your  favor,  as  required  under  the  [Report  and  Order  and  Fifth  Report  and  Order  and  Fourth  Memorandum  Opinion  and 
 Order,  and  Order  dated  as  of  __________,  2004]  issued  by  the  Federal  Communications  Commission  (  FCC)  in  the  matter  of  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (the  Order), 
 our  Irrevocable  Letter  of  Credit  No.  _________,  in  the  amount  of  $2,500,000,000  (Two  Billion  Five  Hundred  Million  United  States  Dollars),  expiring  at  the  close  of  banking  business  at  our  office  described  in 
 the  following  paragraph,  on  [the  date  which  is  five  years  from  the  date  of  issuance/  or  the  date  which  is  one  year  from  the  date  of  issuance,  provided  the  Issuing  Bank  includes  an  evergreen  clause  that  provides 
 for  automatic  renewal  unless  the  Issuing  Bank  gives  notice  of  non-  renewal  to  the  Trustee,  with  a  copy  to  the  FCC,  at  least  sixty  days  but  not  more  than  ninety  days  prior  to  the  expiry  thereof],  or  such  earlier  date 
 as  the  Letter  of  Credit  is  terminated  by  the  Trustee  (the  Expiration  Date).  Capitalized  terms  used  herein  but  not  defined  herein  shall  have  the  meanings  accorded  such  terms  in  the  Order. 


 Funds  under  this  Letter  of  Credit  are  available  to  you  against  your  draft  in  the  form  attached  hereto  as  Annex  A,  drawn  on  our  office  described  below,  and  referring  thereon  to  the  number  of  this  Letter  of 
 Credit,  accompanied  by  your  written  and  completed  certificate  signed  by  you  substantially  in  the  form  of  Annex  B-  1  attached  hereto  and,  if  applicable,  the  Transition  Administrators  written  and  completed 
 certificate  signed  by  the  Transition  Administrator  substantially  in  the  form  of  Annex  B-  2  attached  hereto.  Such  draft  and  certificates  shall  be  dated  the  date  of  presentation  or  an  earlier  date,  which  presentation 
 shall  be  made  at  our  office  located  at  [BANK  ADDRESS]  and  shall  be  effected  either  by  personal  delivery  or  delivery  by  a  nationally  recognized  overnight  delivery  service.  We  hereby  commit  and  agree  to  accept 
 such  presentation  at  such  office,  and  if  such  presentation  of  documents  appears  on  its  face  to  comply  with  the  terms  and  conditions  of  this  Letter  of  Credit,  on  or  prior  to  the  Expiration  Date,  we  will  honor  the  same 
 not  later  than  the  first  banking  day  after  presentation  thereof  in  accordance  with  your  payment  instructions.  Payment  under  this  Letter  of  Credit  shall  be  made  by  [check/  wire  transfer  of  Federal  Reserve  Bank  of 
 New  York  funds]  to  the  payee  and  for  the  account  you  designate,  in  accordance  with  the  instructions  set  forth  in  a  draft  presented  in  connection  with  a  draw  under  this  Letter  of  Credit. 


 Partial  drawings  are  permitted  under  this  Letter  of  Credit,  and  the  amount  of  this  Letter  of  Credit  shall  be  reduced  by  each  such  partial  draw  hereunder. 
 This  Letter  of  Credit  shall  be  subject  to  automatic  amendment  by  a  decrease  in  the  amount  available  hereunder  to  the  amount  specified  in  a  Transition  Administrators  certificate  purportedly  signed  by  the 
 Transition  administrator  or,  if  not  an  individual,  by  two  authorized  representatives  of  the  Transition  Administrator,  and  countersigned  by  an  authorized  signatory  of  the  FCC  in  the  form  attached  as  Annex  C, 
 which  amendment  shall  automatically  become  effective  upon  receipt  of  such  certificate. 
237
 Federal  Communications  Commission  FCC  04-  168 
 238 
 This  Letter  of  Credit  shall  be  canceled  and  terminated  upon  receipt  by  us  of  the  Transition  Administrators  certificate  purportedly  signed  by  the  Transition  Administrator  or,  if  not  an  individual,  by  two  authorized 
 representatives  of  the  Transition  Administrator,  and  in  either  case  countersigned  by  an  authorized  signatory  of  the  FCC  in  the  form  attached  as  Annex  D. 


 This  Letter  of  Credit  is  not  transferable  or  assignable  in  whole  or  in  part,  except  that  this  Letter  of  Credit  may  be  assigned  or  transferred  to  any  successor  trustee  succeeding  you  upon  [insert  Issuing  Banks 
 standard  practice  language,  such  as  language  regarding  requirements  for  timely  notification  and  supplemental  documentation.] 


