[Federal Register Volume 72, Number 164 (Friday, August 24, 2007)]
[Rules and Regulations]
[Pages 48814-48868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4123]



[[Page 48813]]

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Part VI





Federal Communications Commission





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47 CFR Parts 0, 1, 2, 27 and 90



Service Rules for the 698-806 MHz Band, Revision of the Commission's 
Rules Regarding Public Safety Spectrum Requirements, and a Declaratory 
Ruling on Reporting Requirement under the Commission's Anti-Collusion 
Rule; Final Rule

Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules 
and Regulations

[[Page 48814]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, 2, 27, and 90

[WT Docket No. 06-150; CC Docket No. 94-102, WT Docket No. 01-309, WT 
Docket No. 03-264, WT Docket No. 06-169; PS Docket No. 06-229; WT 
Docket No. 96-86; WT Docket No. 07-166; FCC No. 07-132]


Service Rules for the 698-806 MHz Band, Revision of the 
Commission's Rules Regarding Public Safety Spectrum Requirements, and a 
Declaratory Ruling on Reporting Requirement under the Commission's 
Anti-Collusion Rule

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC) 
adopts final rules governing wireless licenses in the 698-806 MHz Band 
(i.e., the 700 MHz Band). This spectrum is currently occupied by 
television broadcasters and is being made available for wireless 
services, including public safety and commercial services, as a result 
of the digital television (``DTV'') transition.

DATES: Effective October 23, 2007, except for the amendments to 
Sec. Sec.  27.14, 27.15, 27.50, and 90.176 which contain information 
collection requirements that have not been approved by the Office of 
Management and Budget (OMB). The Commission will publish a document in 
the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Paul Moon at (202) 418-1793, 
<a href="/cdn-cgi/l/email-protection#5b2b3a2e3775363434351b3d3838753c342d"><span class="__cf_email__" data-cfemail="205041554c0e4d4f4f4e604643430e474f56">[email protected]</span></a>, Mobility Division, Wireless Telecommunications 
Bureau; Peter Trachtenberg at (202) 418-7369, at 
<a href="/cdn-cgi/l/email-protection#7303160716015d070112101b07161d11160114331510105d141c05"><span class="__cf_email__" data-cfemail="becedbcadbcc90caccdfddd6cadbd0dcdbccd9fed8dddd90d9d1c8">[email protected]</span></a>, Spectrum and Competition Policy Division, 
Wireless Telecommunications Bureau; Jeff Cohen at (202) 418-0799, 
<a href="/cdn-cgi/l/email-protection#7b111e1d1d551814131e153b1d1818551c140d"><span class="__cf_email__" data-cfemail="5f353a3939713c30373a311f393c3c71383029">[email protected]</span></a>, Public Safety and Homeland Security Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, WT Docket No. 06-150; CC Docket No. 94-102, WT Docket 
No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169; PS Docket No. 
06-229; WT Docket No. 96-86; WT Docket No. 07-166; FCC No. 07-132, 
adopted July 31, 2007 and released August 10, 2007. The full text of 
the Second Report and Order is available for public inspection on the 
Commission's Internet site at http://www.fcc.gov. It is also available 
for inspection and copying during regular business hours in the FCC 
Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 
20554. The full text of this document also may be purchased from the 
Commission's duplication contractor, Best Copy and Printing Inc., 
Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; 
telephone (202) 488-5300; fax (202) 488-5563; e-mail <a href="/cdn-cgi/l/email-protection#36707575767475667f6173741875797b"><span class="__cf_email__" data-cfemail="a0e6e3e3e0e2e3f0e9f7e5e28ee3efed">[email protected]</span></a>.

Synopsis

    In this Second Report and Order, the Commission establishes rules 
governing wireless licenses in the 698-806 MHz Band (herein, the ``700 
MHz Band''). This spectrum currently is occupied by television 
broadcasters in TV Channels 52-69. It is being made available for 
wireless services, including public safety and commercial services, as 
a result of the digital television (``DTV'') transition. In passing the 
Digital Television Transition and Public Safety Act of 2005 (``DTV 
Act''), Congress accelerated the DTV transition by providing a date 
certain, February 17, 2009, for the end of the transition.\1\ The 
Commission has been considering rules related to the use of this 
spectrum in three ongoing proceedings: (1) The 700 MHz Commercial 
Services proceeding, 71 FR 48506 (2006),\2\ (2) the 700 MHz Guard Bands 
proceeding, 71 FR 57455,\3\ and (3) the 700 MHz Public Safety 
proceeding, 72 FR 1201 (2007); 71 FR 17786 (2006).\4\ Recognizing the 
interrelationship of these proceedings, the Commission recently 
combined these proceedings and in April 2007 issued a single Report and 
Order and Further Notice of Proposed Rulemaking (the 700 MHz Report and 
Order, 72 FR 27688 (2007), and 700 MHz Further/NPRM, FR 24238 (2007), 
respectively) addressing all three proceedings.\5\ Accordingly, the 
Commission addresses the rules regarding access to 700 MHz Band 
spectrum and the provision of service across the country, as well as 
opportunities for broadband service for Public Safety users in this 
Second Report and Order.
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    \1\ See Deficit Reduction Act of 2005, Pub. L. 109-171, 120 
Stat. 4 (2006) (``DRA''). Title III of the DRA is the DTV Act.
    \2\ See Service Rules for the 698-749, 747-762 and 777-792 MHz 
Bands, WT Docket No. 06-150, Revision of the Commission's rules to 
Ensure Compatibility with Enhanced 911 Emergency Calling Systems and 
Section 68.4(a) of the Commission's rules Governing Hearing Aid-
Compatible Telephones, CC Docket No. 94-102, WT Docket No. 01-309, 
Notice of Proposed Rule Making, Fourth Further Notice of Proposed 
Rule Making, and Second Further Notice of Proposed Rule Making, 71 
FR 48506 (2006) (700 MHz Commercial Services NPRM).
    \3\ See Former Nextel Communications, Inc. Upper 700 MHz Guard 
Band Licenses and Revisions to Part 27 of the Commission's Rules, 
Development of Operational, Technical and Spectrum Requirements for 
Meeting Federal, State and Local Public Safety Communications 
Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86, 
Notice of Proposed Rule Making, 71 FR 57455 (2006) (700 MHz Guard 
Bands NPRM).
    \4\ See Implementing a Nationwide, Broadband, Interoperable 
Public Safety Network in the 700 MHz Band, Development of 
Operational, Technical and Spectrum Requirements for Meeting 
Federal, State and Local Public Safety Communications Requirements 
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86, 
Ninth Notice of Proposed Rulemaking, 72 FR 1201 (2007) (2006) (700 
MHz Public Safety Ninth NPRM); Development of Operational, Technical 
and Spectrum Requirements for Meeting Federal, State and Local 
Public Safety Communications Requirements Through the Year 2010, WT 
Docket No. 96-86, Eighth Notice of Proposed Rulemaking, 71 FR 17786 
(2006) (700 MHz Public Safety Eighth NPRM).
    \5\ Service Rules for the 698-746, 747-762 and 777-792 MHz 
Bands, WT Docket No. 06-150, Revision of the Commission's rules to 
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC 
Docket No. 94-102, Section 68.4(a) of the Commission's rules 
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, 
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90 
to Streamline and Harmonize Various Rules Affecting Wireless Radio 
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 
700 MHz Guard Band Licenses and Revisions to Part 27 of the 
Commission's rules, WT Docket No. 06-169, Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band, 
PS Docket No. 06-229, Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, WT Docket 
No. 96-86, Report and Order and Further Notice of Proposed 
Rulemaking, 22 FCC Rcd 8064 (2007) (700 MHz Report and Order and 700 
MHz Further NPRM, respectively).
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I. Discussion

A. Commercial 700 MHz Band, Including 700 MHz Guard Bands

1. Band Plan
a. Commercial Spectrum (Excluding Guard Bands Spectrum)
    1. In the 700 MHz Report and Order, the Commission determined that 
a balanced mix of geographic service area licenses--CMAs, EAs, and 
REAGs--would be appropriate for the commercial 700 MHz Band licenses 
that will be auctioned. The Commission reaffirms that determination for 
all of this commercial spectrum except for that associated with the 10-
megahertz commercial license (comprised of paired 5-megahertz blocks) 
which will be auctioned on a nationwide basis for use as part of the 
700 MHz Public/Private Partnership with the Public Safety Broadband 
Licensee. The Commission further determines that a mix of spectrum 
block sizes, including one large 22-megahertz block (comprised of 
paired 11-megahertz blocks), is appropriate for the 700 MHz Band 
licenses that remain to be auctioned.

[[Page 48815]]

    2. The Commission will license three commercial blocks of paired 
spectrum--one 12-megahertz block (comprised of paired 6-megahertz 
blocks) licensed on a CMA basis, one 12-megahertz block (comprised of 
paired 6-megahertz blocks) on an EA basis, and one 22-megahertz block 
(comprised of paired 11-megahertz blocks) on a REAG basis--as well as 
one 6-megahertz block of unpaired spectrum on an EA basis. First, the 
Commission will license one additional 12-Megahertz Spectrum Block 
(comprised of paired 6-Megahertz blocks) in the 700 MHz Band on a CMA 
basis, to be located in the B Block of the Lower 700 MHz Band 
immediately adjacent to the existing CMA-based licenses. Second, the 
Commission will license a 22-megahertz block (comprised of paired 11-
Megahertz blocks) on a REAG basis located in the C Block in the Upper 
700 MHz Band. Third, the Commission will license a 12-Megahertz block 
(comprised of paired 6-megahertz blocks) on an EA basis located in 
Block A of the Lower 700 MHz Band. Finally, the Commission adopts EAs 
for the unpaired 6-megahertz E Block of the Lower 700 MHz Band.
b. Guard Bands Spectrum
    3. The Commission adopts a revised band plan for the 700 MHz Guard 
Bands spectrum and the Upper 700 MHz Band, which includes features of 
Cyren Call's additional band plan proposal and the July 6, 2007 Guard 
Bands Proposal. Additionally, the Commission determines that it lacks 
legal authority to adopt the Broadband Optimization Plan (BOP), 
Critical Infrastructure Industries (CII), or the Ericsson proposals 
because they propose a reallocation of commercial spectrum to public 
safety, and assignment of commercial licenses from the Commission's 
auction inventory without competitive bidding. The Commission also 
rejects the most recent Ericsson band plan proposal, as well as the 
Access Spectrum/Pegasus Alternative Proposal and the Cyren Call 
proposals to the extent they are inconsistent with the Commission's 
actions in this Second Report and Order.
(a) Revisions to Upper 700 MHz Band Plan for Guard Bands
    4. The Commission adopts the July 6, 2007 Guard Bands Proposal 
based on the agreement of all Guard Band licensees except PTPMS II, 
whose two Guard Band B Block licenses the Commission grandfathers, and 
whose one Guard Band A Block license the Commission repacks into the 
reconfigured Guard Band A Block. The Commission concludes that the 
existing Guard Band B Block is no longer needed as a guard band to 
protect the adjacent 700 MHz public safety users, and to the extent 
possible, should be consolidated with the remaining commercial spectrum 
for more efficient and effective use. The Commission finds that the 
public interest is best served by adoption of features of the Cyren 
Call and July 6, 2007 proposals because it removes the ``repacked'' 
Guard Band A Block from the critical juncture between the Upper 700 MHz 
D Block and the public safety broadband spectrum, which together will 
be used as the foundation for the 700 MHz Public/Private Partnership.
    5. Funding for Public Safety Reconfiguration. The Commission finds 
that the proximity of the public safety broadband spectrum to the 
adjacent D block will provide significant benefits to the D Block 
licensee. Accordingly, the Commission concludes that the D Block 
licensee must pay the costs of consolidating the 700 MHz public safety 
narrowband channels to the upper half of the 700 MHz Public Safety 
Band.
    6. License Modifications. The Commission finds that the public 
interest, convenience, and necessity will be served by relocating all 
existing Guard Band A licenses to the reconfigured Guard Band A Block 
located at 757-758 MHz and 787-788 MHz. With the exception of PTPMS II, 
which holds one A Block license and two B Block licenses, the license 
modifications that the Commission effects today are consensual.
    7. These license modifications are consistent with Sections 337 and 
309 of the Act, because the 4 megahertz of remaining Guard Bands 
spectrum remains commercial spectrum subject to auction. Specifically, 
the 2 megahertz from 746-747 MHz and 776-777 MHz will be added to, and 
auctioned as part of, the Upper 700 MHz Band C Block in the forthcoming 
700 MHz Band auction. The lower portion of the reconfigured commercial 
Guard Band B Block at 775-776 MHz will provide a necessary guard band 
between public safety narrowband communications and adjacent commercial 
services. The Commission will be able to determine other potential uses 
of this spectrum, and the related portion of the B Block at 805-806 
MHz, at a future date.
    8. Spectrum Use Agreements. Pursuant to Section 309(f) of the Act, 
the Commission hereby grants Access Spectrum 180-day special temporary 
authorizations for MEAs 20, 26, 32, 37, 44, and 52 for the current 
Guard Band A Block (746-747 MHz, 776-777 MHz). In the event that Access 
Spectrum cannot complete the transition of the CII system during the 
180-day period, it may seek an appropriate extension of the STA upon a 
proper showing. Because the Commission modifies (repack and relocate) 
the Guard Band A Block MEA licenses held by Access Spectrum, Pegasus, 
and Dominion upon the effective date of this Second Report and Order, 
the six STA grants to Access Spectrum will be granted upon the 
effective date as well.
    9. PTPMS II. To ensure that critical interoperable public safety 
communications are uniform throughout the continental United States, 
the Commission hereby modifies PTPMS II's Guard Band A Block license in 
Buffalo (MEA 003), pursuant to Sections 316, 301, 303, and 4(i) of the 
Act, to operate in the same geographic area but in the reconfigured A 
Block at 757-758 MHz and 787-788 MHz. The Commission also modifies 
PTPMS II's B Block licenses in Des Moines--Quad Cities (MEA 021) and El 
Paso--Albuquerque (MEA 039) by shifting them down by 1 megahertz, so 
that PTPMS II is authorized to operate at 761-763 MHz and 791-793 MHz. 
These modifications should not burden PTPMS II because it does not have 
any operations associated with the three licenses.
    10. As a result of the foregoing modifications, the new nationwide 
Upper 700 MHz Band D Block license, at 758-763 MHz and 788-793 MHz, 
will be authorized in Des Moines--Quad Cities (MEA 021) and El Paso--
Albuquerque (MEA 039) on a secondary basis to PTPMS II. As such, the D 
Block licensee may not cause interference to primary operations of 
PTPMS II or claim protection from harmful interference from any 
operations of PTPMS II in those MEAs. The D Block licensee must cease 
operations on the spectrum assigned to PTPMS II in these two markets if 
it poses an interference problem to PTPMS II. In the event that PTPMS 
II, or a successor or an assign of PTPMS II, elects to cancel either of 
its grandfathered licenses, or if either license cancels automatically, 
or is terminated by the Commission, then the licensed geographic area 
will revert, without further action by the Commission, to the D Block 
licensee. This reversionary interest will include the right to operate 
under the D Block technical rules.
    11. Further, the Commission grandfathers PTPMS II's two B Block 
licenses without any renewal expectancy, and does not extend the term 
of its licenses as the Commission has for the reconfigured Guard Band A 
Block licenses. The Commission will

[[Page 48816]]

afford PTPMS II's Guard Band A Block license the modified (less 
stringent) technical rules that the Commission adopts below for all 
other Guard Band A Block licenses.
    12. Accordingly, pursuant to Section 316 of the Act and Section 
1.87 of the Commission's rules, PTPMS II has 30 days from the effective 
date of this Second Report and Order to protest the foregoing license 
modifications. Additionally, as stated in their July 6, 2007 Ex Parte, 
the other Guard Bands licensees have waived their protest rights.
(b) Broadband Optimization Plan (BOP), Critical Infrastructure 
Industries (CII) and Ericsson Proposals
    13. For the reasons discussed in the 700 MHz Further NPRM, the 
Commission denies the BOP and CII proposals. Further, the Commission 
concludes that the additional Ericsson band plan proposal is not in the 
public interest.
2. Service Rules
a. Commercial Services (Excluding Guard Bands and Upper 700 MHz D 
Block)
(i) Performance Requirements
    14. In order to better promote access to spectrum and the provision 
of service, especially in rural areas, the Commission replaces the 
current ``substantial service'' requirements for the 700 MHz Band 
licenses that have not been auctioned with significantly more stringent 
performance requirements. These requirements include the use of interim 
and end-of-term benchmarks, with geographic area benchmarks for CMA and 
EA licenses, and population benchmarks for REAG licenses. Licensees 
must meet the interim requirement within four years of the end of the 
DTV transition (i.e., February 17, 2013). Failure to meet the interim 
requirement will result in a two-year reduction in license term, as 
well as possible enforcement action, including forfeitures. The 
Commission also reserves the right to impose a proportional reduction 
in the size of the license area of a licensee that fails to meet its 
interim benchmarks. Licensees that fail to meet the end-of-term 
benchmarks will be subject to a ``keep-what-you-use'' rule, under which 
the licensee will lose its authorization for unserved portions of its 
license area, which will be returned to the Commission for 
reassignment. They may also be subject to potential enforcement action, 
including possible forfeitures or cancellation of license. The 
Commission also imposes certain reporting requirements intended to help 
the Commission monitor build-out progress during the license term. The 
Commission expects that licensees will take these construction 
requirements seriously and proceed toward providing service with utmost 
diligence. As such, the Commission does not envision granting waivers 
or extensions of construction periods except where unavoidable 
circumstances beyond the licensee's control delay construction.
    15. Specific Performance Requirements for CMA and EA Licenses. The 
Commission concludes that, for licenses based on CMAs and EAs, 
licensees must provide signal coverage and offer service to: (1) At 
least 35 percent of the geographic area of their license within four 
years of the end of the DTV transition, and (2) at least 70 percent of 
the geographic area of their license at the end of the license term. In 
determining the relevant geographic area, the Commission concludes 
that, in applying geographic benchmarks, the Commission should not 
generally consider the relevant area of service to include government 
lands. CMA or EA licensees that fail to meet the interim requirement 
within their license areas will have their license terms reduced by two 
years, from ten to eight years, thus requiring these licensees to meet 
the end-of-term benchmark at an accelerated schedule. For those CMAs or 
EAs in which the end-of-term performance requirements have not been 
met, the unused portion of the license will terminate automatically 
without Commission action and will become available for reassignment by 
the Commission subject to the ``keep-what-you-use'' rules described 
below.
    16. To the extent the licensee employs a signal level and provides 
service to land that is owned or leased by government, the licensee may 
count this land area and coverage as part of its service area for 
purposes of measuring compliance with the build-out benchmark, but it 
also must add the covered government land to the total geographic area 
used for measurement purposes.
    17. Specific Performance Requirements for REAG Licenses. The 
Commission concludes that, for licenses based on REAGs, licensees must 
provide signal coverage and offer service to: (1) At least 40 percent 
of the population of the license area within four years, and (2) at 
least 75 percent of the population of the license area by the end of 
the license term. Licensees must use the most recently available U.S. 
Census Data at the time of measurement to meet these population based 
build-out requirements.
    18. In addition, for licenses based on REAGs, the Commission will 
apply its performance requirements on an EA basis. Accordingly, to meet 
their benchmarks, REAG licensees must provide signal coverage and offer 
service to at least 40 percent of the population in each EA in its 
license area within four years and 75 percent of the population of each 
of these EAs at the end of the license term. REAG licensees that fail 
to meet the interim requirement in any EA within their license areas 
will have their license term for the entire REAG reduced by two years, 
from ten to eight years, thus requiring these licensees to meet the 
end-of-term benchmark at an accelerated schedule. In applying the end-
of-term coverage requirement to REAG licensees, the Commission will 
evaluate the licensee's coverage on an EA-by-EA basis. For those EAs in 
which the end-of-term performance requirements have not been met, the 
unused portion of the license will terminate automatically without 
Commission action and will become available for reassignment by the 
Commission subject to the ``keep-what-you-use'' regime described below.
    19. Reporting Requirements. In connection with the performance 
requirements adopted in this Second Report and Order, the Commission 
adopts an interim reporting requirement that will obligate licensees to 
provide the Commission with information concerning the status of their 
efforts to meet the performance requirements and the manner in which 
their spectrum is being utilized. In addition, this information will be 
useful to monitor whether further assessment of the rules or other 
actions are necessary in the event spectrum is being stockpiled or 
warehoused, or if it is otherwise not being made available despite 
existing demand. All licensees will file the first of these reports at 
the end of the second year following the end of the DTV Transition, 
i.e., February 17, 2011. Licensees that do not meet their interim 
benchmarks will file their second report following the sixth year after 
the end of the DTV Transition, i.e., February 17, 2015, while licensees 
that do meet their interim benchmarks will have until the end of the 
seventh year to file, i.e., February 17, 2016. For licensees that do 
not meet their interim benchmarks and have their license terms reduced, 
the second report will be filed at the end of the sixth year following 
the end of the DTV Transition, i.e., February 17, 2015. The information 
to be reported will include a description of the steps the licensee has 
taken toward meeting its construction obligations in a timely