 This  Letter  of  Credit  sets  forth  in  full  the  undertaking  of  the  Issuer,  and  such  undertaking  shall  not  in  any  way  be  modified,  amended,  amplified  or  limited  by  reference  to  any  document,  instrument  or  agreement 
 referred  to  herein,  except  only  the  certificates  and  the  drafts  referred  to  herein  and  the  ISP  (as  defined  below);  and  any  such  reference  shall  not  be  deemed  to  incorporate  herein  by  reference  any  document, 
 instrument  or  agreement  except  for  such  certificates  and  such  drafts  and  the  ISP. 
 This  Letter  of  Credit  shall  be  subject  to,  governed  by,  and  construed  in  accordance  with,  the  International  Standby  Practices  1998,  International  Chamber  of  Commerce  Publication  No.  590  (the  ISP),  which  is 
 incorporated  into  the  text  of  this  Letter  of  Credit  by  this  reference,  and,  to  the  extent  not  inconsistent  therewith,  the  laws  of  the  State  of  New  York,  including  the  Uniform  Commercial  Code  as  in  effect  in  the 
 State  of  New  York.  Communications  with  respect  to  this  Letter  of  Credit  shall  be  addressed  to  us  at  our  address  set  forth  below,  specifically  referring  to  the  number  of  this  Letter  of  Credit. 


 [NAME  OF  BANK]  [BANK  SIGNATURE] 
238
 Federal  Communications  Commission  FCC  04-  168 
 239 
 APPENDIX  E  ANNEX  A 
 Form  of  Draft 
 To:  [Issuing  Bank] 
 DRAWN  ON  LETTER  OF  CREDIT  No:  ______________ 
 AT  SIGHT 
 PAY  TO  THE  ORDER  OF  _________________________________[  insert  name  of 
 Trustee]  BY  [CHECK/  WIRE  TRANSFER  OF  FEDERAL  RESERVE  BANK  OF  NEW 
 YORK] 


 FUNDS  TO:  _____________ 
 _______________ 
 _______________ 
 Account  (__________________________) 
 AS  800  MHz  RELOCATION  and  TRANSITION  PAYMENTS 
 [AMOUNT  IN  WORDS]  DOLLARS  AND  NO/  CENTS 
 $[  AMOUNT  IN  NUMBERS] 
 [TRUSTEE] 


 By:  ________________________________ 
239
 Federal  Communications  Commission  FCC  04-  168 
 240 
 APPENDIX  E  ANNEX  B-  1 
 Draw  Certificate 
 The  undersigned  hereby  certifies  to  [Name  of  Bank]  (the  Bank),  with  reference  to  (a)  Irrevocable  Standby  Letter  of  Credit  No.  [Number]  (the  Letter  of  Credit)  issued  by  the  Bank  in  favor  of  the 
 [Trustee]  and  (b)  [paragraph  332]  of  the  [Report  and  Order  and  Fifth  Report  and  Order  and  Fourth  Memorandum  Opinion  and  Order,  and  Order]  dated  as  of  __________,  2004]  issued  by  the  Federal 
 Communications  Commission  in  the  matter  of  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (the  Order),  pursuant  to  which  Nextel  Communications,  Inc.  (the  LC  Provider)  has 
 provided  the  Letter  of  Credit  (all  capitalized  terms  used  herein  but  not  defined  herein  having  the  meaning  stated  in  the  Order),  that: 


 [i.  The  Transition  Administrator  has  certified  to  the  Trustee  that  pursuant  to  the  Order,  a  payment  in  the  amount  of  $_____  is  appropriate  to  be  made  to  the  Trustee  to  hold  in 
 trust  and  disburse  in  payment  of  the  expenses  for  ________________,  and  further  certifying  that  the  Transition  Administrator  instructs  the  Trustee  to  make  such  payment  via  draw  on  Letter  of  Credit 
 No.  _______;  and 
 ii.  A  copy  of  the  signed  certification  referred  to  in  clause  (i)  above  and  in  the  form  of  Annex  B-  2  to  Letter  of  Credit  No.  _____________,  purportedly  signed  by  or  on  behalf  of  the 


 Transition  Administrator  is  attached  hereto.] 
 OR 
 [The  FCC  has  certified  to  the  Trustee  that  pursuant  to  the  Order  and  the  Commissions  finding  that  Nextel  is  in  material  breach  of  the  terms  of  the  Order,  the  Trustee  is 


 entitled  to  receive  payment  of  $____________________  representing  the  remaining  undrawn  amount  of  Letter  of  Credit  No.  ____________,  to  hold  in  trust  and  disburse  in  accordance  with  the  terms  of 
 the  Order. 
 OR 
 [The  FCC  has  certified  to  the  Trustee  that  given  notice  of  non-  renewal  of  Letter  of  Credit  No.  ______________  and  failure  of  the  account  party  to  obtain  a  satisfactory  replacement 
 thereof,  pursuant  to  the  Order,  the  Trustee  is  entitled  to  receive  payment  of  $_______________  representing  the  remaining  amount  of  Letter  of  Credit  No.  ________________,  to  hold  in  trust  and 
 disburse  pursuant  to  the  Order.] 
 IN  WITNESS  WHEREOF,  the  undersigned  has  executed  this  certificate  as  of  [specify  time  of  day]  on  the  ____  day  of  _____________,  200__. 


 [TRUSTEE  ] 
 By:  _____________________________________  Name: 
 Title: 
240
 Federal  Communications  Commission  FCC  04-  168 
 241 
 APPENDIX  E  ANNEX  B-  2 
 Draw  Certificate  of  Transition  Administrator 
 The  undersigned  hereby  certifies  to  the[  Trustee]  (the  Trustee),  with  reference  to  [paragraph  332  of  the  [Report  and  Order  and  Fifth  Report  and  Order  and  Fourth  Memorandum  Opinion  and  Order,  and 
 Order  dated  as  of  __________,  2004]  issued  by  the  Federal  Communications  Commission  in  the  matter  of  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (the  Order),  pursuant  to 
 which  Nextel  Communications,  Inc.  (the  LC  Provider)  has  provided  the  Letter  of  Credit  (all  capitalized  terms  used  herein  but  not  defined  herein  having  the  meaning  stated  in  the  Order),  that: 


 i.  ____________________________________________[  Name  of  licensee]  is  an  800  MHz  licensee  that  has  obtained  a  quotation  for  [estimated  expenses/  final  expenses]  in  the  amount  of  $ 
 ____________________  in  connection  with  transition  from  ________  [specify  spectrum]  to  _______________  [specify  spectrum]  which  are  appropriately  reimbursable  under  the  Order,  and  such 
 amount  is  appropriately  payable  for  relocation  expenses  on  behalf  of  [Name  of  licensee],  and  [either  (i)  there  has  been  no  dispute  regarding  the  amount  of  such  payment,  or  (ii)  any  dispute  regarding  the 
 amount  of  such  payment  has  been  resolved  in  accordance  with  the  Order],  and 
 ii.  The  undersigned  has  established  and  will  maintain  for  [specify  time  period]  a  file  containing  documents  and  records  that  demonstrate  with  reasonable  specificity  according  to  industry 


 standards  and  [financial  standards  for  expense  documentation  /  other  standards  or  standards  contained  in  the  Order]  conclusions  stated  in  its  certification  in  clause  (i)  above,  and  such  file  shall  be  available  during 
 regular  business  hours  for  inspection  or  audit  by  [who  will  audit  (or  specify  auditors  for)  the  Transition  Administrator?] 


 Based  on  the  foregoing,  the  Transition  Administrator  hereby  directs  the  Trustee  to  draw  on  the  Letter  of  Credit  in  the  amount  and  for  the  benefit  of  the  party  specified  in  clause  (i)  above,  payable  as 
 follows:  [Insert  Payment  Instruction/  payment  instructions  to  follow  in  separate  documentation] 
 IN  WITNESS  WHEREOF,  the  undersigned  has  executed  this  certificate  as  of  the  ____  day  of  _____________,  200__. 


 [TRANSITION  ADMINISTRATOR  ] 
 [TWO  SIGNATURES  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  AN  ENTITY;  ONE 
 SIGNATURE  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  A  NATURAL  PERSON] 


 By:  _____________________________________  Name: 
 Title: 
 [By:  _____________________________________]  Name: 
 Title: 
241
 Federal  Communications  Commission  FCC  04-  168 
 242 
 APPENDIX  E  ANNEX  C 
 Certificate  Regarding  Reduction  of  Letter  of  Credit 
 The  undersigned  hereby  certifies  to  [Name  of  Bank]  (the  Bank),  with  reference  to  (a)  Irrevocable  Standby  Letter  of  Credit  No.  [Number]  (the  Letter  of  Credit)  issued  by  the  Bank  in  favor  of 
 the  [trustee],  and  (b)  [paragraph  332]  of  the  [Report  and  Order  and  Fifth  Report  and  Order  and  Fourth  Memorandum  Opinion  and  Order,  and  Order]  dated  as  of  __________,  2004]  issued  by  the  Federal 
 Communications  Commission  (  FCC)  in  the  matter  of  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (the  Order),  (all  capitalized  terms  used  herein  but  not  defined  herein  having  the  meaning 
 stated  or  described  in  the  Order),  that: 
 (1)  the  undersigned  Transition  Administrator  has  documented,  pursuant  to  the  Order,  that  the  amount  of  the  Letter  of  Credit  (prior  to  adjustment  as  set  forth  in  clause  (2)  below)  exceeds  the  amount 
 needed  to  ensure  completion  of  band  configuration;  and 
 (2)  the  amount  of  the  Letter  of  Credit  shall  be  reduced  to  the  amount  equal  to  $____________  [_______________  Dollars]. 