[[Page 48817]]

manner, including the technology or technologies and service(s) being 
provided and the areas in which those services are available.
    20. Procedures for Implementation. Licensees must demonstrate 
compliance with the Commission's interim and end-of-term construction 
benchmarks by filing a construction notification with the Commission 
within 15 days of the relevant benchmark certifying that they have met 
the Commission's performance requirements or, if they have not met the 
Commission's performance requirements, they must file a description and 
certification of the areas for which they are providing service. The 
information contained in the licensee's construction notification must 
include electronic coverage maps and other supporting documentation. 
The Commission recognizes that demonstrations of coverage may vary 
across licensees. Accordingly, the Commission delegates to the Wireless 
Bureau the responsibility for establishing the specifications for 
filing maps and other documents (e.g., file format and appropriate 
data) needed to determine a licensee's geographic coverage area. The 
Commission recognizes that coverage determinations may need to be made 
on a case-by-case basis so as to account for the potentially wide 
variety of services and technologies that may be offered in the band.
    21. The electronic coverage maps must clearly and accurately depict 
the boundaries of each EA or CMA in the licensee's service territory, 
and the areas where the licensee is providing signal coverage and 
offering service. If the licensee's signal does not provide service to 
the entire EA or CMA, the map must clearly and accurately display the 
boundaries of the area or areas within each EA or CMA not being served.
    22. In addition to filing electronic coverage maps, each licensee 
must file supporting documentation certifying the type of service it is 
providing for each EA or CMA within its license service territory and 
the type of technology it is utilizing to provide this service for each 
EA or CMA in its service territory. The supporting documentation also 
must provide the assumptions used by the licensee to create the 
coverage maps, including the propagation model and the signal strength 
necessary to provide service with the licensee's technology.
    23. When the licensee files its construction notification, 
including its coverage maps and supporting documentation, the public 
will be given an opportunity to review and comment on the construction 
notification, including the maps provided by the licensee and the 
technical assumptions used to create the maps. After examining the 
notification and public comments, Commission staff will make a final 
determination as to what areas within EAs and CMAs are, and are not, 
deemed ``served.'' If the Commission determines that a licensee meets 
the applicable interim benchmark, it will not have its license term 
reduced by two years. Likewise, if the Commission determines that a 
licensee meets its applicable end of term benchmark requirement, the 
licensee will be deemed to have met the Commission's construction 
build-out requirement.
    24. Under the Commission's ``keep-what-you-use'' rule, if a 
licensee fails to meet its end of term benchmark, its authorization to 
operate will terminate automatically without Commission action for 
those geographic areas in which the licensee is not providing service, 
and those unserved areas will become available for reassignment by the 
Commission. The Commission will update its Universal Licensing System 
records to reflect those geographic areas for which the licensee 
retains authority to operate, as well as those geographic areas that 
will be made available for reassignment.
    25. For purposes of reassigning these licenses, the Wireless Bureau 
is delegated authority to announce by public notice that these licenses 
will be made available and establish a 30-day window during which third 
parties may file license applications to serve these areas. During this 
30-day period, the licensee that failed to serve the area may not file 
an application to regain the license authorization for that area. 
Applications filed by third parties that propose areas overlapping with 
other applications will be deemed mutually exclusive, and will be 
resolved through an auction. The Wireless Bureau, by public notice, may 
specify a limited period before the filing of short-form applications 
(FCC Form 175) during which applicants may enter into a settlement to 
resolve their mutual exclusivity.
    26. Following this 30-day period, the original licensee and third 
parties can file license applications for remaining unserved areas 
where licenses have not been issued or there are no pending 
applications. If the original licensee or a third party files an 
application, that application will be placed on public notice for 30 
days. If no mutually exclusive application is filed, the application 
will be granted, provided that a grant is found to be in the public 
interest. If a mutually exclusive application is filed, it will be 
resolved through an auction. The Wireless Bureau, by public notice, may 
specify a limited period before the filing of short-form applications 
(FCC Form 175) during which applicants may enter into a settlement to 
resolve their mutual exclusivity.
    27. A licensee obtaining spectrum that was lost through the 
Commission's ``keep-what-you-use'' rule will have one year from the 
date it is issued a license to complete its construction and provide 
signal coverage and offer service to the entire new license area. If 
the licensee fails to meet this construction requirement, its license 
will automatically cancel without Commission action and it will not be 
eligible to apply to provide service to this area on the same 
frequencies at any future date.
    28. Under the Commission's ``keep-what-you-use'' rules, the 
Commission will determine whether an area is unserved by applying a de 
minimis standard similar to that applied to cellular service, which 
provides that the geographic service area to be made available to new 
entrants must include a contiguous area of at least 130 square 
kilometers (50 square miles). Areas smaller than this will not be 
deemed unserved by the Commission, because auctioning and licensing 
smaller areas to new licensees could result in harmful interference to 
incumbent licensees. Accordingly, unserved areas that are smaller than 
130 square kilometers will continue to be a part of the licensee's 
license area. In those geographic areas that the Commission deems as 
served, the licensee will retain its exclusive spectrum rights, 
including the ability to transfer and lease these areas. The licensee 
also will have the opportunity to expand its service into the unused 
parts of its original license area.
(ii) Partitioning and Disaggregation
    29. Partitioning. Under the Commission's modifications of the 
Section 27.15(d) rules relating to geographic partitioning of new 700 
MHz Commercial Services licenses, the Commission establishes two 
options for partitioners and partitionees with regard to the newly 
adopted performance requirements discussed above.
    30. Under the first option, the partitioner and partitionee must 
each certify to the Commission that they will share responsibility for 
meeting the performance requirements for the entire original geographic 
license area. Under this option, the partitioner, partitionee, or both 
the partitioner and partitionee working together, can meet the four-
year and end-of-term construction benchmarks for the entire geographic

[[Page 48818]]

license area. If the parties fail to meet the four-year benchmark, they 
will each have their license term reduced by two years. If the parties 
meet the end-of-term construction benchmarks, they will retain the 
ability to continue to build out the unserved portion of their license 
areas. Parties that fail to meet the end-of-term benchmarks will be 
subject to a ``keep-what-you-use'' rule, under which they will each 
lose their authorization for unserved portions of their license areas, 
which will automatically cancel and return to the Commission for 
reassignment.
    31. Under the second option, the partitioner and partitionee must 
each certify that it will independently meet the applicable performance 
requirements for its respective partitioned service area. If the 
partitioner or partitionee fails to meet the four-year build-out 
requirement for its respective partitioned service area, then its 
license term will be reduced by two years. If the parties meet the end-
of-term construction benchmarks, they will retain the ability to 
continue to build out the unserved portion of their license areas. 
Parties that fail to meet the end-of-term benchmarks will be subject to 
a ``keep-what-you-use'' rule, under which they will lose their 
authorization for unserved portions of their license areas, which will 
automatically cancel and return to the Commission for reassignment.
    32. Disaggregation. With regard to the rules relating to 
disaggregation of new 700 MHz Commercial Services Band licenses, the 
Commission modifies Section 27.15(d) to provide that the disaggregator, 
disaggregatee, or both the disaggregator and disaggregatee working 
together, can meet the four-year and end-of-term construction 
benchmarks for the entire geographic license area. If either of the 
parties meets the four-year build-out requirement, then this 
requirement is considered to be satisfied for both parties. If neither 
of the parties meets the four-year build-out requirement, then each of 
their license terms will be reduced by two years. Similarly, if either 
of the parties meets the end-of-term build-out requirement, then this 
requirement is considered to be satisfied for both parties and they 
will retain the ability to continue to build out the unserved portion 
of their license areas. However, parties that fail to meet the end-of-
term benchmarks will be subject to an automatic ``keep-what-you-use'' 
rule, under which they will lose their authorization for unserved 
portions of their license areas, which will automatically cancel and 
return to the Commission for reassignment.
(iii) Open Platforms for Devices and Applications
    33. The Commission determines that for one commercial spectrum 
block in the 700 MHz Band--the Upper 700 MHz Band C Block (700 MHz C 
Block)--the Commission will require licensees to allow customers, 
device manufacturers, third-party application developers and others to 
use or develop the devices and applications of their choice, subject to 
certain conditions, so long as they meet all applicable regulatory 
requirements and comply with reasonable conditions related to 
management of the wireless network (i.e., do not cause harm to the 
network), as described further below. The Commission concludes, 
however, that it would not serve the public interest to mandate, at 
this time, requirements for open platforms for devices and applications 
for all unauctioned commercial 700 MHz spectrum, or to impose broader 
openness requirements, such as wholesale or interconnection 
requirements, for the 700 MHz C Block.
    34. Scope of Requirement for open platforms for devices and 
applications. 700 MHz C Block licensees subject to this requirement 
will not be allowed to disable features or functionality in handsets, 
such as ``locking'' handsets to prevent their transfer from one system 
to another, where such action is not related to reasonable network 
management and protection, or compliance with applicable regulatory 
requirements. In addition, 700 MHz C Block licensees may not establish 
network standards that block Wi-Fi access, MP3 playback ringtone 
capability, or other services that compete with wireless service 
providers' own offerings. Standards for third-party applications or 
devices that are more stringent than those used by the provider itself 
would likewise be prohibited. In addition, 700 MHz C Block licensees 
cannot exclude applications or devices solely on the basis that such 
applications or devices would unreasonably increase bandwidth demands. 
The Commission emphasizes that 700 MHz C Block licensees may not impose 
any discriminatory charges (one-time or recurring) or conditions on 
customers who seek to use devices or applications outside of those 
provided by the licensee. Further, 700 MHz C Block licensees may not 
deny access to a customer's device solely because that device makes use 
of other wireless spectrum bands, such as cellular or PCS spectrum. 
However, in accepting a multi-band device on its network, a 700 MHz C 
Block licensee is not required to extend the requirement for open 
platforms for devices and applications to other spectrum bands on which 
the provider operates.
    35. Reasonable network requirements permitted. The Commission 
emphasizes that it is not requiring wireless service providers to allow 
the unrestricted use of any devices or applications on their networks. 
Wireless service providers may continue to use their own certification 
standards and processes to approve use of devices and applications on 
their networks so long as those standards are confined to reasonable 
network management. For example, providers are free to choose their air 
interface technology, and to deny service to devices or applications 
that cannot operate on the same technology, and may restrict particular 
non-carrier devices and applications on their networks, specifically to 
ensure the safety and integrity of their networks. In particular, it is 
reasonable for wireless service providers to maintain network control 
features that permit dynamic management of network operations, 
including the management of devices operating on the network, and to 
restrict use of the network to devices compatible with these network 
control features. Standards to ensure that network performance will not 
be significantly degraded would also be appropriate.
    36. The Commission does not specify a particular process for 700 
MHz C Block licensees to develop reasonable network management and 
openness standards, but the Commission requires certain minimum steps 
to ensure that device manufacturers and application developers have the 
ability to design products for this spectrum in a timely manner. 
Specifically, a 700 MHz C Block licensee must publish standards no 
later than the time at which it makes such standards available to any 
preferred vendors (i.e., vendors with whom provider has a relationship 
to design products for the provider's network). The 700 MHz C Block 
licensee must also provide to potential customers notice of the 
customers' rights to request the attachment of a device or application 
to the licensee's network, and notice of the licensee's process for 
customers to make such requests, including the relevant network 
criteria. These network standards are expected to be non-proprietary, 
such that the standards would be open to any third party vendors and 
that the standards applied to third parties will be no more restrictive 
than those applied to the provider's preferred vendors. Providers must 
also establish a reasonable process for expeditiously

[[Page 48819]]

reviewing requests from manufacturers, application developers and 
consumers to employ devices and applications on their networks. If a 
provider denies such a request, it must offer a specific explanation 
and an opportunity for amendment of the request to accommodate the 
provider's concerns.
    37. The Commission encourages the development of industry-wide 
standards by an appropriate standards-setting body at the earliest 
possible date.
    38. Other regulatory requirements continue. The requirement to 
provide an open platform for devices and applications the Commission is 
imposing shall not override wireless service providers' obligations to 
ensure that their networks and devices comply with applicable 
regulatory requirements (e.g., power and emission limits, E911, CALEA, 
etc.). For example, with respect to E911, if a network provider accepts 
a non-carrier device or application and if the device or application 
subsequently causes a violation of the Commission's rules, the 
Commission will apply the same third-party liability provisions as in 
the wireline context.
    39. The Commission finds that a wireless carrier's obligations 
under its hearing aid compatibility rule, section 20.19 of the 
Commission's rules, are not affected by the openness obligations for 
700 MHz C Block licensees. Under the Commission's rules, the extent of 
a carrier's compliance with the hearing aid compatibility obligations 
is not affected by handsets that connect to its network but it does not 
itself ``offer'' to its subscribers. Thus, the need to comply with 
section 20.19 of the Commission's rules would not justify a provider's 
refusal to connect a device. Further, the Commission declines to alter 
its hearing aid compatibility obligations to specifically impose an 
obligation on 700 MHz C Block licensees to ensure the hearing aid 
compatibility of handsets that are connected to the network but not 
offered by the provider.
    40. Enforcement processes. The Commission intends to vigorously 
enforce the requirement to provide an open platform for devices and 
applications adopted for 700 MHz C Block licensees. The Commission will 
take appropriate enforcement action where necessary pursuant to the 
remedies available under its statutory authority, including 
forfeitures, license revocations, and cease-and-desist orders. A person 
or entity who believes a 700 MHz C Block licensee's refusal to attach a 
proposed device or application is a violation of the open platform 
rules adopted may file a complaint pursuant to the Commission's 
enforcement rules, including the Commission's formal and informal 
complaint processes, where applicable. The Commission sets forth 
certain presumptions for these complaints. Specifically, once a 
complainant sets forth a prima facie case that the 700 MHz C Block 
licensee has refused to attach a device or application in violation of 
the open platform requirements adopted, the licensee shall have the 
burden of proof to demonstrate that it has adopted reasonable network 
standards and reasonably applied those standards in the complainant's 
case. Further, where the 700 MHz C Block licensee bases its network 
restrictions on industry-wide consensus standards, the restrictions are 
afforded a presumption of reasonableness. The Commission commits to 
rule on any complaints filed within 180 days of receipt of such 
complaints. Interested parties also may file a petition for declaratory 
ruling where a particular practice has broad market impact. Through 
review of complaints and other relevant information, the Commission 
will monitor the ability of consumers, device manufacturers, and 
application developers to use or develop devices and applications for 
700 MHz C Block networks.
(iv) Use of Dynamic Spectrum Management Techniques
    41. In response to Google's first request, the Commission affirms 
that nothing in the Commission's rules generally prohibits 700 MHz 
licensees from using dynamic spectrum management practices. In response 
to Google's second suggestion, the Commission declines to mandate the 
use of dynamic spectrum management practices for 700 MHz Band 
licensees.
    42. The Commission concludes that licensees should retain 
significant flexibility with regard to the precise mechanisms they 
utilize when it comes to managing spectrum access to the network and 
among users. Of course, to the extent any licensee believes that the 
specific spectrum management mechanisms that Google proposes is 
appropriate or preferable, it is free to choose to utilize these 
mechanisms, consistent with the Commission's guidance above.
(v) Protection of 700 MHz Public Safety Operations
    43. The Commission shall continue to require Upper 700 MHz Band C 
Block licensees to meet the 76 + 10 log P and 65 + 10 log P out-of-band 
emission (OOBE) limits with respect to the public safety bands. 
However, the Commission will not require the Upper 700 MHz Band D Block 
licensee to meet OOBE limits with respect to the public safety 
broadband spectrum.
    44. The D Block licensee will still, however, be required to 
satisfy the 76 and 65 + 10 log P OOBE limits with respect to the 
narrowband portion of the public safety spectrum. Additionally, the 
Commission shall not require the D Block licensee and Public Safety 
Broadband Licensee to coordinate with one another to address potential 
overload interference, even though such licensees will be authorized on 
adjacent spectrum, because under the public/private partnership, as 
discussed above, the D Block licensee and Public Safety Broadband 
Licensee will be sharing the same infrastructure.
(vi) Licensee Eligibility
    45. The Commission declines to impose eligibility restrictions for 
the licenses in the 700 MHz Band. Given the number of actual wireless 
providers and potential broadband competitors, it is unlikely that 
incumbent local exchange carriers (ILECs), cable providers, or large 
wireless carriers would be able to behave in an anticompetitive manner 
as a result of any potential acquisition of 700 MHz spectrum.
b. 700 MHz Guard Bands
(i) Treatment of Reconfigured A Block
    46. Because the reconfigured Guard Band A Block will now be located 
at 757-758/787-788 MHz between the Upper 700 MHz Band C and D Blocks, 
and will no longer be adjacent to public safety narrowband spectrum, 
the Commission concludes that it is no longer necessary to apply the 
adjacent channel power (ACP) emissions criteria to the A Block. 
Instead, the Commission will apply OOBE limits, which are consistent 
with emission limits applicable to the C Block. Thus, A Block licensees 
are required to attenuate out-of-band by at least 43 +10log P dB. 
Further, the Commission finds that heightened OOBE criteria should 
continue to apply in order to provide adequate protection to public 
safety. Therefore A Block transmitter power must be attenuated to at 
least 76 + 10log P dB, in a 6.25 kilohertz bandwidth for base stations 
at 763 MHz, and 65 + 10log P dB for mobile units at 793 MHz.
    47. Frequency Coordination and the Cellular Architecture 
Prohibition. The Commission will no longer apply sections 27.601(d) and 
27.2(b) (requiring guard band users to employ frequency coordination 
procedures in cooperation with 700 MHz public safety coordinators, and 
prohibiting the use of

[[Page 48820]]

cellular architectures in the Guard Bands) to reconfigured A Block 
licenses.
    48. Removal of the 746-747 MHz A Block Guard Band. The Commission 
finds that it is unnecessary to retain the A Block Guard Band at 746-
747 MHz to shield Upper 700 MHz Band C Block operations from 
interference from high power operations allowed in the Lower 700 MHz 
Band C Block.
(ii) Treatment of Reconfigured B Block
    49. The Commission finds that it would not be prudent to make any 
changes that would introduce the possibility of increased interference 
to adjacent public safety operations. Any future operations in the 
Guard Band B Block will continue to be bound by the Commission's 
existing Guard Bands technical rules requiring frequency coordination 
and prohibiting the use of cellular system architectures. These 
continued technical restrictions on the B Block can be fully taken into 
account as the Commission considers future uses for the block. The 
Commission will, however, create additional flexibility by providing 
operations in the reconfigured B Block the option of employing either 
the existing ACP limits set forth in Section 27.53(d) of the 
Commission's rules, or the same OOBE limits used by other commercial 
licensees to protect public safety, i.e., 76 + 10log P dB per 6.25 kHz 
for base stations, and 65 + 10log P dB per 6.25 kHz for mobile units.
(iii) Treatment of PTPMS II Licenses
    50. To ensure interoperability in border areas with Canada, the 
Commission is modifying the PTPMS II licenses by relocating its Guard 
Band A Block license to 757-758 MHz and 787-788 MHz along with the 
``repacked'' Guard Band A Block licenses, and by shifting its Guard 
Band B Block licenses down 1 megahertz to 761-763 MHz and 791-793 MHz. 
Although PTPMS II has elected to remain under the existing terms of its 
licenses, the Commission concludes that, for purposes of regulatory 
parity, the Commission should apply to the PTPMS II A Block licenses 
the same technical rules that will apply to the reconfigured A Block 
licenses. The Commission also concludes that the existing B Block 
technical rules continue to apply to PTPMS II's B Block licenses given 
their adjacency with public safety spectrum.
(iv) License Terms
    51. The license terms for the A Block licenses, including the PTPMS 
II A Block licenses, shall extend to 10 years after the end of the DTV 
transition, through February 17, 2019, and subsequent license terms 
will be 10 years. However, the Commission will retain the existing 
license terms for the grandfathered PTPMS II B Block licenses, rather 
than extending them to match the other commercial licensees. 
Furthermore, the Commission does not provide a renewal expectancy to 
the PTPMS II B Block licenses, the terms of which will expire in 2015.
3. Auctions-Related Issues
a. Anonymous Bidding
    52. The Commission concludes that the public interest will be 
served if the upcoming auction of new 700 MHz Band licenses for which 
service rules are established today is conducted using anonymous 
bidding procedures. The Commission further concludes that 
implementation of anonymous bidding procedures during the upcoming 
auction of new 700 MHz Band licenses should not be contingent on a pre-
auction measurement of likely competition based on an eligibility 
ratio. The Commission has delegated to the Wireless Bureau authority to 
establish auction procedures based on comment solicited shortly prior 
to the auction. Consistent with that authority, the Commission 
delegates to the Wireless Bureau the discretion to adopt specific 
procedures implementing these conclusions, taking into account the 
further record developed during our standard pre-auction process for 
establishing auction procedures and the possibility that alternative 
licenses may be offered at auction as described below.
    53. Additionally, the Commission concludes that the record 
regarding the available 700 MHz Band licenses and the Commission's 
recent experience with anonymous bidding in other auctions indicate 
that the Commission's statutory mandates under Section 309(j)(3) of the 
Act would be better served by adopting anonymous bidding procedures for 
the upcoming auction of 700 MHz Band licenses. Such procedures should 
withhold from public release until after the auction closes any 
information that may indicate specific applicants' interests in the 
auction, including information such as their license selections and the 
identities of bidders placing bids or taking other bidding-related 
actions, such as withdrawals. The Commission further concludes that the 
implementation of anonymous bidding procedures in the upcoming auction 
of new 700 MHz Band licenses should not be contingent on the likely 
level of auction competition indicated by pre-auction bidder 
eligibility. Accordingly, the Commission directs the Wireless Bureau to 
propose and seek comment on detailed anonymous bidding procedures for 
the upcoming auction of the 700 MHz Band licenses consistent with these 
conclusions, including how anonymous bidding would impact a potential 
re-auction of one or more spectrum blocks if the reserve prices for the 
individual blocks are not met, and any additional continuation or 
alteration to the anonymous bidding rules necessary to preserve the 
integrity of the subsequent auction.
b. Declaratory Ruling on Anti-Collusion Rule Reporting Requirement
    54. To further its policy of preventing collusive behavior in 
Commission auctions, the Commission clarifies by declaratory ruling and 
conforming textual edit the obligation that applicants in Commission 
auctions have to report any communications of bids or bidding 
strategies that are prohibited by Section 1.2105(c)(1) of the 
Commission's rules. Pursuant to Section 1.2105(c)(6), any applicant 
that makes or receives such a communication shall report such 
communication in writing to the Commission immediately, and in no case 
later than five business days after the communication occurs. As noted 
in the Commission's Order adopting Section 1.2105(c)(6), the Commission 
cannot ``take on the impossible task of screening all applicant 
communications'' and, therefore, ``the responsibility for identifying 
potentially unauthorized communications [must fall] on auction 
applicants.'' The reports provided by applicants are essential to the 
Commission's ability to enforce its rule. Absent such reports, parties 
might find it easy to evade enforcement for extended periods of time, 
and possibly altogether.
    55. Accordingly, the reporting requirement ``obligate[s] parties to 
notify the Commission of communications that appear to violate the 
anti-collusion rule and to allow the Commission to determine whether a 
violation has occurred.'' Consistent with this purpose, applicants have 
a continuous obligation to make such reports extending beyond the five 
business days after the communication occurs. This declaratory ruling, 
and the conforming modification of Section 1.2105(c)(6) of the 
Commission's rules, expressly states the continuing nature of this 
obligation. The Commission can and will enforce the obligation so long 
as it remains unfulfilled. The Commission emphasizes the continuing 
nature of the duty to report to preclude any attempt to evade the 
obligation by waiting out the expiration of the statute