 IN  WITNESS  WHEREOF,  the  undersigned  has  executed  this  certificate  as  of  the  ____  day  of  _____________,  200_. 
 [TRANSITION  ADMINISTRATOR  ] 
 [TWO  SIGNATURES  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  AN  ENTITY;  ONE 
 SIGNATURE  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  A  NATURAL  PERSON] 


 By:  _____________________________________  Name: 
 Title: 
 [By:  _____________________________________]  Name: 
 Title:  COUNTERSIGNED: 


 Federal  Communications  Commission 
 By:  __________________________________  Name: 
 Its  Authorized  Signatory 
242
 Federal  Communications  Commission  FCC  04-  168 
 243 
 APPENDIX  E  ANNEX  D 
 Certificate  Regarding  Termination  of  Letter  of  Credit 
 The  undersigned  hereby  certifies  to  [Name  of  Bank]  (the  Bank),  with  reference  to  (a)  Irrevocable  Standby  Letter  of  Credit  No.  [Number]  (the  Letter  of  Credit)  issued  by  the  Bank  in  favor  of 
 the  [trustee],  and  (b)  [paragraph  332]  of  the  [Report  and  Order  and  Fifth  Report  and  Order  and  Fourth  Memorandum  Opinion  and  Order,  and  Order]  dated  as  of  __________,  2004]  issued  by  the  Federal 
 Communications  Commission  (  FCC)  in  the  matter  of  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (the  Order),  (all  capitalized  terms  used  herein  but  not  defined  herein  having  the  meaning 
 stated  or  described  in  the  Order),  that: 
 (1)  [include  one  of  the  following  clauses,  as  applicable] 
 (a)  The  Order  has  been  fulfilled  in  accordance  with  the  provisions  thereof; 
 (b)  Nextel  Communications,  Inc.  has  paid  to  the  appropriate  parties  all  amounts  it  is  required  to  pay  pursuant  to  the  terms  of  the  Order;  or 


 (c)  Nextel  Communications,  Inc.  has  provided  a  replacement  letter  of  credit  satisfactory  to  the  FCC. 


 (2)  By  reason  of  the  event  or  circumstance  described  in  paragraph  (1)  of  this  certificate,  and  effective  upon  the  receipt  by  the  Bank  of  this  certificate  (countersigned  as  set  forth  below),  the  Letter  of 
 Credit  is  terminated. 


 IN  WITNESS  WHEREOF,  the  undersigned  has  executed  this  certificate  as  of  the  ____  day  of  _____________,  200_. 
 [TRANSITION  ADMINISTRATOR  ] 
 [TWO  SIGNATURES  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  AN  ENTITY;  ONE 
 SIGNATURE  REQUIRED  IF  TRANSITION  ADMINISTRATOR  IS  A  NATURAL  PERSON] 


 By:  _____________________________________  Name: 
 Title: 
 [By:  _____________________________________]  Name: 
 Title:  COUNTERSIGNED: 


 Federal  Communications  Commission 
 By:  __________________________________  Name: 
 Its  Authorized  Signatory 
243
 Federal  Communications  Commission  FCC  04-  168 
 249 
 APPENDIX  F:  NPSPAC  REGIONS 
 Region  1:  Alabama  Region  2:  Alaska 
 Region  3:  Arizona  Region  4:  Arkansas 
 Region  5:  Southern  California  Region  6:  Northern  California 
 Region  7:  Colorado  Region  8:  Metropolitan,  NYC  Area  (NY,  NJ,  &  CT) 
 Region  9:  Florida  Region  10:  Georgia 
 Region  11:  Hawaii  Region  12:  Idaho 
 Region  13:  Illinois  (except  Southern  Lake  Michigan 
 counties) 
 Region  14:  Indiana  (except  Southern  Lake 
 Michigan  counties) 


 Region  15:  Iowa  Region  16:  Kansas 
 Region  17:  Kentucky  Region  18:  Louisiana 
 Region  19:  New  England  Region  20:  District  of  Columbia,  Maryland,  & 
 Northern  VA 


 Region  21:  Michigan  Region  22:  Minnesota 
 Region  23:  Mississippi  Region  24:  Missouri 
 Region  25:  Montana  Region  26:  Nebraska 
 Region  27:  Nevada  Region  28:  Eastern  Pennsylvania  (east  of 
 Harrisburg,  southern  NJ  &  DE) 


 Region  29:  New  Mexico  Region  30:  Eastern  Upstate  New  York 
 Region  31:  North  Carolina  Region  32:  North  Dakota 
 Region  33:  Ohio  Region  34:  Oklahoma 
 Region  35:  Oregon  Region  36:  Western  Pennsylvania 
 Region  37:  South  Carolina  Region  38:  South  Dakota 
 Region  39:  Tennessee  Region  40:  Texas  (Central  &  Northeast) 
 Region  41:  Utah  Region  42:  Virginia 
 Region  43:  Washington  Region  44:  West  Virginia 
 Region  45:  Wisconsin  (except  Southern  Lake 
 Michigan  counties) 
 Region  46:  Wyoming 


 Region  47:  Puerto  Rico  Region  48:  US  Virgin  Islands 
 Region  49:  Texas  -  Central  (Austin  Area)  Region  50:  Texas  -  West  &  Central  (Midland  Area) 
 Region  51:  Texas  -  East  (Houston  Area)  Region  52:  Texas  -  Panhandle,  High  Plains  & 
 Northwest  (Lubbock  Area) 