[[Page 48821]]

of limitations applicable for the enforcement of forfeitures and to 
reinforce the Commission's ability to detect collusion, which is 
critical to the Commission's ability to enforce and thereby discourage 
collusive behavior in Commission auctions.
c. Package Bidding
    56. The Commission concludes that package bidding with respect to 
licenses in the Upper 700 MHz Band C Block would serve the public 
interest by reducing the exposure problem that might otherwise inhibit 
bidders seeking to create a nationwide footprint. Accordingly, the 
Commission directs the Wireless Bureau, pursuant to its delegated 
authority and pre-auction process, to propose and implement detailed 
package bidding procedures for the auction of the Upper 700 MHz Band C 
Block licenses, taking into account the goals the Commission has 
articulated for package bidding and the concerns raised in this record. 
More specifically, the Wireless Bureau should propose an auction design 
that includes package bidding for the C Block licenses to facilitate 
the entry of a new nationwide competitor, without causing undue 
difficulty for bidders that are not interested in a nationwide license. 
The Wireless Bureau should also explore the use of package bidding for 
any blocks subject to re-auction in the event that a reserve price is 
not met.
    57. The Wireless Bureau, consistent with its delegated authority 
and pre-auction process, may revise its proposal prior to 
implementation in the auction. In order to facilitate compliance with 
the statutory deadlines applicable to the auction of 700 MHz Band 
licenses, the Wireless Bureau has delegated authority to conduct an 
auction without package bidding for the Upper 700 MHz Band C Block 
licenses in the event that currently unforeseen difficulties make it 
impracticable to implement package bidding for the C Block consistent 
with the goals the Commission has articulated here. Finally, consistent 
with its conclusions today, the Commission directs the Wireless Bureau 
to adopt procedures for the auction of licenses in other blocks of 700 
MHz Band spectrum without the use of package bidding.
d. ``New Entrant'' Bidding Credit
    58. The Commission concludes that it is not necessary to compound 
the discounts already offered to small new entrants by existing 
designated entity bidding credits, or to offer large, nationwide new 
entrants significant discounts on their bids.
e. Reserve Prices
    59. The Commission concludes that it should provide for separate 
aggregate reserve prices for each block of licenses to promote the 
Commission's statutory objective of recovering for the public a portion 
of the value of the public spectrum resource. If the auction results 
for the licenses in any block satisfy the aggregate reserve for that 
block, all licenses in the block will be assigned based on the auction 
results, subject to completion of the licensing process, including 
review of applicants' qualifications. The separate aggregate reserve 
prices should, taken together, reflect current assessments of the 
potential market value of this spectrum based on various factors 
including, but not limited to, the characteristics of this band and the 
value of other recently auctioned licenses, such as licenses for 
Advanced Wireless Services. In addition, the view of Congress as to the 
value of this spectrum, as reflected by the Congressional mandates for 
proceeds from the auction, should be given appropriate consideration.
    60. In the event that licenses are not assigned because the 
applicable block-specific aggregate reserve is not met, the Commission 
provides for a prompt auction of alternative, less restrictive licenses 
for the A, B, C, and E Blocks, subject to the same applicable reserves. 
The Commission's rules also provide for the possibility of re-offering 
the D Block license in a subsequent auction.
    61. Block-Specific Aggregate Reserve Price. The Commission 
concludes that the public interest requires a separate aggregate 
reserve price for each block of the 700 MHz Band licenses subject to 
competitive bidding in the upcoming auction. The reserve prices will be 
in addition to, and separate and apart from, any minimum opening bid 
amounts that may be established for purposes of the upcoming auction. 
If the aggregate reserve is met for any block, all licenses in that 
block that receive winning bids will be eligible for licensing subject 
to the completion of the Commission's review of long-form license 
applications.
    62. The Commission also concludes that it is appropriate to assess 
interest in licenses in this context on a block-by-block basis. The 
Commission directs the Wireless Bureau to adopt and publicly disclose 
block-specific aggregate reserve prices, pursuant to its existing 
delegated authority and its regular pre-auction process, consistent 
with the Commission's conclusions. Given the Commission's intent that 
the reserve prices should maximize the possibility of recovering an 
appropriate portion of the value of the public spectrum resource while 
enabling licensing as promptly as possible, the Wireless Bureau should 
establish the particular amounts of the block-specific aggregate 
reserves by taking into account a conservative estimate of market value 
based on auction results for AWS-1 spectrum licenses. More 
specifically, the Wireless Bureau should consider the following factors 
when setting the block-specific aggregate reserves. The detailed rules 
regarding the D Block license, the D Block licensee's required 
construction of a network to be shared by public safety service users, 
and the resulting limitations on the flexibility of the D Block 
licensee, should be given substantial weight in assessing the D Block's 
value. Based solely on geographic area and spectrum block size, AWS-1 
auction results might suggest a D Block reserve of $1.7 billion. 
However, in light of the D Block license conditions essential to the 
public safety purpose of the public/private partnership, it might be 
appropriate to expect the D Block licensee to contribute only about 75 
percent to 80 percent of such an amount, or about $1.33 billion. In 
addition, when determining relative valuation of other blocks, the 
Wireless Bureau should consider the relative valuation of differing 
blocks in the recent auction of AWS-1 licenses.
    63. Subsequent Auction of Alternative Licenses. The Commission 
recognizes that it is possible that the auction results may not satisfy 
one or more of the block-specific reserves. In that event, the 
Commission establishes a process to enable the assignment of 
alternative licenses for the A, B, C, and E Blocks of the 700 MHz Band 
as soon as possible in order to promote the speedy deployment of 
services utilizing 700 MHz Band spectrum. Under the Commission's rules, 
the license for the D Block may also be re-offered in a subsequent 
auction..
    64. The Commission also establishes a process to enable the 
assignment of alternative licenses as soon as possible in the event 
that the relevant block-specific aggregate reserve price is not met 
when those licenses are first offered. Specifically, the Commission 
will offer the more flexible, less conditioned licenses described below 
in the A, B, C, and E Blocks as soon as possible after the first 
auction. Given the unique character of the D Block license conditions, 
the Commission leaves open the possibilities of reevaluating those 
conditions or of promptly offering that license again in a subsequent 
auction, in the event the D Block-specific reserve is not met.

[[Page 48822]]

    65. The Commission also provides that the auction of alternative 
licenses shall be subject to the same applicable reserve prices as the 
initial auction of licenses. The Wireless Bureau has delegated 
authority, however, to determine the appropriate means of 
reapportioning the reserve associated with the C Block in light of the 
Commission's determination to split the block into two blocks should a 
re-auction occur. This assures both that any initial and subsequent 
auctions will be as similar as possible (other than with respect to 
particular license terms) and also that the final assignment of the 
licenses will be based only on which licenses are able to serve the 
statutory goal of recovering a portion of the value of the public 
spectrum resource fixed in advance of the auction. Therefore, the 
Commission anticipates that the reserve price for the C Block would be 
approximately $4.6 billion.
    66. Performance Requirements for Alternative Licenses. The 
Commission concludes that a failure of the auction results for the A, 
B, and E Block licenses to satisfy the applicable block-specific 
aggregate reserve should result in a prompt offering of alternative 
licenses for the relevant block(s) that are subject to performance 
requirements with the population benchmark regime the Commission has 
adopted for the C Block licenses.
    67. Changes to Alternative C Block Licenses. The Commission 
concludes that in the event that auction results for conditioned Upper 
700 MHz C Block licenses do not satisfy the aggregate reserve price for 
the C Block, the Commission will offer as soon as possible licenses for 
the C Block without the open platform conditions. The Commission will 
also modify the C Block band plan. The Commission will reconfigure the 
bandwidth of the licenses to create two paired blocks of 6 and 5 
megahertz each, which the Commission will label the C1 and C2 Blocks. 
Further, the Commission will license the C1 Block based on EAs and the 
C2 Block based on REAGs.
    68. D Block License. The Commission concludes that it should not 
alter the conditions it has adopted today for the D Block license based 
solely on auction results. The Commission believes that a D Block-
specific aggregate reserve of approximately $1.33 billion is 
appropriate given the Commission's goal of enabling the recovery of a 
portion of the value of the spectrum while also permitting licensing to 
proceed as quickly as possible. If, however, the D Block-specific 
aggregate reserve is not met, the Commission concludes that it should 
leave open the possibility of re-offering the license on the same terms 
in a subsequent auction, as well as the possibility of re-evaluating 
all or some of the applicable license conditions.
    69. Auction Procedures. The Commission directs the Wireless Bureau 
to adopt for the auction of 700 MHz Band licenses, consistent with its 
delegated authority and pursuant to its routine pre-auction process, 
procedures that will enable a prompt subsequent auction of alternative 
licenses for any block in the event that the relevant block-specific 
aggregate reserve price is not met. This order's provisions with 
respect to the procedures for the initial auction, including with 
respect to anonymous and package bidding, will continue to apply in any 
subsequent auction. Furthermore, the same applicable reserve prices for 
each block of licenses shall apply in both the initial and subsequent 
auctions, recognizing that the Wireless Bureau will be required to 
determine how to allocate the block-specific reserve price for the C 
Block upon reauction under the split block plan. The Commission directs 
the Wireless Bureau, consistent with its delegated authority to adopt 
procedures that will comply with this order and preserve the integrity 
of any necessary reauction.
    70. The Commission directs the Wireless Bureau to establish 
procedures that limit qualified bidders in a subsequent auction of 
alternative licenses to those bidders that qualify to bid in the 
upcoming auction offering 700 MHz Band licenses in all of these blocks. 
Additionally, the Commission finds that the applicable ``down payment 
deadline'' for purposes of the Commission's anti-collusion rule shall 
be the ``down payment deadline'' established for the subsequent 
auction. In addition, because licenses for the same spectrum will be 
offered in both auctions, and the auctions will take place relatively 
close in time, the Commission concludes that the purpose of the 
Commission's anti-collusion rule requires that the provisions of that 
rule continue to apply until the down payment deadline for the 
subsequent auction. To assure that bidders will have sufficient bidding 
eligibility to pursue various bidding strategies, the Commission 
directs the Wireless Bureau to propose and adopt procedures that give 
applicants an opportunity to obtain bidding eligibility specifically 
for the alternative licenses, in addition to the initial licenses.
    71. The Wireless Bureau also should consider any additional 
procedures within its delegated authority that may enhance the 
effectiveness of the Commission's auction of 700 MHz Band licenses in 
either the initial or subsequent auction. In this regard, the 
Commission directs the Wireless Bureau to consider what procedures may 
be appropriate to deter bidders from actions that might thwart the 
assignment of licenses in either auction.
f. Statutory Deposit Deadline
    72. The Commission will deposit payments made by successful bidders 
towards their respective winning bids for their licenses--including 
upfront payments, deposits, and final payments held on deposit pending 
the completion of licensing--as of the deposit deadline, June 30, 2008, 
even in instances where the licensing process for those licenses has 
not yet been completed.

B. 700 MHz Public Safety Spectrum

    73. 700 MHz Public Safety Spectrum. The Commission adopts a revised 
band plan for the 700 MHz Public Safety Band. The Commission designates 
the lower five-megahertz paired (ten megahertz total) segment of the 
700 MHz Public Safety Band for broadband communications. The Commission 
consolidates the public safety narrowband operations in the upper 
paired 6-megahertz blocks (twelve megahertz total) of the 700 MHz 
Public Safety Band. The Commission adopts a one-megahertz paired guard 
band (768-769/798-799 MHz) between the broadband and narrowband 
segments. The Commission further concludes that in order to maximize 
the benefits of the 700 MHz Public/Private Partnership to deploy a 
nationwide, interoperable broadband communications network, narrowband 
operations presently in channels 63 and 68 (and the upper one megahertz 
of channels 64 and 69) must be cleared no later than the DTV transition 
date.
    74. The Commission requires the Upper 700 MHz Band D Block licensee 
to pay the costs associated with relocating public safety narrowband 
operations to the consolidated channels, in recognition of the 
significant benefits that will accrue to the D Block licensee. To 
facilitate the relocation, the Commission requires every 700 MHz Band 
public safety licensee, whether holding individual narrowband 
authorizations or operating pursuant to a State License, to provide the 
following information: (1) The total number of narrowband mobile and 
portable handsets in operation in channels 63 and 68, and the upper one 
megahertz of channels 64 and 69, (2) the total number of narrowband 
base stations serving these handsets in operation, (3) contact 
information for each identified set of

[[Page 48823]]

handsets and base stations, as appropriate, (4) the areas of operation 
of the mobile and portable units (such as defined by the jurisdictional 
boundaries of the relevant public safety departments), and (5) the 
location, in latitude and longitude, of the base stations, all as of 
August 30, 2007. This information must be filed with the Commission by 
October 23, 2007 and must include a certification, signed by an 
authorized party, stating that the information provided therein is 
true, complete, correct, and made in good faith. The Public Safety and 
Homeland Security Bureau will issue a public notice in advance of the 
effective date announcing the deadline for this certification 
requirement.
    75. The Commission prohibits authorization, whether pursuant to 
individual license or State License, of any new narrowband operations 
in channels 63 and 68, or in the upper one megahertz of channels 64 and 
69, as of August 30, 2007. The Commission cautions that any equipment 
deployed in these frequencies subsequent to August 30, 2007 will be 
ineligible for relocation funding.
    76. The Commission requires all Regional Planning Committees with 
approved plans or plans on file to submit amended plans consistent with 
the decisions herein by November 23, 2007.
    77. Public Safety Broadband Licensee. The Commission concludes that 
the public interest is best served by establishing a single nationwide 
Public Safety Broadband License for the 700 MHz public safety broadband 
spectrum. The Commission will assign this license to a single Public 
Safety Broadband Licensee that will be responsible for implementing the 
700 MHz public safety nationwide interoperable broadband network. This 
network will serve to provide public safety entities access to new 
broadband technologies across the country. Further, the Commission 
provides that the Upper 700 MHz D Block Licensee will gain access to 
the 700 MHz public safety broadband spectrum on a secondary preemptible 
basis through a spectrum leasing arrangement with the Public Safety 
Broadband Licensee.
    78. The Commission adopts its proposal to license the 700 MHz 
public safety broadband spectrum as a 10-megahertz block (comprised of 
paired, 5-megahertz blocks) under a nationwide geographic area license, 
and the Commission will assign this license to the Public Safety 
Broadband Licensee. The Commission establishes a variety of eligibility 
criteria for this entity and sets out a variety of responsibilities, 
including negotiating the Network Sharing Agreement with the winning 
bidder of the Upper 700 MHz Band D Block license. The Commission 
delegates authority to the Chief of the PSHSB to issue a public notice 
within thirty days of the release of this Second Report and Order 
soliciting applications for the Public Safety Broadband Licensee. The 
public notice shall specify the baseline criteria the Commission 
establishes herein, and describe the procedures and other requirements 
for submitting applications. The Commission will select the Public 
Safety Broadband Licensee and grant to it the Public Safety Broadband 
License consistent with the requirements and considerations set forth 
herein.
700 MHz Public/Private Partnership
1. Adoption of the 700 MHz Public/Private Partnership
    79. The Commission designates the D Block in the Upper 700 MHz Band 
to be licensed to a commercial entity on a nationwide basis for the 
purpose of entering into the 700 MHz Public/Private Partnership with 
the Public Safety Broadband Licensee, and the Commission adopts a 
number of conditions, requirements, and procedures to safeguard 
services to public safety entities and address concerns about the 
success of the partnership, as discussed more fully below.
2. Essential Components of Public/Private Partnership
a. Shared Wireless Broadband Network
    80. In order to have a successful public/private partnership with a 
shared nationwide interoperable broadband network infrastructure that 
meets the needs of public safety, the Commission adopts certain network 
requirements. The public/private partnership network will serve as the 
nation's public safety wireless broadband network infrastructure, so it 
must meet the requirements of a public safety communications network. 
Accordingly, the Commission requires that the network incorporate, at a 
minimum, the following:
    <bullet> Specifications for a broadband technology platform that 
provides mobile voice, video, and data capability that is seamlessly 
interoperable across agencies, jurisdictions, and geographic areas. The 
platform should also include current and evolving state-of-the-art 
technologies reasonably made available in the commercial marketplace 
with features beneficial to the public safety community (e.g., 
increased bandwidth).
    <bullet> Sufficient signal coverage to ensure reliable operation 
throughout the service area consistent with typical public safety 
communications systems (i.e., 99.7 percent or better reliability).
    <bullet> Sufficient robustness to meet the reliability and 
performance requirements of public safety. To meet this standard, 
network specifications must include features such as hardening of 
transmission facilities and antenna towers to withstand harsh weather 
and disaster conditions, and backup power sufficient to maintain 
operations for an extended period of time.
    <bullet> Sufficient capacity to meet the needs of public safety, 
particularly during emergency and disaster situations, so that public 
safety applications are not degraded (i.e., increased blockage rates 
and/or transmission times or reduced data speeds) during periods of 
heavy usage. In considering this requirement, the Commission expects 
the network to employ spectrum efficient techniques, such as frequency 
reuse and sectorized or adaptive antennas.
    <bullet> Security and encryption consistent with state-of-the-art 
technologies.
    <bullet> A mechanism to automatically prioritize public safety 
communications over commercial uses on a real-time basis and to assign 
the highest priority to communications involving safety of life and 
property and homeland security consistent with the requirements adopted 
in this Second Report and Order.
    <bullet> Operational capabilities consistent with features and 
requirements specified by the Public Safety Broadband Licensee that are 
typical of current and evolving state-of-the-art public safety systems 
(such as connection to the PSTN, push-to-talk, one-to-one and one-to-
many communications, etc.).
    <bullet> Operational controls of the network by the Public Safety 
Broadband Licensee to the extent necessary to ensure public safety 
requirements are met.
    <bullet> The Public Safety Broadband Licensee shall have the right 
to determine and approve the specifications of public safety equipment 
that is used on the network, and the right to purchase its own 
subscriber equipment from any vendor it chooses, to the extent such 
specifications and equipment are consistent with reasonable network 
control requirements established in the NSA.
    <bullet> A requirement, as explained more fully herein, that the 
Upper 700 MHz D Block licensee make available to the Public Safety 
Broadband Licensee at

[[Page 48824]]

least one handset that would be suitable for public safety use and 
include an integrated satellite solution capable of operating both on 
the 700 MHz public safety spectrum and on satellite frequencies.
    81. These requirements are to be implemented by the parties through 
the NSA, which will also include the detailed specifications of the 
network that the D Block licensee will construct. By allowing the 
parties to determine specific details, including the technologies that 
will be used, subject to approval by the Commission, the Commission 
provides them with flexibility to evaluate the cost and performance of 
all available solutions while ensuring that the shared wireless 
broadband network has all the capabilities and attributes needed for a 
public safety broadband network.
b. Spectrum Use
    82. The Commission permits the Public Safety Broadband Licensee to 
provide access on a secondary and preemptible basis to this spectrum, 
pursuant to the spectrum lease specified herein, for the purpose of 
enabling commercial operations within the band devoted to primary 
public safety broadband use. The Upper 700 MHz D Block licensee will 
gain access to this public safety broadband spectrum by means of a 
spectrum leasing arrangement with the Public Safety Broadband Licensee. 
The Commission also places additional conditions regarding the use of 
the D Block spectrum, including a requirement that the D Block licensee 
provide the Public Safety Broadband Licensee with priority access to 
the D Block license spectrum during emergencies.
    83. In addition, the Commission concludes that Section 337(a)(1) 
does not prohibit the Public Safety Broadband Licensee from entering 
into the lease for commercial operations, on a limited and preemptible 
basis as specified herein, of spectrum that is allocated for public 
safety services. Further, the Commission finds that Section 337(a)(2), 
which directs the Commission to allocate 36 megahertz ``for commercial 
use,'' does not prohibit the Commission from requiring the D Block 
licensee to provide public safety users with priority access to D Block 
license spectrum in an emergency. Priority service, although provided 
to public safety, will still be commercial, and will not appreciably 
impair the D Block licensee's ability to provide commercial services to 
other parties.
    84. Commercial Operations in Public Safety Spectrum on a Secondary 
Basis. The Commission permits the leasing of the Upper 700 MHz Band 
spectrum currently allocated for public safety services to commercial 
providers on a secondary, unconditionally preemptible basis. The Public 
Safety Broadband Licensee will be required to lease the public safety 
spectrum for use by the D Block licensee on a secondary basis pursuant 
to the requirements set forth in the NSA and established in this Second 
Report and Order. Thus, under the 700 MHz Public/Private Partnership 
framework adopted here, the D Block licensee will be obligated to 
construct a broadband network capable of operating on the public safety 
broadband spectrum for the benefit of the Public Safety Broadband 
Licensee, and the Public Safety Broadband Licensee will be obligated to 
permit secondary commercial operations on the public safety broadband 
spectrum pursuant to the spectrum leasing arrangement.
    85. The Commission will require that this spectrum leasing 
arrangement take the form of a long-term spectrum manager leasing 
arrangement for the full term of the license. By limiting the D Block 
licensee's secondary use of the Public Safety Broadband Licensee's 
spectrum to leased access under a spectrum manager leasing arrangement, 
subject to the conditions the Commission is placing on the nature of 
that access, the Commission thus ensures that the Public Safety 
Broadband Licensee has the regulatory means (and obligation) to 
preserve the fundamental public safety function of the band. Moreover, 
the Public Safety Broadband Licensee's ultimate control over the D 
Block licensee's use of this band, coupled with the operational 
flexibility accorded the D Block licensee under a spectrum manager 
leasing arrangement, should provide an appropriate balance between 
commercial and public safety operations in the public safety broadband 
spectrum. Specifically, the spectrum manager leasing arrangement 
permits the D Block licensee to construct a network to serve its 
business needs, yet preserves the network infrastructure required for 
primary public safety use in the Public Safety Broadband Licensee's 
band.
    86. As further conditions on the spectrum leasing arrangement 
authorized here, the D Block licensee's commercial operations in the 
public safety spectrum must not cause interference to primary users 
(i.e., public safety users) and must accept interference from primary 
users at all times. To help ensure that commercial secondary use 
complies with these limitations, in the public safety broadband 
spectrum the Commission will require that the network be designed so as 
to automatically assign priority to public safety users, to the 
exclusion and/or immediate preemption of any commercial use on a 
dynamic, real-time priority basis, and that network specifications are 
sufficient to guarantee that public safety users suffer no harmful 
interference or interruption or degradation of service due to 
commercial operations in the public safety broadband spectrum.
    87. Priority Public Safety Access to Commercial Spectrum During 
Emergencies. As part of its responsibilities in managing the shared 
wireless broadband network, the Commission requires the D Block 
licensee to provide the Public Safety Broadband Licensee with priority 
access, during emergencies, to the spectrum associated with the D Block 
license (in addition to the 700 MHz public safety broadband spectrum). 
In determining what constitutes an emergency, the Commission agrees 
with Frontline that the definition of an ``emergency'' for this purpose 
should be left to negotiation between the parties. The Commission 
requires the parties to define ``emergency'' for purposes of priority 
access to D Block license spectrum as part of the NSA.
    88. The Commission recognizes that there may be occasions when the 
parties are unable to agree that an emergency situation requires 
priority access to the D Block license spectrum, especially in 
circumstances that do not clearly fall within the definition of 
``emergency'' negotiated by the parties in the NSA. On these occasions, 
the Public Safety Broadband Licensee may request that the Commission 
declare, on an expedited basis, that particular circumstances warrant 
emergency priority access. In order to facilitate this process and 
ensure a prompt response, the Commission delegates authority to the 
Defense Commissioner to decide these requests and amends Section 0.181 
of the Commission's rules to reflect this new duty.
    89. Under emergency conditions, all public safety entities in the 
affected area will have real-time access, as needed, to all D Block 
license spectrum on a priority basis over commercial traffic and will 
preempt ongoing commercial traffic to the extent necessary. In this 
regard, the Commission requires the D Block licensee to provide 
appropriate warnings to its commercial customers about the potential 
interruption of their service during emergencies due to preemption by 
public safety users. The NSA should address how the D Block licensee 
will satisfy this obligation, including, for example, encouraging the

[[Page 48825]]

use of devices that can access spectrum other than the D Block. The NSA 
must also recognize that emergency 911 calls from commercial users also 
play a critical role in safeguarding public safety and should be 
accorded some level of priority, which may be lower priority than 
public safety communications but will not be subject to interruption of 
ongoing calls by public safety users and will have priority over all 
other commercial uses.
    90. Secondary Markets Rules. In permitting the Public Safety 
Broadband Licensee to enter into this spectrum leasing arrangement 
subject to the conditions set out in this order, the Commission waives 
the spectrum leasing policies and rules insofar as they prohibit public 
safety licensees from entering into spectrum leasing arrangements for 
commercial operations.
c. Performance Requirements
    91. The Commission adopts specific performance requirements that 
include three population-based build-out benchmarks that cover the 
nationwide D Block license area. Specifically, the Commission will 
require the D Block licensee to provide signal coverage and offer 
service to at least 75 percent of the population of the nationwide D 
Block license area by the end of the fourth year, 95 percent of the 
population of the nationwide license area by the end of the seventh 
year, and 99.3 percent of the population of the nationwide license area 
by the end of the tenth year. To meet these requirements, the D Block 
licensee must use the most recently available U.S. Census Data. The 
Commission concludes that the build-out requirements being imposed will 
ensure that public safety needs are met.
    92. In order to ensure that less populous areas are not neglected 
in the D Block licensee's build-out efforts, the Commission adopts 
certain additional measures to encourage coverage in those areas. 
Accordingly, the Commission requires that the D Block licensee meet the 
Commission's initial population benchmarks based on a build-out 
schedule specified in the NSA consistent with the public safety needs. 
The Commission also requires the D Block licensee to offer at least one 
handset suitable for public safety use that includes an integrated 
satellite solution pursuant to the terms, conditions, and timeframes 
set forth in the NSA.
    93. The Commission's three population-based construction benchmarks 
will take effect beginning on February 17, 2009. This is the 
statutorily imposed DTV transition date and is the same date that 
build-out obligations for the other unauctioned commercial 700 MHz Band 
licensees will begin to take effect. Thus, the Commission's four, 
seven, and ten year construction benchmarks for the D Block licensee 
will be calculated as starting from February 17, 2009. Use of this date 
provides regulatory parity and it recognizes that the DTV transition 
will not be completed until this date. The Commission notes that the D 
Block licensee may begin constructing its system prior to February 17, 
2009, and may begin operating its system prior to that date so long as 
it provides appropriate interference protection to incumbent co-channel 
and adjacent channel broadcasters.
    94. The Commission will apply the three population-based 
construction benchmarks over the nationwide D Block license area. 
Accordingly, the D Block licensee must employ a signal level sufficient 
to provide adequate service to the relevant percentage of the 
population over the nationwide D Block license area. Moreover, the 
Commission requires that the network and signal levels employed to meet 
these benchmarks be adequate for public safety use, as defined in the 
Shared Wireless Broadband Network sub-section herein and further 
defined by the NSA, and that the services made available be appropriate 
for public safety entities in those areas. In particular, the 
Commission requires as a mandatory provision of the NSA that the D 
Block licensee and Public Safety Broadband Licensee negotiate inclusion 
into the build-out schedule coverage of major highways and interstates, 
as well as incorporated communities with a population in excess of 
3,000, as suggested by APCO, IACP and IAFC. In addition, to the extent 
that the D Block licensee chooses to provide commercial services to 
population levels in excess of the relevant benchmarks, the D Block 
licensee will be required to make the same level of service available 
to public safety entities.
    95. In certain limited circumstances, the Commission will permit 
the D Block licensee to modify these population-based construction 
benchmarks where the D Block licensee and the Public Safety Broadband 
Licensee reach agreement and the full Commission gives its prior 
approval for a modification. As with other commercial 700 MHz Band 
licensees, the D Block licensee will be required to demonstrate 
compliance with the Commission's adopted benchmarks by filing with the 
Commission within 15 days of passage of the relevant benchmarks a 
construction notification comprised of maps and other supporting 
documents certifying that they have met the Commission's performance 
requirements. The construction notification, including the coverage 
maps and supporting documents, must be truthful and accurate and not 
omit material information that is necessary for the Commission to make 
a determination of compliance with the Commission's performance 
requirements. However, unlike the other commercial licenses and because 
of the nature of the partnership established herein, the D Block 
licensee will not be subject to a ``keep-what-you-use'' rule. Rather, 
the Commission will strictly enforce these build-out requirements and, 
if the D Block licensee fails to meet a construction benchmark, the 
Commission may cancel its license, depending on the circumstances.
d. Network Sharing Agreement (NSA) and Mandatory Provisions
    96. The Commission establishes that the relationship between the 
Public Safety Broadband Licensee and the D Block licensee will be 
governed by the Network Sharing Agreement (NSA) to be negotiated by the 
parties, and such other separate agreements as the Commission may 
require or allow, and the Commission provides that compliance with the 
terms of the NSA shall be a regulatory condition of the D Block 
license. Breach of this licensing condition may, at the determination 
of the Commission, result in remedies including, but not limited to, 
cancellation and subsequent award of the license. The Commission also 
requires all the parties to negotiate in good faith and finds that many 
of the details of their agreement are appropriately left to them to 
negotiate and reach agreement on (subject to ultimate Commission 
approval of the NSA). In the discussion that follows, certain elements 
that the Commission requires the parties to address in the NSA are 
enumerated.
    97. Rights and Obligations Under the Public/Private Partnership. 
The NSA must incorporate all of the substantive rights and obligations 
of the parties that the Commission has established in this Second 
Report and Order that are relevant to the Public/Private Partnership. 
Once the NSA is approved by the Commission and executed by the parties, 
assuming all other licensing requirements are met, the Commission will 
grant the D Block license to the winning bidder and compliance with the 
terms and conditions of the NSA will be license conditions for both the 
D Block license and the Public Safety Broadband License. The Commission

[[Page 48826]]

requires the parties to submit an executed NSA within 10 business days 
of the Commission's approval of the agreement, and if the parties fail 
to submit the NSA, the Commission will deny granting the D Block 
license until the NSA is submitted.
    98. Term of Agreement. The NSA must have a term not to exceed 10 
years from February 17, 2009, which coincides with the term of the D 
Block license established elsewhere in this Second Report and Order. At 
the conclusion of the initial, and subsequent, term of the agreement, 
the NSA may be renewed along with the D Block license, subject to 
Commission approval. The Commission finds it appropriate to ensure that 
consideration of whether to renew the D Block license and whether to 
renew or modify the NSA whose performance is a condition of that 
license should occur at the same time.
    99. Service Fees. The Commission finds that all service fees for 
public safety service should be specified in the NSA, including any 
applicable fees for normal network service and fees for priority access 
to the D Block in an emergency. The Commission finds that the parties 
should be left to negotiate reasonable rates in good faith, taking into 
account all appropriate factors, including but not limited to the 
public/private nature of the partnership. The Commission expects, 
however, that the parties will negotiate a fee structure for priority 
access to the D Block in an emergency that will protect public safety 
users from incurring unforeseen (and unbudgeted) payment obligations in 
the event that a serious emergency necessitates preemption for a 
sustained period. The Commission also encourages the parties to 
negotiate a fee agreement that incorporates financial incentives for 
the commercial licensee based on the number of public safety entities 
and localities that subscribe to the service.
    100. The Commission also expects that fees will be such that public 
safety entities are able to afford the services that they require for 
their public safety functions, and that the terms will best serve the 
public interest goals established in this Second Report and Order 
regarding the public/private partnership. Should it prove necessary, 
the Commission has established various remedies to resolve disputes 
over NSA terms, and the Commission can exercise one of these options to 
ensure that fees charged are reasonable.
    101. Detailed Build-Out Schedule. The NSA must include a detailed 
build-out schedule that is consistent with the mandatory national 
build-out and performance benchmarks that the Commission has 
established for the D Block licensee elsewhere in this Second Report 
and Order. The Commission expects the NSA to identify the specific 
areas of the country that will be built out by each of the construction 
deadlines that the Commission has established. Because the Commission 
must ensure that smaller towns and rural areas are not neglected in the 
D Block licensee's build-out efforts, the Commission requires the D 
Block licensee to meet the Commission's initial population benchmarks 
by not exclusively concentrating on building out high population areas. 
In this regard, the Commission agrees with public safety commenters to 
the extent that the Commission requires the parties to include in the 
NSA coverage for major highways and interstates, as well as such 
additional areas that are necessary to provide coverage for all 
incorporated communities with a population in excess of 3,000, unless 
the Public Safety Broadband Licensee and the D Block licensee jointly 
determine, in consultation with a relevant community, that such 
additional coverage will not provide significant public benefit. The 
Commission also requires an estimated cost for each specified area of 
the build-out, which will assist the Commission in efforts to ensure 
that the build-out schedule is achieved.
    102. Modifications to the NSA. The Commission obligates the parties 
to act in good faith in all dealings with each other and to abide by 
the terms of the agreement. The NSA must specify that any major 
modifications to the terms of the NSA, related agreements or documents, 
or such other agreements as the Commission may require or allow, 
require not only the agreement of the parties, but also prior 
Commission approval. All other modifications require prior approval by 
the Chiefs of the Wireless Bureau and the Public Safety and Homeland 
Security Bureau on delegated authority.
e. License Term and Renewal Expectancy for the Public/Private 
Partnership
    103. Consistent with the decision made for other commercial 
licensees in the 700 MHz Report and Order, the Commission decides that 
a term not to exceed 10 years from February 17, 2009, should be used 
for initial authorization in the D Block license. The D Block license 
would be auctioned as a single, nationwide license to provide for 
commercial service in the ``D Block,'' and to build and operate a joint 
broadband public safety and commercial network for public safety use.
    104. At the end of the 10 year term, the D Block licensee will be 
allowed to apply for license renewal, although its renewal will be 
subject to its success in meeting the material requirements set forth 
in the NSA as well as all other license conditions, including meeting 
the performance benchmark requirements. Because the initial NSA term 
will expire at the same time, the D Block licensee must also file a 
renewed or modified NSA for Commission approval at the time of its 
license renewal application. Given these detailed license renewal 
requirements, the Commission declines to impose a separate substantial 
service showing.
    105. The material requirements set forth in the NSA are conditions 
of the D Block license, including the network build-out schedule and 
satisfaction of the agreed-upon public safety specifications regarding 
the network construction and operations, in order to obtain a renewal 
of the license. Regarding the D Block license renewal application, the 
Commission finds the material requirements in the NSA to be those 
requirements that are the ``essence'' of the agreement between the 
parties, including but not limited to the build-out schedule for the 
public safety network and other provisions that serve the fundamental 
purpose of the NSA, as well as any time limits on the performance of 
those provisions.
f. Public Safety Satellite Support
    106. The Commission requires that the D Block licensee make 
available to public safety users at least one handset that includes a 
seamlessly integrated satellite solution. The Commission does not 
require that this handset use any specific technology, only that it be 
capable of operating both on the 700 MHz public safety spectrum and on 
the satellite frequency bands and/or systems of the satellite service 
providers with which the Public Safety Broadband Licensee has 
contracted for satellite service. The Commission does not, however, 
require that the D Block licensee incorporate support for satellite 
communications into the infrastructure of the shared terrestrial 
network.
    107. The Commission expects that the D Block licensee, satellite 
companies, and handset manufacturers will take steps to facilitate the 
development of handsets with seamlessly integrated satellite solutions. 
However, the Commission does not establish an immediate obligation upon 
the D Block licensee to make satellite-capable handsets available. 
Rather, the Commission will require the D Block

[[Page 48827]]

licensee to begin offering at least one handset suitable for public 
safety use that includes a seamlessly integrated satellite solution 
pursuant to the terms, conditions, and timeframes set forth in the NSA.
    108. The Commission declines to mandate the incorporation of 
support for satellite communications by the D Block licensee into the 
infrastructure of the shared network. The Commission believes that the 
D Block licensee and the Public Safety Broadband Licensee will be in 
the best position to determine whether and when satellite support 
within the terrestrial infrastructure is appropriate, and by what 
method it should be implemented, such as by negotiating a side-
agreement with existing satellite service providers to use their excess 
capacity for public safety communications.
g. Local Public Safety Build-Out and Operation
    109. The Commission concludes that no public safety entity will be 
required to use the 700 MHz public safety broadband network, and that 
any participation in the 700 MHz nationwide public safety network by 
individual public safety entities will be entirely voluntary. The 
Commission also concludes, however, that the Upper 700 MHz Band D Block 
licensee should have the exclusive right to build and operate the 
shared wireless broadband network using the 700 MHz public safety 
broadband spectrum, except that the Commission permits public safety 
entities to construct local broadband networks in the 700 MHz public 
safety spectrum in two limited circumstances subject to conditions 
specified below. The Commission further concludes that public safety 
entities should have a limited right to build out wideband networks, 
again with conditions and restrictions.
    110. Rights to Early Build-out in Areas with a Build-out 
Commitment. First, in an area where the D Block licensee has, in the 
NSA, committed to build out by a certain date, but where a public 
safety entity wishes a more immediate build-out, the public safety 
entity may, with the pre-approval of the Public Safety Broadband 
Licensee, have the network constructed in that area at the public 
safety entity's own expense. The network must be capable of operating 
on the shared, interoperable broadband network that operates on both 
the D Block licensee's commercial block and the public safety 700 MHz 
broadband spectrum, and must meet all of the same requirements and 
specifications as the shared network required under the NSA.
    111. The Commission authorizes two options for implementing the 
early build-out of an area of the broadband network at the discretion 
of the public safety entity. Under the first option, the public safety 
entity (or the Public Safety Broadband Licensee acting on its behalf) 
may construct the network in that area. Upon construction, it must 
transfer the network to the D Block licensee, which shall integrate 
that network into the shared national broadband network constructed 
pursuant to the NSA. Under the second option, the public safety entity 
may require the D Block licensee to construct the network in that area 
earlier than scheduled, but the public safety entity must provide all 
funds necessary for the early construction of the network, including 
any and all additional resource and personnel costs. As with the first 
option, upon construction, the D Block licensee will operate and manage 
the network as an integrated part of the larger shared national 
broadband network.
    112. In either case, the Public Safety Broadband Licensee, the D 
Block licensee, and the public safety entity must, prior to any 
construction, negotiate an amendment to the NSA regarding this part of 
the network, specifying ownership rights, fees, and other terms, which 
may be distinct from the analogous terms governing the shared national 
broadband network. Absent agreement to the contrary, the amendment must 
provide that by a date no later than the build-out date specified for 
that area in the NSA, the D Block licensee will receive full ownership 
rights and will in turn compensate the public safety entity (or the 
Public Safety Broadband Licensee, where appropriate) for the 
construction of the network. The right to compensation for the build-
out shall be limited, again absent agreement to the contrary, to the 
cost that would have been incurred had the D Block licensee constructed 
the network itself in accordance with the original terms and 
specifications of the NSA.
    113. The Commission points out that early build-out in this 
scenario is a right to construct only. Operations may not commence on 
the network until the network is transferred to the D Block licensee. 
Operations on early build-out networks would then be conducted under 
the authority of the Public Safety Broadband Licensee's license, in the 
same manner as any network operations that occur following construction 
by the D Block licensee under the build-out schedule contained in the 
NSA.
    114. Starting on the date of compensation for build-out, or on the 
build-out due date of the NSA if there is no specified date of 
compensation, the D Block licensee may include the early build-out for 
purposes of determining whether it has met its national build-out 
benchmarks and the build-out requirements of the NSA.
    115. The Commission notes that the National Capital Region (NCR) 
has commenced construction and operation of a broadband network in the 
700 MHz Band pursuant to an experimental license and has been granted a 
waiver in anticipation of its application for a license to operate such 
system. The NCR consists of eighteen jurisdictions: The District of 
Columbia, Montgomery and Prince Georges Counties of Maryland, and the 
cities of Gaithersburg, Rockville, Takoma Park, Bowie, College Park, 
and Greenbelt; Arlington, Fairfax, Loudon and Prince William Counties 
of Virginia, and the cities of Alexandria, Falls Church, Town of 
Leesburg, Manassas, and Manassas Park. Although NCR cannot now obtain a 
license, as such license will be held by the Public Safety Broadband 
Licensee, nothing herein should be construed as preventing or limiting 
NCR's ability to continue to operate the broadband network they have 
built within the 700 MHz broadband allocation (subject to NCR properly 
obtaining a grant of a request for Special Temporary Authority for such 
continued operation) until such time as the NCR network is integrated 
into the nationwide, interoperable broadband network in accordance with 
the build-out plan set forth in the NSA.
    116. The Commission advises the Public Safety Broadband Licensee to 
consult NCR in negotiating the build-out date for the nationwide, 
interoperable network, as the build-out plan in the NSA should allow 
NCR a reasonable time to make any modifications necessary to 
incorporate its network into the nationwide, interoperable broadband 
network by the date set forth in the NSA for build out of the portion 
of the nationwide, interoperable broadband network in the NCR. NCR 
will, of course, be expected to comply with the requirements set forth 
herein for public safety entities exercising the right to early build 
out, and NCR shall be entitled to the same rights and compensation as 
set forth herein for public safety entities electing to exercise their 
right to early build out.
    117. The Spectrum Coalition would have the Commission give local 
public safety entities, including NCR, the ability to ``opt-out'' of 
the national, interoperable broadband network, yet operate individual 
systems in the 700 MHz Band. The Commission flatly rejects such 
arguments; local public safety entities do not have to participate