 Region  53:  Texas  -  Southern  (San  Antonio  Area)  Region  54:  Southern  Lake  Michigan  (Great  Lakes 
 inc.  WI,  IL,  &  IN) 


 Region  55:  Western  Upstate  New  York 
249
 Federal  Communications  Commission  FCC  04-  168 
 250 
 APPENDIX  G:  SOUTHEAST  ESMR  BAND  PLAN 
 The  ESMR  band  in  the  following  counties  and  parishes  is  the  band  segment  813.5  -  824  MHz  /  858.5-  869  MHz.  The  Expansion  Band  in  these  areas  shall  extend  from  812.5-  813.5  MHz  /  857.5-  858.5  MHz.  All 


 licensees  operating  in  the  band  segment  806-  813.5  MHz  /  851-  858.5  MHz  shall  be  afforded  the  same  protection  against  unacceptable  interference  as  specified  in  the  Report  and  Order. 


 Alabama  Autauga,  Baldwin,  Barbour,  Bibb,  Blount,  Bullock,  Butler,  Calhoun,  Chambers,  Cherokee,  Chilton, 
 Choctaw,  Clarke,  Clay,  Cleburne,  Coffee,  Colbert,  Conecuh,  Coosa,  Covington,  Crenshaw,  Cullman,  Dale,  Dallas,  DeKalb,  Elmore,  Escambia,  Etowah,  Fayette,  Franklin,  Geneva,  Greene,  Hale,  Henry,  Houston, 
 Jackson,  Jefferson,  Lamar,  Lauderdale,  Lawrence,  Lee,  Limestone,  Lowndes,  Macon,  Madison,  Marengo,  Marion,  Marshall,  Mobile,  Monroe,  Montgomery,  Morgan,  Perry,  Pickens,  Pike,  Randolph,  Russell, 
 Shelby,  St  Clair,  Sumter,  Talladega,  Tallapoosa,  Tuscaloosa,  Walker,  Washington,  Wilcox,  Winston 
 Florida  Bay,  Calhoun,  Escambia,  Franklin,  Gadsden,  Gulf,  Holmes,  Jackson,  Jefferson,  Leon,  Liberty,  Madison, 
 Nassau,  Okaloosa,  Santa  Rosa,  Taylor,  Wakulla,  Walton,  Washington 
 Georgia  Appling,  Atkinson,  Bacon,  Baker,  Baldwin,  Banks,  Barrow,  Bartow,  Ben  Hill,  Berrien,  Bibb,  Bleckley, 
 Brantley,  Brooks,  Bryan,  Bulloch,  Burke,  Butts,  Calhoun,  Camden,  Candler,  Carroll,  Catoosa,  Charlton,  Chatham,  Chattahoochee,  Chattooga,  Cherokee,  Clarke,  Clay,  Clayton,  Clinch,  Cobb,  Coffee,  Colquitt, 
 Columbia,  Cook,  Coweta,  Crawford,  Crisp,  Dade,  Dawson,  Decatur,  DeKalb,  Dodge,  Dooly,  Dougherty,  Douglas,  Early,  Echols,  Effingham,  Elbert,  Emanuel,  Evans,  Fannin,  Fayette,  Floyd,  Forsyth,  Franklin, 
 Fulton,  Gilmer,  Glascock,  Glynn,  Gordon,  Grady,  Greene,  Gwinnett,  Habersham,  Hall,  Hancock,  Haralson,  Harris,  Hart,  Heard,  Henry,  Houston,  Irwin,  Jackson,  Jasper,  Jeff  Davis,  Jefferson,  Jenkins, 
 Johnson,  Jones,  Lamar,  Lanier,  Laurens,  Lee,  Liberty,  Lincoln,  Long,  Lowndes,  Lumpkin,  Macon,  Madison,  Marion,  McDuffie,  McIntosh,  Meriwether,  Miller,  Mitchell,  Monroe,  Montgomery,  Morgan, 
 Murray,  Muscogee,  Newton,  Oconee,  Oglethorpe,  Paulding,  Peach,  Pickens,  Pierce,  Pike,  Polk,  Pulaski,  Putnam,  Quitman,  Rabun,  Randolph,  Richmond,  Rockdale,  Schley,  Screven,  Seminole,  Spalding, 
 Stephens,  Stewart,  Sumter,  Talbot,  Taliaferro,  Tattnall,  Taylor,  Telfair,  Terrell,  Thomas,  Tift,  Toombs,  Towns,  Treutlen,  Troup,  Turner,  Twiggs,  Union,  Upson,  Walker,  Walton,  Ware,  Warren,  Washington, 
 Wayne,  Webster,  Wheeler,  White,  Whitfield,  Wilcox,  Wilkes,  Wilkinson,  Worth 
 Louisiana  Catahoula,  Concordia,  Madison,  Tensas 