[[Page 48828]]

in the nationwide network, but they may not ``opt-out'' in favor of 
using the 700 MHz broadband spectrum for individual networks. As a 
general matter, as we have discussed above, there are numerous benefits 
to having a single Public Safety Broadband Licensee.
    118. Rights to Build Out and Operate In Areas without a Build-out 
Commitment. The Commission acknowledges that, even under the stringent 
population-based build-out requirements that the Commission is 
adopting, there will be areas of the nation in which the NSA does not 
require the D Block licensee to build out the shared broadband network. 
In such areas, under the policies and procedures discussed below, the 
Commission provides that a public safety entity may build out and 
operate a separate, exclusive network in the 700 MHz public safety 
broadband spectrum at any time, provided the public safety entity has 
received the approval of the Public Safety Broadband Licensee and 
operates its independent network pursuant to a spectrum leasing 
arrangement into which the public safety entity has entered with the 
Public Safety Broadband Licensee.
    119. Under this option, the public safety entity need not obtain 
any agreement with the D Block licensee. The Public Safety Broadband 
Licensee must, however, provide the D Block licensee with notice of the 
public safety entity's intent to construct in that area within 30 days 
of receipt of a request from a public safety entity wishing to exercise 
this option, and shall inform the D Block licensee of the public safety 
entity's anticipated build-out date(s). This affords the D Block 
licensee the opportunity, in conjunction with the Public Safety 
Broadband Licensee, to reconsider whether the NSA should be revised to 
include a commitment to build out the area that the public safety 
entity has identified. Further, if within 30 days of receiving such 
notice the D Block licensee certifies in writing to the Public Safety 
Broadband Licensee that it will build out the shared network in the 
area, within a reasonable time of the anticipated build-out date(s), as 
determined by the Public Safety Broadband Licensee, then the public 
safety entity shall not have the option of building out and operating 
its own separate exclusive network in the area. Under this 
circumstance, the D Block licensee, working with the Public Safety 
Broadband Licensee, must then adopt an appropriate amendment to the 
NSA, and such commitment would become enforceable against the D Block 
licensee as part of its build-out requirements. The Commission also 
notes that, as an alternative in such cases, the public safety entity 
would be able to complete early build-out under the procedures 
discussed above.
    120. If the public safety entity pursues this option to build out a 
separate network, the Public Safety Broadband Licensee and public 
safety entity, as its spectrum lessee, must file a spectrum leasing 
arrangement with the Commission prior to the public safety entity 
commencing any operations. The Commission will require that the 
spectrum leasing arrangement take the form of a spectrum manager 
leasing arrangement under the Commission's spectrum leasing rules. The 
Commission will not permit such arrangements to take the form of long-
term de facto transfer spectrum leasing arrangements. The Commission 
believes that it is necessary that the Public Safety Broadband Licensee 
retain not only de jure control of all of the spectrum associated with 
the Public Safety Broadband License, even in areas not scheduled for 
build-out, but also de facto control of the spectrum leased for use by 
public safety entities. As a result, the Commission finds it essential 
that, as provided under the spectrum manager leasing rules and as 
distinguished from the long-term de facto transfer leasing arrangement, 
the Public Safety Broadband Licensee maintain actual oversight and 
working knowledge of its spectrum lessees' activities in order to 
ensure compliance with all requirements of the Communications Act, the 
Commission's rules, and the obligations set forth in this Second Report 
and Order.
    121. In addition to compliance with the Commission's spectrum 
leasing requirements, the public safety spectrum lessee must ensure 
that the following conditions are met: (1) The network must provide 
broadband operations; (2) the network must be fully interoperable with 
the shared national broadband network required by the NSA; (3) the 
network must be available for use by any public safety agency in the 
area; and (4) the network must satisfy any other terms or conditions 
required by the Public Safety Broadband Licensee. These conditions 
specifically must be included in the spectrum manager lease agreement 
entered between the Public Safety Broadband Licensee and the public 
safety entity. Consistent with Section 90.551 of the Commission's 
rules, which contains the general 700 MHz public safety spectrum 
construction requirements, the lease agreement between the parties must 
specify that the public safety entity must construct and place into 
operation its network within one year of the effective date of the 
spectrum manager leasing arrangement, and if not, then the Public 
Safety Broadband Licensee will terminate the spectrum leasing 
arrangement pursuant to the Commission's rules. The separate network 
need not, however, meet the other specifications of the D Block 
licensee's shared national network. In particular, absent agreement of 
the public safety entity, the Public Safety Broadband Licensee, and the 
D Block licensee, the separate network may not operate using any 
spectrum associated with the D Block license. Finally, as required by 
the Commission's spectrum leasing rules, the Public Safety Broadband 
Licensee must notify the Commission of the spectrum manager leasing 
arrangement as part of the Commission's spectrum manager lease 
notification procedures. The notice must identify the public safety 
entity leasing the spectrum and the particular areas of spectrum leased 
as part of this build-out option.
    122. The Commission emphasizes that under no conditions may a 
public safety entity construct a network using 700 MHz public safety 
broadband spectrum in an area absent the approval of the Public Safety 
Broadband Licensee. Nothing in this determination should be construed, 
however, to prohibit the Public Safety Broadband Licensee from being 
responsive to requests from localities to opt out and provide separate 
network services pursuant to a spectrum lease approved by the Public 
Safety Broadband Licensee and the Commission.
    123. Conditions for Waiver to Allow Limited and Temporary Wideband 
Operations. The Commission prohibits wideband operations in the public 
safety allocation of the 700 MHz Band, subject to the limited 
exceptions set forth herein. The Commission will require public safety 
entities seeking to deploy wideband systems to satisfy the following 
conditions and restrictions.
    124. First, wideband operations in the 700 MHz public safety 
spectrum will be permitted only upon grant of a properly supported 
request for waiver of the requirement to conform to the band plan the 
Commission adopts herein, i.e., one that permits only broadband or 
narrowband operations. In the interests of ensuring the integrity of 
the public/private partnership for construction of a nationwide 
broadband, interoperable network, the Commission finds it necessary to 
consider requests to deploy wideband only in a waiver context. Requests 
for waiver to conduct wideband operations must be

[[Page 48829]]

accompanied by an application for authorization.
    125. Second, any petition for waiver must be accompanied by a 
letter from the Public Safety Broadband Licensee, confirming that the 
proposed wideband deployment is not inconsistent with the broadband 
deployment plan for the affected or adjacent service areas. The 
Commission encourages public safety entities seeking such waivers to 
cooperate with the Public Safety Broadband Licensee to reach agreement 
on the conditions, if any, to be placed on any wideband deployment, 
including the appropriate plan for transition to the nationwide 
broadband, interoperable network. All requests for waiver must include 
any agreed-upon conditions and transition plan.
    126. Third, except as discussed below, the Commission will restrict 
grants of waiver to the deployment of a wideband system in the 
consolidated narrowband spectrum or the internal public safety guard 
band. The Commission must limit any wideband operations in this manner 
in order to ensure the full preservation of the broadband segment. The 
Commission also believes that the regional planning committees will 
continue to serve an important role in overseeing and crafting 
appropriate spectrum use; to that end, petitions for waiver in the 
narrowband spectrum must also include a letter from the appropriate 
regional planning committee or state licensee confirming that the 
proposed wideband deployment will not disrupt any regional or state 
planning efforts that are underway. The Commission encourages the 
Public Safety Broadband Licensee to coordinate with the applicable 
regional planning committee or state licensee when these entities are 
asked to consider any wideband deployment in the narrowband portion of 
the public safety spectrum, to ensure proper coordination with existing 
and pending narrowband applications.
    127. If there are instances where spectrum in the narrowband 
segment or internal guard band is unavailable for wideband operations, 
the Commission will permit submission of request for waiver to operate 
in the upper 1.25 megahertz of the broadband allocation. The Commission 
emphasizes, however, that applicants seeking waiver relief to deploy 
wideband networks in the public safety broadband spectrum face a very 
high hurdle. As a threshold requirement, the Commission will consider 
requests for waiver to conduct wideband operations in the broadband 
allocation only upon submission of a substantially supported, detailed 
technical showing demonstrating why there is insufficient spectrum in 
the narrowband allocation or internal guard band to support the desired 
wideband operations. As with requests to conduct wideband operations in 
the narrowband segment or internal guard band, any request for waiver 
to conduct wideband operations in the upper 1.25 megahertz of the 
broadband allocation must be accompanied by a letter from the Public 
Safety Broadband Licensee confirming that the proposed wideband 
deployment is not inconsistent with the broadband deployment plan for 
the affected or adjacent service areas, and all requests for waiver 
must reflect any conditions and transition plan agreed upon by the 
petitioner and the Public Safety Broadband Licensee. The public safety 
entity seeking to establish wideband operations in the broadband 
segment must have first issued a request for proposal (RFP) that 
permitted interested parties to submit broadband proposals that are 
technically consistent with the Public Safety Broadband Licensee 
network. Finally, the wideband applicant must include with its waiver 
request proof that responses to the RFP proposing a broadband network 
were more costly, provided less coverage as measured by throughput at 
the network edge, or were otherwise inferior to the accepted wideband 
proposal.
    128. Notwithstanding anything herein to the contrary, the 
Commission will not entertain any request for waiver seeking to permit 
wideband operations in the broadband segment in areas scheduled for 
broadband deployment within the first three years of the build-out plan 
for the national public safety broadband network. In addition, 
consistent with the waiver discussion herein, the Commission will not 
grant any waiver request for any wideband deployment in the broadband 
segment that does not include a detailed plan, accompanied by 
attestation, specifying how and by what date the wideband applicant 
will integrate its proposed wideband system into the national broadband 
network. The Commission shall condition any waiver relief for wideband 
operations in the broadband segment upon acceptance of the applicant's 
integration plan. As a further condition of any wideband operations 
proposed in the broadband segment, the Commission will require all 
devices operating on the wideband system to be designed such that they 
also must be interoperable with the nationwide, broadband network. In 
order to ensure that the Commission's goals for the deployment of the 
nationwide broadband network are met, the authority granted for any 
wideband operations in the broadband segment will expire automatically 
upon the D Block licensee's initiation of service in areas where 
wideband has been deployed. Further, any Grandfathered Wideband STA 
operations or wideband authority granted by waiver in the public safety 
segment of the 700 MHz Band shall be secondary to primary narrowband or 
broadband applications, as applicable. Finally, as a condition of the 
grant of waiver allowing deployment of a wideband system in the 
broadband segment, a public safety entity must certify in its 
application and waiver request its acknowledgement that it may not seek 
reimbursement for any costs involved in converting the wideband system 
to the national broadband network upon completion of the broadband 
network in the subject area.
    129. License terms for wideband operations granted under waiver--
whether they are in the narrowband, internal guard band, or broadband 
segments of the 700 MHz public safety spectrum--will be limited to no 
more than five years, and may be granted for less time depending on the 
particular circumstances presented. The Commission must receive 
requests for renewal of the license granted pursuant to waiver request 
not less than 180 days prior to expiration of the license. Renewal 
requests must include a showing that continued operation of the 
wideband system is in the public interest. Renewal requests for 
wideband operations in the broadband segment also must be accompanied 
by a letter from the Public Safety Broadband Licensee confirming that 
continuing wideband operations are not inconsistent with the broadband 
deployment plan for the affected or adjacent service areas. The license 
term for any renewal of waiver will not exceed three years and a 
wideband waiver licensee may only receive a single extension. Any 
renewal of a wideband authorization shall continue to be on a secondary 
basis only to primary narrowband or broadband applications, as 
applicable. Finally, in light of the waiver process described above, 
the Commission finds it unnecessary to adopt any particular wideband 
interoperability standard.
3. Safeguards Relating to the Public/Private Partnership
a. Rules for Establishment, Execution and Application of the NSA
    130. The Commission specifically conditions the D Block license on 
the following requirements to ensure the establishment and execution of 
the NSA in a timely manner while safeguarding the public interest.

[[Page 48830]]

    131. Approval of NSA as Pre-Condition for Granting the D Block 
license. Because the terms of the NSA are critical to the success of 
the partnership, the D Block license will not be issued until the 
Commission has approved the NSA and following such approval, the 
parties execute the NSA and file an executed copy with the Commission.
    132. The Commission recognizes that the D Block licensee will be 
subject to an aggressive build-out schedule, and an applicant for the 
license may wish to commence certain initial construction activities 
prior to the grant of an authorization. The Commission does not 
prohibit the winning bidder of the D Block license from engaging in 
network build-out during the NSA negotiation period and prior to grant 
of the license, but to ensure that such build-out does not frustrate 
the interests of public safety or preempt the negotiations regarding 
the appropriate build-out schedule, the Commission requires that any 
such build-out occur only with the approval of the Public Safety 
Broadband Licensee. Similar to service rules for other spectrum 
licenses, such construction is conducted at the sole risk of the 
applicant, is subject to the Commission's authority to provide 
notification to stop such build-out, and cannot result in commercial 
operation unless and until the Commission has granted the D Block 
license.
    133. Timeframe for Negotiation. The Commission requires the parties 
to commence negotiations on the terms of the NSA on the date that the 
winning bidder of the D Block license files its long form application 
or the date on which the Commission designates the Public Safety 
Broadband Licensee, whichever is later, and the Commission further 
requires the parties to conclude negotiations not later than six months 
after the commencement date. As soon as the parties have reached an 
agreement on all the terms of the NSA, but not later than five days 
after the six month period for negotiation has expired, they must 
submit for Commission approval the NSA together with all agreements and 
other documents referred to in the NSA, including the agreement reached 
on the broadband technology standard. The Commission will act on the 
NSA within 60 days of receipt. If the parties have not reached 
agreement on all terms of the NSA by the end of the six-month period, 
they must notify the Commission not later than five days after the 
expiration of the six-month period of the terms agreed upon, the nature 
of the remaining issues and each party's position on each issue 
(whether in the form of final best offers, or a characterization of the 
parties jointly on the positions of the parties and reason for 
impasse), whether additional negotiation is likely to produce an 
agreement, and, if so, a proposed deadline for completing the 
agreement.
    134. Requirement of Good Faith. The Commission requires the parties 
to negotiate in good faith the specific terms of the NSA pursuant to 
the conditions, requirements, and guidance established in this Second 
Report and Order. The Commission also requires the parties to act in 
good faith in the performance of the NSA. To provide additional 
assurance that negotiations are proceeding in good faith, and except as 
explicitly set forth herein, the Commission will oversee the 
negotiation of the NSA, and will play an active role in the resolution 
of any disputes among the relevant parties (including the winning 
bidder for the D Block; its wholly owned subsidiary; the D Block 
licensee; the Operating Company; the Network Assets Holder; and the 
Public Safety Broadband Licensee), both resulting from the negotiations 
and once the parties are operating under the terms of the NSA.
    135. Progress Reports During Negotiations. The winning bidder for 
the D Block license shall file an initial report within 10 days of the 
commencement of the negotiations period certifying that active and good 
faith negotiations have begun, providing the date on which they 
commenced, and providing a schedule of the initial dates on which the 
parties intend to meet for active negotiations, covering at a minimum 
the first 30-day period. The Commission requires that two members of 
the Commission's staff, one from the Wireless Bureau, and one from the 
Public Safety and Homeland Security Bureau, be present at all stages of 
the negotiation of the NSA as neutral observers. The Commission does 
not intend, however that the staff act as arbitrators. Disputes must 
still come to the Commission for resolution. Beginning three months 
from the triggering of the six-month negotiation period, the winning 
bidder for the D Block license and the Public Safety Broadband Licensee 
must jointly provide detailed reports, on a monthly basis and subject 
to a request for confidential treatment, on the progress of the 
negotiations throughout the remainder of the negotiations. These 
reports should include descriptions of all material issues that the 
parties have yet to resolve. The monthly reports will enable the 
Commission to identify any areas of significant disagreement between 
the winning bidder for the D Block license and the Public Safety 
Broadband Licensee. The Commission also reserves the right to require 
the parties to meet with Commission staff to discuss their negotiations 
or reports at any time during the negotiation process.
    136. If the Commission determines that parties are unlikely to 
reach an agreement or they violate certain obligations (e.g., good 
faith negotiation obligations), the Commission (or the Bureaus) may 
take, on its own motion, actions pertaining to dispute resolution 
before the NSA approval, described elsewhere in this Second Report and 
Order, without waiting for the six-month negotiation period to fully 
elapse.
    137. Resolution of Negotiation Disputes. Either upon notice of a 
dispute at the end of the six-month negotiation period, or on their own 
motion at any time, if the Chiefs of PSHSB and WTB determine that 
negotiations have reached a likely impasse, the Commission delegates 
authority to the Chiefs of PSHSB and WTB to take certain actions 
jointly in the public interest to adjudicate the dispute. As 
appropriate, these actions may include but are not limited to one or 
more of the following: (1) Granting additional time for negotiation; 
(2) issuing a decision on the disputed issues and requiring the 
submission of a draft agreement consistent with their decision; (3) 
directing the parties to further brief the remaining issues in full for 
immediate Commission decision; and/or (4) immediate denial of the long-
form application filed by the winning bidder for the D Block license. 
Remedies shall not, however, include ordering private third-party 
arbitration. In the event that the long-form application filed by the 
winning bidder for the D Block license is denied, the winning bidder 
for the D Block license will be deemed to have defaulted under Section 
1.2109(c) of the Commission's rules, it will be liable for the default 
payment set forth in Sec.  1.2104(g), and the full Commission, at its 
discretion, shall decide whether to offer a new license for the 
spectrum to existing or new applicants, offer a new license to the 
other highest bidders (in descending order) at their final bids, or 
choose any other process within the Commission's statutory authority to 
reassign the license, in light of the public interest goals served by 
the Public/Private Partnership.
    138. The Commission believes that it would be inappropriate to have 
issues regarding the use of public safety spectrum resolved by a 
private party and precludes that option as a remedy. The Commission 
finds, however, that

[[Page 48831]]

the Commission should not at this time preclude the option of disputes 
being adjudicated by the Commission. Rather, providing the Commission 
with discretion to choose from a range of remedies will enable the 
Commission to choose the most appropriate option in the context of the 
specific concerns raised by the parties.
    139. Licensing Rules and Procedures Applicable to the D Block 
license. Except as provided herein, the Commission's competitive 
bidding rules applicable to other commercial licenses in the 700 MHz 
Bands will apply to the winning bidder for the Public/Private 
Partnership License, including the practices and procedures listed in 
Part 1 of the Commission's rules. For example, the down payment 
requirement, the obligation of the winning bidder for the D Block 
license to file a ``long form'' license application, and the 
consequences of a default prior to grant of the license will be in 
accordance with Sections 1.2104, 1.2105, 1.2106, 1.2107, and 1.2109 of 
the Commission's rules.
    140. If the long form application is denied, the procedures under 
Section 1.2109 of the Commission's rules will generally apply. The 
Commission may complete review of the long form application and deny 
the application without regard to the NSA, if the application is 
deficient or the grant of the license would otherwise be inconsistent 
with the Commission's rules. The Commission further clarifies that if 
the winning bidder for the D Block license fails to comply with the 
procedures the Commission establishes for negotiation or dispute 
resolution, fails to receive final Commission approval of an NSA, or 
fails to execute an approved NSA, (a) it shall be disqualified from 
holding the D Block license, (b) the license application will be 
denied, and (c) it will be deemed to have defaulted and will be subject 
to all payments and obligations under Section 1.2109 of the 
Commission's rules.
    141. Process for Final Approval. The Commission will review and 
approve the NSA. To facilitate our review, the Commission may seek 
input from the parties, or invite public comment on the proposed NSA, 
subject to redactions to protect a legitimate need for confidentiality. 
After conducting its review, the Commission may approve the NSA in its 
entirety, approve it with modifications, or require the parties to 
address additional terms or re-draft existing terms within a specified 
timeframe. Following approval with or without modifications, the 
parties shall execute the NSA and submit a copy of the executed NSA to 
the Commission within 10 days of approval.
b. Ongoing Conditions for the Protection of Public Safety Service
    142. Requirements Relating to Organization and Structure of the 
Public/Private Partnership. To support continued construction and 
operation of the shared wireless broadband network by reducing the risk 
that the D Block license or the network assets will be drawn into a 
bankruptcy proceeding, the Commission requires the winning bidder for 
the D Block license to form separate special purpose entities, which 
will be bankruptcy remote, to hold the D Block license and the network 
assets, respectively. The Commission also requires the winning bidder 
of the D Block licensee to form another vehicle that will also be a 
bankruptcy remote, special purpose entity (Operating Company). The D 
Block licensee will lease the spectrum rights associated with the D 
Block license to the Operating Company pursuant to the Commission's 
spectrum leasing rules. The spectrum leasing arrangement will be for 
the entire term of the D Block license and will be renewable, provided 
that the Commission renews the underlying D Block license. These 
license transactions will occur following the granting of the D Block 
license and should follow existing Commission procedures applicable to 
such transactions. The Operating Company will also be leased secondary 
use rights associated with the primary license held by the Public 
Safety Broadband Licensee. To ensure that these requirements have been 
met, the D Block auction winner shall submit the proposed 
organizational structure to the Commission and demonstrate to the 
Commission's satisfaction that each of the constituent entities is 
appropriately bankruptcy remote. Finally, it shall be a condition of 
the D Block license and the Public Safety Broadband License that all 
special purpose entities and any leasing or other commercial agreements 
created to implement the public/private partnership will be subject to 
the Act and the Commission's rules and regulations, and the parties to 
the NSA shall acknowledge such regulatory authority in a form 
acceptable to the Commission.
    143. The D Block licensee and other entities authorized and 
required in this Second Report and Order or the NSA will have the 
obligation to build out the nationwide, shared interoperable broadband 
network operating on the spectrum associated with the D Block license 
and the Public Safety Broadband License.
    144. In connection with establishing the bankruptcy remote special 
purpose entities required hereunder, the Commission requires the 
issuance of one or more legal opinion letters, at the cost of the 
winning bidder of the D Block license, from bankruptcy counsel chosen 
by the winning bidder of the D Block license and acceptable to the 
Commission, and such other parties as the Commission may designate, 
that clearly states, subject only to customary assumptions, limitations 
and qualifications that none of the winning bidder, the Operating 
Company, or any party to the NSA or other related agreements will be 
substantively consolidated with any entity. The scope of this opinion 
letter shall also cover such other opinions as the Commission may 
request.
    145. Prohibition on Discontinuance of Public Safety Operations. The 
Commission prohibits the D Block licensee from discontinuing or 
degrading the broadband network service provided to the Public Safety 
Broadband Licensee or to public safety entities unless either at the 
request of the entity or entities in question or it has first obtained 
the approval of the Commission. Further, the D Block licensee must 
notify the affected public safety entity or entities and the Public 
Safety Broadband Licensee at least 30 days prior to any unrequested 
discontinuance or degradation of network service.
    146. Failure to Comply with the NSA or the Commission's Rules. The 
Commission establishes rules to address how the Commission will remedy 
failures by either the D Block licensee or the Public Safety Broadband 
Licensee to comply with the NSA or the Commission's rules. First, with 
regard to the D Block licensee, the Commission has conditioned the D 
Block license on compliance with the NSA. Failure to comply with the 
Commission's rules or the terms of the NSA may warrant cancelling the D 
Block license, depending on the circumstances, and awarding it to a new 
licensee. In particular, the full Commission will decide whether to 
cancel and reassign the D Block license in the event that the D Block 
licensee either cannot or will not fulfill the critical 
responsibilities that are being given to it.
    147. In the event that the Commission determines that the D Block 
license must be cancelled consistent with the Act and the requirements 
herein, an order shall be issued cancelling the license and announcing 
the process for awarding rights to the spectrum to a new licensee. 
However, pending the award to a new licensee, the Operating

[[Page 48832]]

Company will be issued a special temporary authority (STA) to continue 
to provide both commercial and public safety service in the Public/
Private Partnership spectrum.
    148. To further ensure that services to public safety are not 
threatened by cancellation, or otherwise, the NSA shall require, in a 
separate agreement, the granting of (a) an irrevocable and assignable 
right of first refusal if the network and network assets are otherwise 
to be sold; and (b) an irrevocable and assignable option in favor of 
the Public Safety Broadband Licensee to acquire the network and all 
network assets if and whenever the D Block license is cancelled or 
terminated, by reason of default or for any other reason, for a 
consideration equivalent to the fair market value (FMV) of the tangible 
and intangible assets sold. This option shall be senior to, and have 
priority over, any other right, claim, or interest in or to the network 
or the network assets. An event of default includes any default of the 
D Block licensee of a material obligation under the NSA, as determined 
by the Commission. Valuation will be performed pursuant to a FMV 
methodology to be agreed upon by the parties and set forth in the NSA. 
Valuation shall be performed immediately following the occurrence of a 
triggering event and completed within a reasonable time thereafter. The 
NSA must further provide that, in the event that the D Block license is 
awarded to a new entity, the Public Safety Broadband Licensee's right 
to purchase the network assets shall be reassigned to the new D Block 
licensee. Thereafter, the Public Safety Broadband Licensee's right to 
purchase shall be extinguished unless and until a new triggering event 
described above occurs, as the primary purpose of the right, to enable 
a smooth transition in the event of a default, would be achieved, and 
because maintaining the right might adversely impact the incentive of 
the new D Block licensee to invest in its network.
    149. The Commission provides that, in the event that the D Block 
license is cancelled, the Commission may choose any process within the 
Commission's statutory authority to reassign the license, in light of 
the public interest goals served by the Public/Private Partnership. 
Upon grant of a new license, the Commission, or the Bureaus acting on 
delegated authority, shall, in coordination with the former licensee 
and the new licensee, as well as the Public Safety Broadband Licensee, 
establishes the terms and timing under which the temporary 
authorization shall be cancelled and the new D Block licensee assume 
the construction and operation of the network. This decision shall take 
into account, among other factors, any exercise by the new licensee of 
its right to purchase the network assets.
    150. With regard to the Public Safety Broadband Licensee, in the 
event that the Public Safety Broadband Licensee fails to adhere to the 
terms of the NSA, or comply with the Commission's rules or any 
requirements contained in this Second Report and Order, to an extent 
giving rise to license cancellation, the Commission delegates authority 
to the Chiefs, PSHSB and WTB jointly to determine an appropriate 
remedy. The potential remedies include, but are not limited to, 
cancelling the license, assigning the license to another entity, 
directing the Public Safety Broadband Licensee to transfer the 
assignable option to purchase the assets at fair market value, ordering 
specific performance, or ordering removal and replacement of individual 
officers, directors or member organizations of the Public Safety 
Broadband Licensee.
    151. Resolution of Disputes after Grant of the D Block license. The 
Commission finds that the Commission should assume primary 
responsibility and jurisdiction for adjudicating intractable disputes 
that arise once the parties are operating pursuant to the terms of the 
NSA. While the Commission strongly encourages the parties to first 
attempt to resolve any disagreements themselves through voluntary 
means, the parties to the NSA may at any time bring a complaint based 
on a claim that the other party has deviated from the terms of the NSA, 
or a petition for a declaratory ruling to resolve the proper 
interpretation of an NSA term or provision. The Commission emphasizes 
that these shall be the exclusive remedies for claims seeking the 
interpretation of the NSA in the first instance. The Commission may, 
however, as an alternative to adjudicating the issues, require the 
parties to first seek a settlement to the dispute or authorize them to 
resolve the dispute through litigation or other means, particularly if 
the dispute is found to involve no significant public concerns, and the 
Commission will consider any request by the parties to authorize such 
means.
    152. In the event the Commission decides to adjudicate the issues, 
the Commission provides that the Commission will have full authority to 
interpret not only the Commission's rules but all of the provisions of 
the NSA. The Commission further provides that, if the Commission finds 
a material breach of the NSA, it may apply any remedy or enforcement 
mechanism within its authority. As with adjudication of disputes during 
the NSA negotiation process, the Chiefs of PSHSB and WTB are delegated 
joint responsibility for adjudicating any disputes that arise during 
performance of the NSA. Bureau level adjudications of NSA disputes must 
be completed within 45 days. The parties may seek review by the 
Commission of any bureau-level adjudication. Finally, the Commission 
establishes that, if a breach of the NSA occurs but is not brought to 
the Commission for resolution, the Commission retains authority to 
apply all appropriate remedies on its own initiative at any time after 
the breach occurs.
    153. Reporting Obligations. Once the NSA is approved by the 
Commission and executed by the parties, the parties must jointly file 
quarterly reports with the Commission. These reports must include 
detailed information on the areas where broadband service has been 
deployed, how the specific requirements of public safety are being met, 
audited financial statements, which public safety entities (e.g., 
police, fire departments) are using the broadband network in each area 
of operation; what types of applications (e.g., voice, data, video) are 
in use in each area of operation to the extent known; and the number of 
declared emergencies in each area of operation. The Commission 
anticipates that this information will be readily available from the 
billing systems used for the shared network, and reserve the right to 
specify additional information that the quarterly reports must include 
at a later date. The D Block licensee and Public Safety Broadband 
Licensee also have joint responsibility to register the base station 
locations with the Commission, providing basic technical information, 
including geographic location. Such registrations may be filed with a 
request for confidential treatment by the Commission. In this regard, 
the Commission delegates to the Wireless Bureau authority to adopt 
rules and procedures to implement this requirement, as well as 
authority to modify ULS to accept such filings and to issue a public 
notice describing any such modifications and relevant filing 
procedures. The Commission delegates to the Wireless Bureau the 
authority to adopt filing rules and procedures not inconsistent with 
this Second Report and Order to facilitate these reporting obligations.

[[Page 48833]]

4. Other Issues
a. Bidding Credits
    154. In order to encourage the widest range of potentially 
qualified applicants to participate in bidding for the D Block license, 
the Commission will provide eligible bidders for the D Block license 
with the existing 15 and 25 percent bidding credits, as the credits may 
be necessary to create incentives for investors to provide innovative 
small businesses with the capital necessary to compete for the D Block 
license at auction. Pursuant to the Commission's existing small 
business size standards, eligible bidders with average attributable 
gross revenues for the last three years not exceeding $15 million or 
$40 million, respectively, may be eligible for bidding credits of 25 
percent or 15 percent, respectively.
b. License Partitioning, Disaggregation, Assignment, and Transfer
    155. The Commission decides to prohibit geographic partitioning and 
spectrum disaggregation for the D Block licensee. The Public Safety 
Broadband Licensee is also prohibited from partitioning and 
disaggregation. The Commission recognizes that the Commission's 
existing Secondary Markets rules governing transfers and assignments 
would be applicable to the D Block licensee, providing further 
flexibility to the licensee. Thus, the D Block licensee would be 
permitted to assign or transfer its licensee subject to the Commission 
review and prior approval.
c. Commercial Service Issues
(i) Wholesale and Open Access Proposals
    156. The Commission declines to restrict the D Block licensee to 
operating exclusively on a ``wholesale'' or ``open access'' basis. 
Instead, the Commission provides the D Block licensee with flexibility 
to provide wholesale or retail services or other types of access to its 
network that comply with the Commission's rules and the NSA.
(ii) Roaming Proposal
    157. The Commission concludes that it should defer to the broader 
context of the pending roaming proceeding the determination of whether 
there are public interest benefits in also requiring automatic roaming 
to be provided by other commercial licensees. The Commission will 
therefore not at this time impose any special roaming requirements on 
the D Block licensee.
(iii) Applicability of CALEA, E911, and Other Requirements
    158. The Commission declines to categorically exempt services 
offered by the D Block licensee from E911, CALEA, and other regulatory 
requirements. Instead, the Commission clarifies that E911, CALEA, and 
other regulatory requirements will apply to services provided using 
Public/Private Partnership spectrum to the extent and only to the 
extent that these requirements apply to similar services provided 
elsewhere in the 700 MHz Band. The Commission has only recently 
concluded that the E911 requirements established in Section 20.18 of 
the Commission's rules will apply to all commercial mobile radio 
services, including such services throughout the 700 MHz Band, that 
meet the functional criteria in Section 20.18(a), and the Commission 
sees no reason to revisit that decision. The Commission defers any 
further examination of regulatory applicability to a more concrete and 
particular context, e.g., if service providers seek clarification 
regarding the applicability of a specific regulatory requirement to 
their specific service.
    159. The Commission also notes that, even though the D Block 
license for spectrum in the ``D Block'' band will be issued pursuant to 
Part 27 of the Commission's rules, the licensee will be required to 
comply with other rule parts, which are applicable to the other 
commercial 700 MHz bands, unless otherwise stated in this Second Report 
and Order. Some of these rule parts will be applicable by virtue of the 
fact that they apply to all licensees and others will apply depending 
on the type of services the D Block licensee provides.

II. Procedural Matters

A. Regulatory Flexibility Act

    160. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\6\ an Initial Regulatory Flexibility Analysis (IRFA) was 
included in the 700 MHz Further Notice \7\ in WT Docket No. 06-150, WT 
Docket No. 01-309; WT Docket No. 06-169, WT Docket No. 03-264, CC 
Docket No. 94-102, PS Docket No. 06-229, and WT Docket No. 96-86.\8\ 
The Commission sought written public comment on the proposals in these 
dockets, including comment on the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.\9\
---------------------------------------------------------------------------

    \6\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
    \7\ See Service Rules for the 698-746, 747-762 and 777-792 MHz 
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to 
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC 
Docket No. 94-102, Section 68.4(a) of the Commission's Rules 
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, 
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90 
to Streamline and Harmonize Various Rules Affecting Wireless Radio 
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 
700 MHz Guard Band Licenses and Revisions to Part 27 of the 
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band, 
PS Docket No. 06-229, Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, WT Docket 
No. 96-86, Report and Order and Further Notice of Proposed 
Rulemaking, 22 FCC Rcd 8064 (2007) (700 MHz Report and Order and 700 
MHz Further NPRM, respectively).
    \8\ See Service Rules for the 698-749746, 747-762 and 777-792 
MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules 
to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, 
CC Docket No. 94-102, and Section 68.4(a) of the Commission's Rules 
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, 
Notice of Proposed Rule Making, Fourth Further Notice of Proposed 
Rule Making, and Second Further Notice of Proposed Rule Making, 21 
FCC Rcd 9345, 9394 (2006) (``700 MHz Commercial Services Notice''); 
Former Nextel Communications, Inc. 01-309, Biennial Regulatory 
Review--Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and 
Harmonize Various Rules Affecting Wireless Radio Services, WT Docket 
03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band 
Licenses and Revisions to Part 27 of the Commission's Rules, 
Development of Operational, Technical and Spectrum Requirements for 
Meeting Federal, State and Local Public Safety Communications 
Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86, 
Notice of Proposed Rule Making, 21 FCC Rcd 10413, 10440 (2006) 
(``700 MHz Guard Bands Notice''); Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band, 
PS Docket No. 06-229, Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, WT Docket 
No. 96-86, Ninth Report and Order and Further Notice of Proposed 
Rule Making, 22 FCC Rcd 14837, 14853 (2006) (``8064 (2007) (700 MHz 
Public Safety Ninth Report and Order and 700 MHz Further NPRM'', 
respectively).
    \9\ See 5 U.S.C. 604.
---------------------------------------------------------------------------

    161. Although Section 213 of the Consolidated Appropriations Act of 
2000 provides that the RFA shall not apply to the rules and competitive 
bidding procedures for frequencies in the 746-806 MHz Band,\10\ the 
Commission believes that it would serve the public interest to analyze 
the possible significant economic impact of the proposed policy and 
rule changes in this band on small entities. Accordingly, this FRFA 
contains an analysis of this

[[Page 48834]]

impact in connection with all spectrum that falls within the scope of 
this Second Report and Order, including spectrum in the 746-806 MHz 
Band.
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    \10\ In particular, this exemption extends to the requirements 
imposed by Chapter 6 of Title 5, United States Code, Section 3 of 
the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of 
Title 44, United States Code. Consolidated Appropriations Act 2000, 
Pub. L. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-(B); 
see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note 
at Sec. 213(a)(4)(A)-(B).
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1. Need for, and Objectives of, the Rules
    162. In the Second Report and Order, the Commission takes a number 
of steps to facilitate access to spectrum and the provision of service 
to consumers, especially those in rural areas, and to simplify and 
clarify our rules related to the commercial 700 MHz spectrum. It 
designates a spectrum block in the upper portions of the commercial 
spectrum for a commercial licensee that will be part of a public/
private partnership (the ``700 MHz Public/Private Partnership'') with a 
national public safety broadband licensee for the public safety 
broadband spectrum (hereinafter, the Public Safety Broadband Licensee). 
The Commission reconfigures the 700 MHz Public Safety Band, to promote 
the development of nationwide interoperable broadband services for 
public safety users. The Commission also changes the location of the 
existing 700 MHz Guard Band licenses, provides for a one megahertz 
shift of the other commercial spectrum blocks in the Upper 700 MHz Band 
and the 700 MHz Public Safety Band, and reduces the size of the Guard 
Band B Block to make two additional megahertz of commercial spectrum 
available for auction.
    163. The band plan provides a balanced mix of geographic service 
area licenses and spectrum block sizes for the 62 megahertz of 
commercial spectrum to be auctioned. The Commission determined that it 
will auction two 12-megahertz spectrum blocks (comprised of paired 6-
megahertz blocks), one licensed by Cellular Market Areas (CMAs) and one 
by Economic Areas (EAs); one 22-megahertz spectrum block (paired 11-
megahertz blocks) by Regional Economic Area Groupings (REAGs); and one 
6-megahertz unpaired spectrum block by EAs. It also designates one 10-
megahertz spectrum block (paired 5-megahertz blocks), the Upper 700 MHz 
Band D Block, to be licensed on a nationwide basis and used as part of 
the 700 MHz Public/Private Partnership between this commercial licensee 
and the Public Safety Broadband Licensee that will be assigned the 
public safety broadband spectrum.
    164. In addition, the Commission replaces the current ``substantial 
service'' requirements for 700 MHz Band commercial licenses that have 
not been auctioned with significantly more stringent performance 
requirements, and makes unserved areas available to third parties who 
wish to provide service to these areas. By adopting these more rigorous 
requirements, the Commission ensures that the 700 MHz Commercial 
Services licensees put the spectrum to use throughout the course of 
their license terms and serve the majority of users in their license 
areas Additionally, for one commercial spectrum block in the 700 MHz 
Band--the Upper 700 MHz C Block (700 MHz C Block)--the Commission 
imposes requirements on those licensees to provide open platforms for 
devices and applications, and concludes that it would not serve the 
public interest at this time to mandate broader openness requirements.
    165. The Second Report and Order also revises the 700 MHz band plan 
with respect to the Upper 700 MHz Guard Bands, such that all existing A 
Block licenses relocate to a reconfigured A Block between the C and D 
Blocks, pursuant to an agreement between all but one of the Guard Bands 
licensees. As part of this agreement, the existing B Block licenses are 
relinquished, and the B Block is reconfigured from 4 to 2 megahertz and 
located immediately above the public safety narrowband spectrum. The 
reconfigured B Block serves as a guard band to protect the public 
safety narrowband channels, and remains empty as a commercial 
allocation at this time. With respect to the Guard Bands licensee that 
did not participate in the agreement, its one A Block license and two B 
Block licenses are grandfathered, with minor modifications to 
facilitate the overall revised band plan. In addition to these band 
plan issues with respect to the Guard Bands, the Second Report and 
Order also revises the service rules with respect to the reconfigured A 
Block, bringing it largely into parity with the adjacent Commercial 
Services spectrum given the new spectral location and its relationship 
to the rest of the band including the public safety spectrum.
    166. Further, the Second Report and Order seeks to achieve 
broadband communications capabilities consistent with a nationwide 
interoperability standard for public safety. The Commission expects 
that modern public safety services will increasingly depend on the 
advanced communications capabilities afforded by wireless broadband 
technologies, which should enable first responders to perform their 
vital safety-of-life and other critical roles. The Second Report and 
Order re-designates the wideband spectrum to broadband use consistent 
with a nationwide interoperability standard, and prohibits wideband 
operations on a going forward basis in the newly designated broadband 
spectrum. The Second Report and Order also consolidates the narrowband 
spectrum to the top of the Public Safety Band, locates the broadband 
spectrum at the bottom of the Public Safety Band, and divides these 
segments with an internal guard band. This reconfiguration reduces the 
amount of spectrum necessary to separate and protect the public safety 
broadband and narrowband allocations, and facilitates partnerships 
between public safety broadband operations and adjacent commercial 
broadband technologies, thereby optimizing the 700 MHz public safety 
band plan. Finally, in order to promote the rapid deployment of a 
nationwide, interoperable broadband public safety network, the Second 
Report and Order creates a single nationwide geographic area Public 
Safety Broadband License which will be administered by a single Public 
Safety Broadband Licensee.
    167. With regard to auctions-related issues, the Commission decides 
to utilize anonymous bidding to enhance the effectiveness of the 
auction of 700 MHz licenses, as well as allow package bidding for the 
Upper 700 MHz Band C Block, and decides not to grant a ``new entrant'' 
bidding credit for the 700 MHz Band licenses. The Commission also 
declines to impose eligibility restrictions for the licenses in the 700 
MHz Band. Finally, the Commission will offer bidding credits in the D 
Block, as described fully below.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    168. No comments specifically addressed the IRFAs from any of the 
respective proceedings. We have nonetheless addressed small entity 
issues found in comments in this FRFA.