 Mississippi  Adams,  Alcorn,  Amite,  Attala,  Calhoun,  Carroll,  Chickasaw,  Choctaw,  Claiborne,  Clarke,  Clay,  Copiah, 
 Covington,  Forrest,  Franklin,  George,  Greene,  Grenada,  Hancock,  Harrison,  Hinds,  Holmes,  Itawamba,  Jackson,  Jasper,  Jefferson,  Jefferson  Davis,  Jones,  Kemper,  Lamar,  Lauderdale,  Lawrence,  Leake,  Lee, 
 Lincoln,  Lowndes,  Madison,  Marion,  Monroe,  Montgomery,  Neshoba,  Newton,  Noxubee,  Oktibbeha,  Pearl  River,  Perry,  Pike,  Pontotoc,  Prentiss,  Rankin,  Scott,  Simpson,  Smith,  Stone,  Tippah,  Tishomingo, 
 Union,  Walthall,  Warren,  Wayne,  Webster,  Wilkinson,  Winston,  Yazoo 
 North  Carolina  Cherokee,  Clay,  Graham,  Jackson,  Macon 


 South  Carolina  Abbeville,  Aiken,  Allendale,  Anderson,  Bamberg,  Barnwell,  Beaufort,  Edgefield,  Greenwood,  Hampton, 
250
 Federal  Communications  Commission  FCC  04-  168 
 251 
 Jasper,  McCormick,  Oconee 
 Tennessee  Bledsoe,  Bradley,  Franklin,  Giles,  Hamilton,  Hardin,  Lawrence,  Lincoln,  Marion,  McMinn 
251
 Federal  Communications  Commission  [Click  to  enter  order  number] 
 1 
 STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Improving  Public  Safety  Communications  in  the  800  MHz  Band  (WT  Docket  No.  02-  55),  et  al.,  Report  and  Order  and  Fourth  Report  and  Order 
 Congress  has  imposed  many  important  obligations  on  the  Commission.  One  of  the  Commissions  most  important  commitments  is  to  promote  safety  of  life  and  property  using  wire  and  radio 
 communications.  Today,  it  is  more  important  than  ever  before  that  public  safety  agencies  have  access  to  reliable,  robust,  interference-  free  communications  systems.  To  protect  our  communities,  our  citizens,  and 
 our  Nation,  we  must  take  every  action  at  our  disposal  to  achieve  the  seamless  communications  necessary  for  emergency  preparedness  and  response. 


 The  800  MHz  band  has  become  increasingly  crucial  to  public  safety  communications.  Because  of  the  interleaved  nature  of  the  band  and  the  close  proximity  of  incompatible  technologies,  over  the  years, 
 these  systems  have  encountered  escalating  amounts  of  interference  from  commercial  cellular  systems.  In  response,  the  Commission  released  a  Notice  of  Proposed  Rulemaking  to  reconfigure  the  800  MHz  band  to 
 abate  the  interference  caused  to  public  safety  systems.  This  proceedings  extensive  record  of  over  2,200  filings  depicts  the  complexity  of  the  issue  and  difficulty  in  constructing  a  solution  that  is  technically 
 sound,  effective  and  equitable  to  all  parties.  Although  todays  Order  incorporates  proposals  and  suggestions  from  various  parties  on  record,  it  is  a  Commission-  derived  solution  that  represents  the  most 
 comprehensive  and  effective  means  of  solving  the  800  MHz  public  safety  interference  problem. 
 Our  decision  fulfills  our  mandate  to  promote  public  safety  by  reconfiguring  the  800  MHz  public  safety  band  to  segregate  systems  causing  unacceptable  levels  of  interference  to  public  safety 
 communications.  Without  these  measures,  countless  lives  are  at  risk  because  our  Nations  first  responders  cannot  rely  on  their  radios  in  emergencies.  In  the  short  term,  the  Order  establishes  technical 
 rules  and  procedures  that  define  and  alleviate  unacceptable  interference  to  public  safety  systems.  Longer  term,  the  Order  adopts  a  restructuring  plan  that  spectrally  separates  incompatible  technologies  to 
 maximize  interference  protection  for  present  and  future  public  safety  systems  and  provides  a  smooth  transition  to  the  new  band  with  minimal  disruption  to  public  safety  systems  and  other  affected  parties. 


 The  Commission-  derived  plan  requires  Nextel  to  relinquish  spectrum  and  reband  800  MHz  and  relocate  incumbents  in  800  MHz  and  1.9  GHz.  Nextel  must  also  complete  the  reconfiguration  within  three 
 years  and  obtain  a  letter  of  credit  to  guarantee  its  completion  for  public  safety  licensees.  It  is  important  to  emphasize  that  Nextel  is  responsible  for  all  costs  of  relocating  public  safety  licensees. 