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

    169. 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.\11\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \12\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern''

[[Page 48835]]

under the Small Business Act.\13\ A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).\14\
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    \11\ 5 U.S.C. 604(a)(3).
    \12\ 5 U.S.C. 601(6).
    \13\ 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.''
    \14\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    170. Small Businesses. Nationwide, there are a total of 
approximately 22.4 million small businesses, according to SBA data.\15\
---------------------------------------------------------------------------

    \15\ See SBA, Programs and Services, SBA Pamphlet No. CO-0028, 
at page 40 (July 2002).
---------------------------------------------------------------------------

    171. Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.\16\
---------------------------------------------------------------------------

    \16\ Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
---------------------------------------------------------------------------

    172. 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.'' \17\ As of 2002, there were approximately 
87,525 governmental jurisdictions in the United States.\18\ This number 
includes 38,967 county governments, municipalities, and townships, of 
which 37,373 (approximately 95.9%) have populations of fewer than 
50,000, and of which 1,594 have populations of 50,000 or more. Thus, we 
estimate the number of small governmental jurisdictions overall to be 
85,931 or fewer.
---------------------------------------------------------------------------

    \17\ 5 U.S.C. 601(5).
    \18\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2006, Section 8, pages 272-273, Tables 415 and 417.
---------------------------------------------------------------------------

    173. Wireless Service Providers. The SBA has developed a small 
business size standard for wireless firms within the two broad economic 
census categories of ``Paging'' \19\ and ``Cellular and Other Wireless 
Telecommunications.'' \20\ Under both categories, the SBA deems a 
wireless business to be small if it has 1,500 or fewer employees. For 
the census category of Paging, Census Bureau data for 2002 show that 
there were 807 firms in this category that operated for the entire 
year.\21\ Of this total, 804 firms had employment of 999 or fewer 
employees, and three firms had employment of 1,000 employees or 
more.\22\ Thus, under this category and associated small business size 
standard, the majority of firms can be considered small. For the census 
category of Cellular and Other Wireless Telecommunications, Census 
Bureau data for 2002 show that there were 1,397 firms in this category 
that operated for the entire year.\23\ Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more.\24\ Thus, under this second category and size 
standard, the majority of firms can, again, be considered small.
---------------------------------------------------------------------------

    \19\ 13 CFR 121.201, NAICS code 517211.
    \20\ 13 CFR 121.201, NAICS code 517212.
    \21\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
    \22\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
    \23\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \24\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
---------------------------------------------------------------------------

    174. When identifying small entities that could be affected by the 
Commission's new rules, this FRFA provides information describing 
auctions results, including the number of small entities that were 
winning bidders. However, the number of winning bidders that qualify as 
small businesses at the close of an auction does not necessarily 
reflect the total number of small entities currently in a particular 
service. The Commission does not generally require that licensees later 
provide business size information, except in the context of an 
assignment or transfer of control application where unjust enrichment 
issues are implicated.
    175. 700 MHz Guard Band Licenses. The Commission previously adopted 
size standards for ``small businesses'' and ``very small businesses'' 
for purposes of determining their eligibility for special provisions 
such as bidding credits and installment payments.\25\ A small business 
in this service is an entity that, together with its affiliates and 
controlling principals, has average gross revenues not exceeding $40 
million for the preceding three years.\26\ Additionally, a ``very small 
business'' is an entity that, together with its affiliates and 
controlling principals, has average gross revenues that are not more 
than $15 million for the preceding three years.\27\ SBA approval of 
these definitions is not required.\28\ An auction of 52 Major Economic 
Area (MEA) licenses commenced on September 6, 2000, and closed on 
September 21, 2000.\29\ Of the 104 licenses auctioned, 96 licenses were 
sold to nine bidders. Five of these bidders were small businesses that 
won a total of 26 licenses. A second auction of 700 MHz Guard Band 
licenses commenced on February 13, 2001, and closed on February 21, 
2001. All eight of the licenses auctioned were sold to three bidders. 
One of these bidders was a small business that won a total of two 
licenses.\30\
---------------------------------------------------------------------------

    \25\ See Service Rules for the 746-764 MHz Bands, and Revisions 
to Part 27 of the Commission's rules, Second Report and Order, 15 
FCC Rcd 5299 (2000).
    \26\ Id. at 5343 para. 108.
    \27\ Id.
    \28\ Id. at 5343 para. 108 n.246 (for the 746-764 MHz and 776-
704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which 
requires Federal agencies to obtain SBA approval before adopting 
small business size standards).
    \29\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders 
Announced,'' Public Notice, 15 FCC Rcd 18026 (2000).
    \30\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders 
Announced,'' Public Notice, 16 FCC Rcd 4590 (WTB 2001).
---------------------------------------------------------------------------

    176. Upper 700 MHz Band Licenses. The Commission released a Report 
and Order authorizing service in the Upper 700 MHz band.\31\ An auction 
for these licenses, previously scheduled for January 13, 2003, was 
postponed.\32\
---------------------------------------------------------------------------

    \31\ Service Rules for the 746-764 and 776-794 MHz Bands, and 
Revisions to Part 27 of the Commission's Rules, Second Memorandum 
Opinion and Order, 16 FCC Rcd 1239 (2001).
    \32\ See ``Auction of Licenses for 747-762 and 777-792 MHz Bands 
(Auction No. 31) Is Rescheduled,'' Public Notice, 16 FCC Rcd 13079 
(WTB 2003).
---------------------------------------------------------------------------

    177. Lower 700 MHz Band Licenses. The Commission adopted criteria 
for defining three groups of small businesses for purposes of 
determining their eligibility for special provisions such as bidding 
credits.\33\ The Commission has defined a small business as an entity 
that, together with its affiliates and controlling principals, has 
average gross revenues not exceeding $40 million for the preceding 
three years.\34\ A very small business is defined as an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $15 million for the preceding 
three years.\35\ Additionally, the Lower 700 MHz Band has a third 
category of small business status that may be claimed for Metropolitan/
Rural Service Area (MSA/RSA) licenses. The third category is 
entrepreneur, which is defined as an entity that, together with its 
affiliates and controlling principals, has average gross revenues that 
are not more than $3 million for the preceding

[[Page 48836]]

three years.\36\ The SBA has approved these small size standards.\37\ 
An auction of 740 licenses (one license in each of the 734 MSAs/RSAs 
and one license in each of the six Economic Area Groupings (EAGs)) 
commenced on August 27, 2002, and closed on September 18, 2002. Of the 
740 licenses available for auction, 484 licenses were sold to 102 
winning bidders. Seventy-two of the winning bidders claimed small 
business, very small business or entrepreneur status and won a total of 
329 licenses.\38\ A second auction commenced on May 28, 2003, and 
closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 
476 CMA licenses.\39\ Seventeen winning bidders claimed small or very 
small business status and won sixty licenses, and nine winning bidders 
claimed entrepreneur status and won 154 licenses.\40\
---------------------------------------------------------------------------

    \33\ See Reallocation and Service Rules for the 698-746 MHz 
Spectrum Band (Television Channels 52-59), Report and Order, 17 FCC 
Rcd 1022 (2002).
    \34\ Id. at 1087-88 para. 172.
    \35\ Id.
    \36\ Id. at 1088 para. 173.
    \37\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, SBA, dated August 10, 1999.
    \38\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice, 
17 FCC Rcd 17272 (WTB 2002).
    \39\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice, 
18 FCC Rcd 11873 (WTB 2003).
    \40\ Id.
---------------------------------------------------------------------------

    178. Public Safety Radio Licensees. As a general matter, public 
safety radio licensees include police, fire, local government, forestry 
conservation, highway maintenance, and emergency medical services.\41\ 
The SBA rules contain a small business size standard for cellular and 
other wireless telecommunications companies that encompasses business 
entities engaged in wireless communications employing no more than 
1,500 persons.\42\ According to Census Bureau data for 2002, in this 
category there were 8,863 firms that operated for the entire year.\43\ 
Of this total, 401 firms had 100 or more employees, and the remainder 
had fewer than 100 employees.\44\ 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.
---------------------------------------------------------------------------

    \41\ See subparts A and B of Part 90 of the Commission's Rules, 
47 CFR 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.
    \42\ See 13 CFR 121.201 (NAICS code 517212); U.S. Census Bureau, 
2002 Economic Census, Subject Series: Information, ``Employment Size 
of Establishments for the United States: 2002,'' Table 2, NAICS code 
517212.
    \43\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Employment Size of Establishments for the United 
States: 2002,'' Table 2, NAICS code 517212.
    \44\ Id.
---------------------------------------------------------------------------

    179. Wireless Communications Equipment Manufacturers: Radio and 
Television Broadcasting and Wireless Communications Equipment 
Manufacturing. While these entities are merely indirectly affected the 
Commission's actions, the Commission describes them to achieve a fuller 
record. The Census Bureau defines this category as follows: ``This 
industry comprises establishments primarily engaged in manufacturing 
radio and television broadcast and wireless communications equipment. 
Examples of products made by these establishments are: Transmitting and 
receiving antennas, cable television equipment, GPS equipment, pagers, 
cellular phones, mobile communications equipment, and radio and 
television studio and broadcasting equipment.'' \45\ The SBA has 
developed a small business size standard for Radio and Television 
Broadcasting and Wireless Communications Equipment Manufacturing, which 
is: All such firms having 750 or fewer employees.\46\ According to 
Census Bureau data for 2002, there were a total of 1,041 establishments 
in this category that operated for the entire year.\47\ Of this total, 
1,010 had employment of less than 500, and an additional 13 had 
employment of 500 to 999.\48\ Thus, under this size standard, the 
majority of firms can be considered small.
---------------------------------------------------------------------------

    \45\ U.S. Census Bureau, 2002 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing''; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
    \46\ 13 CFR 121.201, NAICS code 334220.
    \47\ U.S. Census Bureau, American FactFinder, 2002 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334220 (released May 26, 2005); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter take into account the concept of common ownership or control. 
Any single physical location for an entity is an establishment, even 
though that location may be owned by a different establishment. 
Thus, the numbers given may reflect inflated numbers of businesses 
in this category, including the numbers of small businesses. In this 
category, the Census breaks-out data for firms or companies only to 
give the total number of such entities for 2002, which was 929.
    \48\ Id. An additional 18 establishments had employment of 1,000 
or more.
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    180. Software Publishers. While these entities are merely 
indirectly affected by our action, we are describing them to achieve a 
fuller record. These companies may design, develop or publish software 
and may provide other support services to software purchasers, such as 
providing documentation or assisting in installation. The companies may 
also design software to meet the needs of specific users.\49\ The SBA 
has developed a small business size standard of $23 million or less in 
average annual receipts for the category of Software Publishers.\50\ 
For Software Publishers, Census Bureau data for 2002 indicate that 
there were 6,155 firms in the category that operated for the entire 
year.\51\ Of these, 7,633 had annual receipts of under $10 million, and 
an additional 403 firms had receipts of between $10 million and 
$24,999,999. For providers of Custom Computer Programming Services, the 
Census Bureau data indicate that there were 32,269 firms that operated 
for the entire year.\52\ Of these, 31,416 had annual receipts of under 
$10 million, and an additional 565 firms had receipts of between $10 
million and $24,999,999. Consequently, we estimate that the majority of 
the firms in this category are small entities that may be affected by 
our action.
---------------------------------------------------------------------------

    \49\ See U.S. Census Bureau, ``2002 NAICS Definitions: 511210 
Software Publishers''; http://www.census.gov/epcd/naics02/def/NDEF511.HTM.
    \50\ 13 CFR 121.201, NAICS code 511210.
    \51\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 511210 (issued Nov. 2005).
    \52\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Professional, Scientific, and Technical Services, ``Establishment 
and Firm Size (Including Legal Form of Organization),'' Table 4, 
NAICS code 541511 (issued Nov. 2005).
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    181. The projected reporting, recordkeeping, and other compliance 
requirements resulting from the Second Report and Order will apply to 
all entities in the same manner. The Commission believes that applying 
the same rules equally to all entities in this

[[Page 48837]]

context promotes fairness. The Commission does not believe that the 
costs and/or administrative burdens associated with the rules will 
unduly burden small entities. The revisions the Commission adopts 
should benefit small entities by giving them more information, more 
flexibility, and more options for gaining access to valuable wireless 
spectrum.
    182. Performance Requirements. In this Second Report and Order, the 
Commission replaces the current ``substantial service'' requirements 
for the 700 MHz Band commercial licenses that have not been auctioned 
with significantly more stringent performance requirements. These 
include the use of interim and end-of-term benchmarks, with geographic 
area benchmarks for licenses based on CMAs and EAs, and population 
benchmarks for licenses based on REAGs. Licensees must meet the interim 
requirement within four years of the end of the DTV transition. Failure 
to meet the interim requirement will result in a two-year reduction in 
license term, as well as possible enforcement action, including 
forfeitures. Licensees that fail to meet the end-of-term benchmarks 
will be subject to a ``keep-what-you-use'' rule, under which the 
licensee will lose its authorization for unserved portions of its 
license area, which will be automatically returned to the Commission 
for reassignment.
    183. Licensees must demonstrate compliance with the Commission's 
interim and end-of-term construction benchmarks by filing a 
construction notification with the Commission within 15 days of the 
passage of the relevant benchmark certifying that they have met our 
performance requirements. However, if they have not met the 
Commission's performance requirements, they must file a description and 
certification of the areas for which they are providing service. The 
information contained in the licensee's construction notification must 
include electronic coverage maps and other supporting documentation. 
The electronic coverage maps must clearly and accurately depict the 
boundaries of each EA or CMA in the licensee's service territory, and 
the areas where the licensee's signal strength is sufficient to provide 
service to users. In addition to filing electronic coverage maps, each 
licensee must file supporting documentation certifying the type of 
service it is providing for each EA or CMA within its license service 
territory.
    184. Guard Band Issues. The Second Report and Order relocates the A 
Block away from the public safety narrowband spectrum with respect to 
the upper half of the original paired A Block. Accordingly, the 
reconfigured A Block no longer serves as a guard band to protect the 
public safety spectrum from commercial operations. The existing 
frequency coordination requirement, which was created to protect public 
safety operations from Guard Bands operations, is therefore eliminated 
with respect to the reconfigured A Block.
    185. Open Platforms for Devices and Applications. In this Second 
Report and Order, the Commission adopts a requirement for the 700 MHz C 
Block licensees to provide open platforms for devices and applications. 
700 MHz C Block licensees must allow customers, device manufacturers, 
third-party application developers and others to use or develop the 
devices and applications of their choosing on the 700 MHz C Block 
network so long as they meet all applicable regulatory requirements and 
comply with reasonable conditions related to the management of the 
wireless network. The Commission does not, at this time, specify a 
particular process for wireless service providers to develop reasonable 
network management and openness standards, including through 
participation in standards setting organizations. The Commission 
expects licensees to publish their standards once adopted, which will 
be non-proprietary, such that they would be open to any third party 
vendors and that the standards applied to third parties will be no more 
restrictive than those applied to the provider's preferred vendors.
    186. The Commission also requires 700 MHz C Block licensees to 
provide to potential customers notice of the customers' rights to 
request the attachment of a device or application to the licensee's 
network, and notice of the licensee's process for customers to make 
such requests, including the relevant network criteria. In addition, 
700 MHz C Block licensees are required to establish a reasonable 
process for expeditiously reviewing and processing requests to employ 
devices and applications on the licensee's network and offer a specific 
explanation for denial of any such request, and an opportunity for 
amendment of the request to accommodate the provider's concerns.
    187. The Commission also provides for its existing complaint 
procedures to be invoked if a violation of this requirement occurs. 
Once a complainant sets forth a prima facie case that the 700 MHz C 
Block licensee has refused to attach a device or application in 
violation of the requirement or has otherwise violated the rule, the 
700 MHz C Block licensee shall have the burden of proof to demonstrate 
that it has adopted reasonable network standards and reasonably applied 
those standards in the complainant's case. The Commission commits to 
rule on these complaints within 180 days.
    188. Public Safety Broadband. The Second Report and Order re-
designates the wideband spectrum to broadband use consistent with a 
nationwide interoperability standard, and prohibits wideband operations 
on a going forward basis. The Commission will only grant limited 
exceptions to this rule through a waiver process. As a result of the 
decision to prohibit wideband operations outside of this waiver 
process, Regional Planning Committee plans already approved or on file 
with the Commission will require amendment. The Second Report and Order 
also consolidates the narrowband channels to the top of the public 
safety band, locates the broadband spectrum at the bottom of the public 
safety band, divides these segments with an internal guard band, and 
creates a single Public Safety Broadband License/Licensee to promote 
the rapid deployment of a nationwide, interoperable broadband public 
safety network. The relocation of public safety narrowband operations 
in the consolidated channels will entail some additional reporting, 
recordkeeping and compliance efforts by existing public safety entities 
with regard to the number and location of their affected narrowband 
handsets and base stations. The Second Report and Order does not 
otherwise propose any additional reporting, recordkeeping or other 
compliance requirements.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    189. The RFA requires an agency to describe in the IRFA any 
significant alternatives that it has considered in reaching its 
proposed approach, which may include (among others) the following four 
alternatives: (1) The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance or reporting 
requirements under the rule for small entities; (3) the use of 
performance, rather than design, standards; and (4) an exemption from 
coverage of the rule, or any part thereof, for small entities.\53\ The 
Commission hereby incorporates by reference the discussion in the 
Second Report and

[[Page 48838]]

Order of our consideration of the impact on small entities of the rules 
the Commission adopts here.
---------------------------------------------------------------------------

    \53\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    190. Band Plan Issues. The Second Report and Order revises the 700 
MHz band plan for the commercial services and public safety services in 
a manner that will improve the opportunity of small entities to obtain 
valuable wireless spectrum by providing smaller licensing areas that 
better meet the needs of small entities. The Commission's goals for the 
700 MHz Band are to promote dissemination of licenses among a wide 
variety of applicants, including small entities, accommodate the 
competing need for both large and small licensing areas, meet the 
various needs expressed by potential entrants seeking access to 
spectrum and incumbents seeking additional spectrum, and provide for 
large spectrum blocks that can facilitate broadband deployment in the 
band. To achieve these goals the revised plan provides for two 12-
megahertz spectrum blocks (comprised of paired 6-megahertz blocks), one 
licensed by CMAs and one by EAs; one 22-megahertz spectrum block 
(paired 11-megahertz blocks) by REAGs; and one 6-megahertz unpaired 
spectrum block by EAs. The revision also designates one 10-megahertz 
spectrum block (paired 5-megahertz blocks), the Upper 700 MHz D Block, 
to be licensed on a nationwide basis and used as part of the 700 MHz 
Public/Private Partnership.
    191. Providing for an additional 700 MHz Band spectrum block 
licensed on a CMA basis (the B Block) will increase the opportunity of 
small entities to obtain smaller license areas that meet their needs 
while avoiding the transaction costs associated with obtaining access 
to spectrum in the secondary market, costs that are incurred when these 
small providers must arrange the terms by which another licensee grants 
access to its spectrum by means of partitioning, disaggregation, or 
spectrum leasing.
    192. In addition, the Commission adopts EAs as the geographic 
service area for licenses in Block A of the Lower 700 MHz Band, making 
176 licenses available in this block. The Commission also adopts EAs 
for the unpaired 6-megahertz E block of the Lower 700 MHz Band which 
further enhances the mix of geographic sizes for licenses in the band. 
These decisions will also create opportunities for small entities to 
acquire licenses for small geographic service areas in the Lower 700 
MHz Band.
    193. Frequency Coordination and the Guard Bands. The service area 
definition for the Upper 700 MHz Guard Bands is the MEA, which is a 
smaller license area and therefore can provide greater opportunities 
for small entrants than larger service area definitions such as the 
REAG. Accordingly, among the licensed Guard Bands and the lessees 
currently using their spectrum, there may be a significant number of 
small entities. Additionally, continued operations in the Guard Bands A 
Block may continue to involve a significant number of small entities 
through Secondary Markets arrangements. Since the Second Report and 
Order removes the requirement for all A Block operations to be 
frequency coordinated with public safety entities, any small entity 
engaged in ownership of, or operations on, the A Block will find the 
frequency coordination burden lifted to their significant benefit.
    194. Performance Requirements. In this Second Report and Order, the 
Commission adopts stringent performance requirements for the 700 MHz 
Commercial Services licenses in order to promote the provision of 
innovative services to consumers throughout the license areas, 
including in rural areas. With regard to geographic-based benchmarks 
for licenses based on CMAs and EAs, the Commission seeks to promote 
service across as much of the geographic area of the country as is 
practicable. Parties that seek to acquire licenses based on CMAs and 
EAs may be small and rural providers that are less likely to provide 
regional or nationwide service, but they nonetheless play an important 
role in bringing new services to consumers in many of these more rural 
areas.
    195. The use of small license areas such as CMAs will create 
opportunities for small and rural businesses and will foster the 
deployment of competitive wireless broadband services in rural areas. 
Because the Commission adopts smaller geographic license areas such as 
CMAs to facilitate the provision of service, including broadband, in 
rural areas, it also adopts performance requirements that are designed 
to ensure that service is offered to consumers in these areas. Because 
of the 700 MHz band's excellent propagation characteristics and 
suitability for delivering advanced wireless services to rural areas, 
the Commission establishes benchmarks that require build-out to a 
significant portion of the geographic area in those markets. In 
addition, the performance requirements adopted here will discourage 
larger entities from purchasing spectrum for the purpose of warehousing 
it and thus may provide small entities with a greater chance of 
obtaining valuable spectrum.
    196. In the Second Report and Order, the Commission adopts 
population-based benchmarks for REAG licensees with large geographic 
areas in order to facilitate the deployment of advanced services on a 
nationwide or regional basis. Because of the significant capital 
investment and logistical challenges associated with building a 
regional or nationwide system without existing infrastructure, 
population benchmarks, rather than geographic benchmarks, will best 
allow a potential new entrant to achieve the economies of scale needed 
for a viable business model, while also ensuring that a majority of the 
population in a given region may have access to these services. 
Moreover, the performance requirements adopted here will discourage 
larger entities from purchasing spectrum for the purpose of warehousing 
it and thus may provide small entities with a greater chance of 
obtaining valuable spectrum.
    197. Additionally, the ``keep-what-you-use'' rule is pro-
competitive and provides another method for smaller license areas to be 
made available to small businesses, thus promoting access to spectrum 
and the provision of service, especially in rural areas. This rule 
ensures that spectrum covering areas that are not adequately built out 
is returned to the Commission and others are given an opportunity to 
acquire licenses for this spectrum. Because the license areas returned 
to the Commission under the ``keep-what-you-use'' rule are likely to be 
smaller in nature, this rule will provide small entities with an 
additional opportunity to obtain valuable wireless spectrum.
    198. Although the Commission recognizes that the performance and 
reporting requirements for the 700 MHz Commercial Services licenses 
places burdens on both large and small businesses alike, these 
requirements will further several important policy objectives including 
taking advantage of the excellent propagation characteristics of the 
spectrum in the 700 MHz Band enabling broader coverage at lower costs, 
promoting the provision of innovative services to consumers throughout 
the license areas, including rural areas, and allowing large license 
areas to be served at lower infrastructure costs. Moreover, the 
inclusion of interim benchmark reporting requirements ensures that 
licensees provide service to consumers as early as possible. Because of 
the importance of these requirements, we do not believe that they 
should be applied on a differential basis to large and small business. 
Neither do we believe that such requirements will impose an 
unacceptable burden on small entities.