 This  decision  is  by  far  one  of  the  most  complex  matters  to  come  before  the  Commission;  however,  it  is  unquestionably  one  of  the  most  important  decision  affecting  public  safety  and  the  American 
 people.  We  will  carefully  monitor  the  progress  of  public  safety  relocation  and  will  take  all  necessary  steps  to  ensure  full  compliance  of  the  plan  we  adopt  today. 
252
 Federal  Communications  Commission  [Click  to  enter  order  number] 
 2 
 STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Improving  Public  Safety  Communications  in  the  800  MHz  band,  WT  Docket  No.  02-  55 
 For  three  years  we  have  struggled  to  identify  the  best  way  to  resolve  public  safety  interference  problems  in  the  800  MHz  band.  After  reviewing  the  voluminous  record  it  became  clear  to  me  that:  1)  the  adoption 
 of  enhanced  best  practices  alone  would  be  inadequate  to  protect  critical  public  safety  communications;  and  2)  any  rebanding  solution  would  be  costly,  complex  and  controversial.  I  embrace  todays  decision 
 because  it  puts  public  safetys  interests  first.  While  I  recognize  that  the  rebanding  plan  is  costly,  complex  and,  in  some  respects,  controversial,  it  is  the  only  the  solution  that  adequately  addresses  the  needs  of 
 public  safety  while  realigning  other  uses  of  the  800  MHz  band. 
 When  we  initiated  this  proceeding,  I  stated  that  there  were  four  key  considerations  which  would  likely  guide  my  analysis.  First,  the  plan  must  aggressively  attack  the  public  safety  interference  issues.  Second, 
 our  approach  should  strive  to  minimize  costs.  Third,  if  possible,  we  should  attempt  to  minimize  the  disruption  to  other  bands.  And  fourth,  if  we  were  to  consolidate  public  safety  into  a  contiguous  band  and 
 there  is  a  demonstrated  need  in  the  record,  we  should  identify  additional  interoperability  channels  for  public  safety.  Todays  order  addresses  each  of  these  considerations. 


 As  an  initial  step  we  adopt  mandatory  best  practices  that  will  diminish,  but  not  eliminate,  the  potential  for  harmful  interference  to  public  safety.  Over  the  longer  term,  we  are  implementing  a  rebanding  plan  that 
 completely  eliminates  harmful  interference  and  provides  additional  spectrum  for  public  safety.  Rebanding  will  be  paid  for  by  Nextel,  thus  ensuring  that  public  safety  does  not  incur  any  new  costs,  and 
 the  processes  we  have  adopted  will  minimize  service  disruptions. 
 Because  of  the  importance  of  achieving  a  workable  solution  for  public  safety  and  the  American  public,  and  the  complex  technical  issues,  this  has  not  been  an  easy  proceeding  to  resolve.  I  believe,  however, 
 that  the  plan  we  are  adopting  is  the  best  mechanism  available  to  us  to  solve  the  public  safety  interference  problem  in  the  800  MHz  band  and  I  appreciate  all  of  the  time,  effort  and  brain  power  devoted  to  this 
 proceeding  by  public  safety,  industry  and  the  FCC  staff. 
253
 Federal  Communications  Commission  [Click  to  enter  order  number] 
 3 
 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 RE:  Improving  Public  Safety  Communications  in  the  800  MHz  Band,  WT  Docket  No.  02-  55. 
 Today  we  take  a  giant  leap  forward  to  protect  public  safety.  Title  I  of  our  enabling  statute  charges  the  Federal  Communications  Commission  to  promote  the  national  defense  and  the  safety  of  life 
 and  property  through  the  wise  use  of  our  countrys  communications  systems.  Indeed,  a  public  servant  has  no  higher  obligation  than  tending  to  the  safety  of  the  people. 


 It  took  a  long  time  and  a  lot  of  hard  work  to  get  us  here  today.  Along  the  way  we  discovered  that  no  plan  is  perfect,  no  plan  is  supported  by  all  parties,  and  no  plan  is  guaranteed  to  deliver  everything  that 
 it  promises.  Challenging  technical  questions  were  accompanied  by  equally  challenging  questions  of  policy  and  of  law.  At  the  end  of  two  years  of  study,  analysis  and  stakeholder  input,  we  have  now  come  to 
 a  decision  that  can  fix  the  problems  it  addresses,  advance  public  safety  and  serve  the  public  interest. 
 Today  we  approve  a  reconfiguration  of  the  800  MHz  band  so  that  public  safety  spectrum  is  insulated  from  interference  from  Nextel  operations  and  public  safety  is  given  access  to  additional 
 spectrum  to  do  its  job.  We  mandate  that  Nextel  pay  all  relocation  costs,  even  if  they  are  above  the  $850  million  figure  that  the  company  has  discussed.  We  mandate  that  Nextel  secure  an  irrevocable  letter  of 
 credit  for  $2.5  billion  so  that  the  public  safety  community  knows  that  it  will  have  the  money  it  needs  to  relocate.  We  establish  a  transition  manager  that  will  be  independent  of  any  one  interest,  and  that  I  hope 
 will  work  to  make  the  transition  serve  the  public  interest  of  minimizing  interference  and  getting  public  safety  operations  to  a  stable  place  as  soon  as  possible.  We  state  that  upon  receiving  the  Comptroller 
 Generals  analysis  of  appropriations  statutes,  we  can  stay  relevant  portions  of  the  Order  if  appropriate.  And  finally,  we  establish  a  mechanism  to  protect  tax-  payers  against  private  sector  windfall. 


 Its  a  good  day  for  public  safety,  a  good  day  for  America.  I  think  the  citizens  of  our  country  now  are  looking  to  us  all  of  us  to  get  on  with  the  job  of  putting  this  plan  into  action.  Time  and  delay  are 
 not  our  friends  here. 


 I  want  to  express  my  thanks  to  my  colleagues,  particularly  the  Chairman,  to  the  Bureau  and  to  our  hard-  working  staffs  for  the  extraordinary  time,  skill  and  energy  they  put  into  this  long-  running 
 proceeding.  And  I  want  to  express  my  deep  thanks  to  the  public  safety  community  that  worked  so  hard,  traveled  so  far  and  thought  so  creatively  to  bring  us  to  where  we  are  today.  The  perseverance  of  all  is 
 certainly  appreciated  by  this  Commissioner. 
254
 Federal  Communications  Commission  [Click  to  enter  order  number] 
 4 
 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Improving  Public  Safety  Communications  in  the  800  MHz  Band;  WT  Docket  No.  02-  55 
 The  interference  situation  in  the  800  MHz  band  is  one  of  the  most  challenging  wireless  issues  the  Commission  has  ever  faced.  We  are  trying  to  untangle  years  of  actions  that  have  created  unacceptable 
 and  dangerous  interference  problems  for  our  nations  first  responders.  I  am  pleased  to  support  todays  item  because  it  puts  in  place  the  necessary  components  to  greatly  minimize,  and  hopefully  eliminate,  the 
 interference  currently  experienced  by  our  nations  first  responders  who  communicate  on  land  mobile  radio  systems  in  the  800  MHz  band,  particularly  during  times  of  emergency.  This  interference  is  an 
 unacceptable  crisis  that  must  be  fixed.  Today  we  give  our  licensees  what  they  asked  for    the  regulatory  tools  to  solve  the  problem  both  through  rebanding  and  enhanced  best  practices. 


 The  urgent  needs  of  the  public  safety  community  is  one  of  the  top  priorities  of  the  Commission,  and  certainly  this  Commissioner.  Public  safety  officials  put  their  lives  on  the  line  for  all  of  us  every  day,  and 
 their  situation  commands  the  highest  level  of  attention  and  priority  at  the  Commission.  The  very  first  paragraph  of  the  Communications  Act  charges  the  Commission  to  promote  the  safety  of  life  and 
 property  through  the  use  of  wire  and  radio  communication. 
 Today  we  step  up  to  that  responsibility,  and  it  is  important  that  in  doing  so  we  speak  with  one  voice  as  a  Commission.  The  stakes  here  are  as  high  as  in  any  proceeding  we  consider.  We  simply  have  to  get  this 
 right.  Throughout  this  proceeding,  I  have  worked  very  hard  with  my  colleagues  to  explore  all  aspects  of  rebanding,  including  different  mechanisms  for  funding  and  a  variety  of  spectrum  configuration  options. 
 We  worked  tirelessly  through  countless  options  to  find  the  approach  that  met  the  concerns  of  public  safety  while  remaining  within  the  bounds  of  the  authority  granted  to  us  by  Congress. 


 I  know  that  some  may  say  that  the  Commission  moved  too  slowly  to  take  this  action.  But  I  want  to  emphasize  that  the  time  has  been  very  well  spent.  Since  early  this  year,  my  staff  and  I,  in  conjunction 
 with  some  of  the  other  Commissioner  offices,  have  worked  extensively  with  the  Commission  staff  to  ensure  that  this  item  provides  the  best  blueprint  possible  for  800  MHz  rebanding.  There  simply  is  too 
 much  at  stake  to  get  this  wrong.  It  is  especially  important  that  we  put  in  place  an  appropriate  mechanism  to  ensure  that  all  necessary  resources  are  provided  to  meet  the  needs  of  public  safety  agencies,  and  that 
 any  incentives  to  limit  assistance  are  minimized.  I  also  am  pleased  that  the  item  puts  in  place  procedures  to  minimize  as  much  as  possible  the  impact  of  our  decision  on  800  MHz  licensees  not  directly  implicated 
 by  the  interference  problem. 
 Finally,  while  this  proceeding  likely  impacted  every  Bureau  and  Office  in  the  Commission,  I  want  to  acknowledge  the  extraordinary  efforts  of  the  staff  of  the  Wireless  Telecommunications  Bureau  in  tackling 
 this  once  in  a  lifetime  challenge.  I  want  to  specifically  thank  Michael  Wilhelm,  who  managed  this  project  from  the  beginning,  and  the  staff  of  the  Public  Safety  and  Critical  Infrastructure  Division  for  their 
 outstanding  work  on  this  project    it  truly  has  been  a  fine  performance  of  government  service. 
 This  decisions  primary  goal  is  to  protect  the  nations  police,  fire  and  emergency  medical  personnel  who  are  on  the  front  lines  of  our  countrys  public  safety  efforts.  Our  decision  today  puts  that  priority  front  and 
 center,  right  where  it  belongs. 
255