[[Page 48839]]

    199. License Terms. The Second Report and Order extends the license 
terms of all the existing A Block licensees, given the changed 
circumstances of the band plan and service rules, as the licensees are 
relocated to the reconfigured A Block. This license term extension will 
benefit any Guard Bands licensees, and any lessees currently using 
their spectrum, that may be small entities as they will have more 
flexibility in the use of their spectrum with a longer period of time 
within which to make use of the spectrum.
    200. Partitioning and Disaggregation. In this Second Report and 
Order, the Commission concludes that Section 27.15(d) of its rules 
regarding partitioning and disaggregation should be amended to clarify 
how the performance obligations will apply to the partitioning and 
disaggregation of the 700 MHz Commercial Services licenses that remain 
to be auctioned. These modifications seek to continue to provide 
flexibility to licensees and third parties to enter into partitioning 
and disaggregation arrangements that will facilitate the provision of 
new services to consumers, including consumers in unserved and 
underserved areas.
    201. Under the modifications of the Section 27.15(d) rule relating 
to geographic partitioning of new 700 MHz Commercial Services licenses, 
the Commission establishes two options for partitioners and 
partitionees with regard to the newly adopted performance requirements. 
Under the first option, the partitioner and partitionee must each 
certify to the Commission that they will share responsibility for 
meeting the performance requirements for the entire geographic license 
area. If the parties meet the end-of-term construction benchmarks, they 
will retain the ability to continue to build out the unserved portion 
of their license areas. Parties that fail to meet the end-of-term 
benchmarks will be subject to a ``keep-what-you-use'' rule, under which 
they will lose their authorization for unserved portions of their 
license areas, which will automatically cancel and return to the 
Commission for reassignment. This option enables parties to share the 
cost of meeting the stricter build-out benchmarks as required by the 
Commission under its new performance requirements, while ensuring that 
build-out will occur over the original license area to the same extent 
as it would have occurred had the licensee never partitioned the 
license. Under the second option, the partitioner and partitionee must 
each certify that it will independently meet the applicable performance 
requirements for its respective partitioned service area. If the 
partitioner or partitionee fails to meet the four-year build-out 
requirement for its respective area, then its license term will be 
reduced by two years. If the parties meet the end-of-term construction 
benchmarks, they will retain the ability to continue to build out the 
unserved portion of their license areas. Parties that fail to meet the 
end-of-term benchmarks will be subject to an automatic ``keep-what-you-
use'' rule, under which they will lose their authorization for unserved 
portions of their license areas, which will automatically cancel and 
return to the Commission for reassignment. This option provides a way 
for partitioners and partitionees to ensure that their licenses will 
not be affected by the other party's conduct with regard to meeting the 
applicable performance requirements.
    202. Under the modifications of the Section 27.15(d) rule relating 
to disaggregation of new 700 MHz Commercial Services band licenses, the 
Commission provides that the disaggregator, disaggregate, or both the 
disaggregator and disaggregate working together, can meet the four-year 
and end-of-term construction benchmarks for the entire geographic 
license area. If either party meets the performance requirement, then 
the requirement will be satisfied for both parties. If neither party 
meets the four-year build-out requirement, then each of their license 
terms will be reduced by two years. If either of the parties meets the 
end-of-term build-out requirement, then this requirement is considered 
to be satisfied for both parties. Those parties that meet the end-of-
term construction benchmarks will retain the ability to continue to 
build out the unserved portion of their license areas. Parties that 
fail to meet the end-of-term benchmarks will be subject to an automatic 
``keep-what-you-use'' rule, under which they will lose their 
authorization for unserved portions of their license areas, which will 
automatically cancel and return to the Commission for reassignment.
    203. Partitioning and disaggregation allow smaller or newly-formed 
entities to enter the market for the first time, because they will be 
able to negotiate for portions of original licenses at costs that are 
proportionately less than the entire license. Moreover, these 
modifications provide the opportunity for small businesses to enter 
into partitioning and disaggregation agreements that would enable them 
to share the cost of meeting the more stringent performance 
requirements for the unauctioned commercial 700 MHz Band spectrum.
    204. Open Platforms for Devices and Applications. In order to 
promote innovation in the 700 MHz Band from the outset, the Commission 
is imposing certain conditions on the 700 MHz C Block to provide open 
platforms for devices and applications. The C Block--a large 22-
megahertz block (comprised of paired 11-megahertz blocks)--is of 
sufficient size and scope to provide an environment conducive for the 
development and deployment of 4G services designed to compete with 
other broadband alternatives, and to provide an opportunity for 
innovators and entrepreneurs to develop equipment and applications that 
require substantial bandwidth to realize their full potential. The 
requirements should also provide sufficient potential market 
penetration to attract investment and achieve economies of scale in the 
equipment marketplace. In addition, we believe that the open platform 
requirement for devices and applications will provide additional 
opportunities for small entities to participate in the device and 
application market, since such a requirement will make it easier for 
customers, device manufacturers, third-party application developers, 
and others to use or develop devices and applications made by small 
entities on the network of the C Block licensee.
    205. In adopting this requirement for the 700 MHz C Block, the 
Commission has taken a targeted, focused approach to achieve benefits 
to consumers. In particular, the Commission declines to impose 
additional openness requirements on the 700 MHz C Block, including 
wholesale and interconnection requirements. In addition, the Commission 
declines at this time to impose the requirement to provide open 
platforms for devices and applications or other openness obligations 
broadly in the 700 MHz Band, or in other spectrum bands.
    206. Licensee Eligibility. The Commission declines to impose 
eligibility restrictions for the licenses in the 700 MHz band. The 
record does not demonstrate that open eligibility is likely to result 
in substantial competitive harm in the provision of broadband services. 
There are numerous actual and potential broadband service providers, 
and currently, consumers can obtain broadband service from wireline 
providers, cable companies, satellite, and wireless providers. Given 
this number of providers, it is unlikely that incumbent local exchange 
carriers, cable providers, or large wireless carriers would be able to 
behave in an anticompetitive manner as a result of

[[Page 48840]]

any potential acquisition of 700 MHz spectrum. Furthermore, there are 
potential competitive benefits to not imposing eligibility 
requirements. First, allowing incumbents to hold 700 MHz band licenses 
will provide opportunities for these carriers to extend service into 
rural and hard-to-serve areas, which is a major goal the Commission 
seeks to achieve. Also, an incumbent service provider may already be a 
rural provider and to limit their eligibility would be contrary to the 
Commission's goals. We also do not believe that imposing eligibility 
restrictions for licenses in the 700 MHz band is necessary to provide 
small entities with the opportunity to obtain such licenses. As 
discussed above, among other things, the smaller licensing areas made 
available here will increase opportunities for small entities.
    207. Anonymous Bidding. In response to its request for comments on 
whether to use anonymous bidding (or ``limited information'') 
procedures in the auction of the new 700 MHz band licenses, the 
Commission received comments both in support of and in opposition to 
such procedures. One of the supporters is a small licensee who argued 
that anonymous bidding would bring about a more level playing field 
between large and small bidders.\54\ The Commission further concludes 
that the many uncertainties regarding the technologies that will be 
used in the 700 MHz band will result in the potential anti-competitive 
use of detailed information regarding bidding outweighing the benefit 
to some bidders of having such information.
---------------------------------------------------------------------------

    \54\ See McBride 700 MHz Further NPRM Comments at 11.
---------------------------------------------------------------------------

    208. The Commission further concludes that anonymous bidding should 
be employed even if the pre-auction eligibility ratio indicates that 
competition in the auction will be significant. Even in an auction with 
many competitors individual bidders could still use retaliatory bidding 
unilaterally to block the market, and it is important to avoid that 
from occurring especially given that the 700 MHz auction is going to 
offer multiple, substitutable blocks of licenses for sale, with prices 
relatively high, and the outcome having possible significant effects on 
post-auction market structure.
    209. The Commission does not believe that anonymous bidding will 
have a detrimental effect on small entities. First, as discussed in 
Section III.A.3.a of the Second Report and Order, the potential benefit 
to bidders, such as small entities, of knowing the identity of other 
parties placing bids for particular licenses appears likely to be less 
in this auction than in past Commission auctions, in light of the early 
stage of development with respect to new services in these frequencies. 
Second, because bidding information can be used by incumbents to deter 
or exclude new entrants, we believe that anonymous bidding will 
increase the opportunities for new entrants, including small entities, 
to obtain licenses.
    210. Package Bidding. Commenters are divided on the issue of 
package bidding for the upcoming auction of the 700 MHz band spectrum. 
While some commenters support package bidding because they feel it is 
essential for a new entrant seeking to aggregate licenses and offer 
service nationwide,\55\ there are other commenters who feel that 
package bidding will disadvantage bidders not bidding on packages, 
which are more likely to be small entities.\56\
---------------------------------------------------------------------------

    \55\ See, e.g., Google 700 MHz Further NPRM Comments at 7-8.
    \56\ See Aloha 700 MHz Further Notice Comments at 7-8; Blooston 
700 MHz Further Notice Comments at 10; Cellular South 700 MHz 
Further Notice Comments at 16; Leap 700 MHz Further Notice Comments 
at 9; MetroPCS 700 MHz Further Notice Comments at 22; RCA 700 MHz 
Further Notice Comments at 18; RTG 700 MHz Further Notice Comments 
at 16.
---------------------------------------------------------------------------

    211. The Commission concludes that package bidding, with respect to 
the Upper 700 MHz Band C Block, would serve the public interest by 
reducing the exposure problem that might otherwise inhibit bidders 
seeking to create a nationwide footprint. Absent package bidding, the 
exposure problem creates an opportunity for competitors to block a 
would-be package bidder without actually competing for all the licenses 
in the package.\57\
---------------------------------------------------------------------------

    \57\ Frontline 700 MHz Further Notice Comments, Exhibit 1 at 22-
23.
---------------------------------------------------------------------------

    212. Minimizing the exposure problem, by implementing package 
bidding, should facilitate the entry of applicants whose business plans 
require the economies of scale that only can be obtained with 
nationwide operation. The Commission further concludes that package 
bidding solely with respect to licenses for the Upper 700 MHz Band C 
Block provides sufficient opportunities to bid with minimal risk of an 
exposure problem. However, we limit package bidding to the C Block so 
that bidders, including small entities, who are unwilling or unable to 
compete against package bids will not be deterred from participating in 
the auction. The variety of blocks and licenses that are not subjected 
to package bidding will provide any such bidders, including small 
entities, with a wide array of opportunities.
    213. ``New Entrant'' Bidding Credit. The possibility of granting 
``new entrant'' bidding credits attracted far less comment than other 
issues relating to the auction of the 700 MHz licenses, and those 
parties that did respond were divided on the issue. The Commission 
concludes that a ``new entrant'' bidding credit for the 700 MHz Band 
licenses is not needed to facilitate the entry of new service 
providers. The Commission already offers substantial bidding credits to 
small entities, many of which may be new entrants in the spectrum 
services market, and we therefore do not believe that there is a need 
for an additional ``new entrant'' bidding credit. In addition, the 
availability of multiple licenses in each and every market with varied 
geographic sizes, coupled with the large number of licenses should 
offer new ventures, including small entities, a variety of 
opportunities to provide service.
    214. Bidding Credits for the 700 MHz Public/Private Partnership. A 
number of small entities have proposed, in their comments, that the 
Commission should offer designated entities bidding credits with 
regards to the license that has been proposed by Frontline.\58\ In 
brief, these commenters maintain that bidding credits will help 
potential applicants overcome efforts by incumbents to prevent others 
from winning newly available licenses.
---------------------------------------------------------------------------

    \58\ See, e.g., McBride Spectrum Partners, LLC 700 MHz Further 
Notice Comments at 4-8; Blooston Rural Carriers 700 MHz Further NPRM 
Comments at 7; Council Tree Communications, Inc. 700 MHz Further 
Notice Reply Comments at 5-7.
---------------------------------------------------------------------------

    215. The Commission concludes that it should provide applicants 
that are eligible to be licensed as designated entities with bidding 
credits in the auction of the D Block license, consistent with the 
Commission's prior decision regarding bidding credits for 700 MHz band 
licenses and our current designated entities rules. This decision will 
improve the opportunity for small entities to successfully bid for the 
D Block license.
    216. Public Safety Broadband. The Second Report and Order 
reallocates the wideband spectrum to broadband use consistent with a 
nationwide interoperability standard, and prohibits wideband operations 
within the newly designated broadband spectrum on a going forward 
basis. The public safety community expressed broad support for a 
broadband allocation to enable advanced communications capabilities. 
The availability of a contiguous block of broadband spectrum, subject 
to a nationwide interoperability standard, enables partnerships with 
commercial licensees in adjacent broadband

[[Page 48841]]

spectrum. As a result, the band plan ultimately enables public safety 
entities to utilize the 700 MHz band spectrum in a more cost-effective 
and spectrally efficient manner to address their homeland security and 
emergency response roles. In particular, the Commission believes that 
the interoperable broadband network will be of benefit to smaller 
governmental entities that would otherwise be unlikely to have the 
resources to construct such a network. Because the Commission does not 
anticipate that this reallocation will impose additional economic 
burdens on public safety, and is in fact designed to reduce economic 
burdens on public safety, the Commission has taken steps to minimize 
any adverse impact of the rule changes.
    217. The Second Report and Order also consolidates the narrowband 
spectrum to the top of the public safety band and locates the broadband 
spectrum at the bottom of the public safety band, in light of the 
potentially significant benefits such reconfiguration will afford the 
public safety community. The alternative would have been to retain the 
existing band plan. The Further NPRM sought comment on how to implement 
reconfiguration of the narrowband channels with minimum disruption to 
incumbent operations. The Second Report and Order accommodates public 
safety operations in the border areas with Canada and Mexico, and 
defrays the costs of relocation by providing that such costs will be 
covered by the D Block Licensee. This defrayal of costs should be of 
particular benefit to small governmental entities, which are less 
likely to have the resources to fund such a relocation on their own. 
The Commission expects that the number of entities impacted and the 
expected reconfiguration cost should be relatively minor. In order to 
receive reimbursement for the transition costs, however, affected 
public safety entities are required to provide information regarding 
the narrowband radios and base stations that they have deployed. We do 
not believe that such a reporting requirement will place an 
unacceptable burden on small governmental entities.
6. Report to Congress
    218. The Commission will send a copy of the Second Report and 
Order, including this FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act.\59\ In addition, the Commission will send a copy of the Second 
Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Second Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.\60\
---------------------------------------------------------------------------

    \59\ See 5 U.S.C. 801(a)(1)(A).
    \60\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

B. Paperwork Reduction Act of 1995

    219. The Second Report and Order contains new or modified 
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 new information collection requirements 
contained in this proceeding. Comments should address the following: 
(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 respondents, 
including the use of automated collection techniques or other forms of 
information technology. In addition, the Commission notes that pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), the Commission previously sought specific 
comment on how the Commission might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.'' In this present document, the Commission has assessed the 
potential effects of the various policy changes with regard to 
information collection burdens on small business concerns, and finds 
that there are no results specific to businesses with fewer than 25 
employees. In addition, the Commission has described impacts that might 
affect small businesses, which includes most businesses with fewer than 
25 employees, in the FRFA in Appendix C, infra. The Commission notes, 
however, that Section 213 of the Consolidated Appropriations Act 2000 
provides that rules governing frequencies in the 36 megahertz of the 
spectrum in the 746-806 MHz Band allocated for commercial use become 
effective immediately upon publication in the Federal Register without 
regard to certain sections of the Paperwork Reduction Act. The 
Commission is therefore not inviting comment on any information 
collections that concern those frequencies. The Commission also notes 
that it is seeking emergency processing under the Paperwork Reduction 
Act for the information collection requiring 700 MHz Band public safety 
licensees, whether holding individual narrowband authorizations or 
operating pursuant to a State License, to provide the total number of 
narrowband mobile and portable handsets and narrowband base stations in 
operation in channels 63 and 68, and the upper 1 megahertz of channels 
64 and 69, as of August 30, 2007, along with the related information 
specified herein. Public and agency comments related to this request 
are due August 31, 2007.

III. Ordering Clauses

    220. Accordingly, it is ordered that pursuant to Sections 1, 4(i), 
5, 7, 10, 201, 202, 208, 214, 215, 222(d)(4)(A)-(C), 222(f), 222(g), 
222(h)(1)(A), 222(h)(4)-(5), 229, 251(e)(3), 301, 303, 307, 308, 309, 
310, 311, 312, 316, 324, 331, 332, 333, 336, 337, 403, 503, and 610, of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 155, 
157, 160, 201, 202, 208, 214, 215, 222(d)(4)(A)-(C), 222(f), 222(g), 
222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 229, 301, 303, 307, 308, 309, 
310, 311, 312, 316, 324, 331, 332, 333, 336, 337, 403, 503, and 610, 
and Section 102 of the Communications Assistance for Law Enforcement 
Act, 18 U.S.C. 1001, this Second Report and Order in WT Docket No. 06-
150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, 
WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86 is 
adopted, and that Part 2, 27, and 90 of the Commission's rules, 47 CFR 
Parts 2, 27, and 90, are amended as set forth in Appendix B. This 
Second Report and Order shall become effective October 23, 2007, except 
for the amendments to Sec. Sec.  27.14, 27.15, 27.50, and 90.176 which 
contain information collection requirements that have not been approved 
by the Office of Management and Budget (OMB). The Commission will 
publish a document in the Federal Register announcing the effective 
date.
    221. It is further ordered that, pursuant to Section 5(c) of the 
Communications Act of 1934, as amended, 47 U.S.C. 5(c), the Wireless 
Telecommunications Bureau and Public Safety and Homeland Security 
Bureau are granted delegated authority to implement the policies set 
forth in this Second Report and Order and the rules, as revised, set 
forth in Appendix B hereto.

[[Page 48842]]

    222. It is ordered that, pursuant to Sections 4(i), 309, and 316(a) 
of the Communications Act, as amended, 47 U.S.C. 154(i), 309, 316(a), 
the 700 MHz Guard Band A Block licenses of Access 700, LLC, Pegasus 
Guard Band, LLC, and Dominion 700, Inc. are modified, as specified in 
Appendix D, upon the effective date of this Second Report and Order.
    223. It is ordered that, pursuant to Sections 4(i), 309, and 316(a) 
of the Communications Act, as amended, 47 U.S.C. 154(i), 309, 316(a), 
Access 700 Holdings, LLC, Pegasus Guard Band, LLC, and Radiofone 
Nationwide PCS, LLC shall surrender their 700 MHz Guard Band B Block 
licenses to the Commission no later than 5 days from the effective date 
of this Second Report and Order.
    224. It is ordered that, pursuant to Sections 4(i), and 309(f) of 
the Communications Act, as amended, 47 U.S.C. 154(i), 309(f), Access 
700, LLC is granted special temporary authority for a period of 180 
days, upon the effective date of this Second Report and Order, for 
frequencies 746.000-747.000 and 776.000-777.000 MHz in Major Economic 
Areas 20, 26, 32, 37, 44, and 52. The Wireless Telecommunications 
Bureau is delegated authority to issue such authorizations and to 
resolve any request for an extension of such authorizations as 
specified in this Second Report and Order.
    225. It is ordered that, pursuant to Sections 4(i), 309, and 316(a) 
of the Communications Act, as amended, 47 U.S.C. 154(i), 309, 316(a) 
and Section 1.87 of the Commission's rules, 47 CFR 1.87, the 700 MHz 
Guard Band A Block license for Station WPRV447, licensed to PTPMS II 
Communications, L.L.C., will be modified by changing the authorized 
frequencies from 746.000-747.000 and 776.000-777.000 MHz, to 757.000-
758.000 and 787.000-788.000 MHz.
    226. It is ordered that, pursuant to Sections 4(i), 309, and 316(a) 
of the Communications Act, as amended, 47 U.S.C. 154(i), 309, 316(a) 
and Section 1.87 of the Commission's rules, 47 CFR 1.87, the 700 MHz 
Guard Band B Block licenses for Stations WPRV448 and WPRV449, licensed 
to PTPMS II Communications, L.L.C., will be modified by changing the 
authorized frequencies from 762.000-764.000 and 792.000-794.000 MHz, to 
761.000-763.000 and 791.000-793.000 MHz.
    227. It is ordered that, pursuant to Sections 309 and 316 of the 
Communications Act of 1934, as amended, 47 U.S.C. 309, 316, the 
modifications of Stations WPRV447, WPRV448, and WPRV449, licensed to 
PTPMS II Communications, L.L.C., specified in paragraphs 167 and 168, 
supra, shall become final and effective 30 days from the effective date 
of this Second Report and Order if no protests are filed within that 
period. The Wireless Telecommunications Bureau is delegated authority 
to resolve any such protests that may arise and to modify such licenses 
as specified in this Second Report and Order.
    228. It is ordered, pursuant to Sections 1 and 4(i) of the 
Communications Act, as amended, 47 U.S.C. 151, 154(i), that by October 
23, 2007, all 700 MHz Band public safety licensees, whether holding 
individual narrowband authorizations or operating pursuant to a State 
License, shall provide the total number of narrowband mobile and 
portable handsets and narrowband base stations in operation in channels 
63 and 68, and the upper 1 megahertz of channels 64 and 69, as of 
August 30, 2007, along with the related information specified herein.
    229. It is further ordered that the Wireless Telecommunications 
Bureau shall send a copy of this Second Report and Order, by certified 
mail, return receipt requested, to Alfred Angelo, President, PTPMS II 
Communications, L.L.C., 340 North Avenue East, Cranford, New Jersey 
07016, and James H. Barker, Esq., 1001 Pennsylvania Avenue, NW., Suite 
1300, Washington, DC 20004-2505.
    230. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    231. It is further ordered that the Commission shall send a copy of 
this Second Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects

47 CFR Part 0

    Organization and functions (Government agencies), Privacy, 
Reporting and recordkeeping requirements.

47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Penalties, Radio, Reporting and recordkeeping requirements, 
Satellites, Telecommunications, Television.

47 CFR Part 2

    Communications equipment, Disaster assistance, Radio, Reporting and 
recordkeeping requirements, Telecommunications, Television.

47 CFR Part 27

    Communications common carriers, Radio, Wireless radio services.

47 CFR Part 90

    Civil defense, Common carriers, Emergency medical services, Radio, 
Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 0, 1, 2, 27 and 90 as follows:

PART 0--COMMISSION ORGANIZATION

0
1. The authority citation for part 0 continues to read as follows:

    Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.


0
2. Section 0.181 is amended by adding paragraph (k) to read as follows:


Sec.  0.181  The Defense Commissioner.

* * * * *
    (k) To decide, in response to a request by the Public Safety 
Broadband Licensee whether circumstances warrant emergency priority 
access by first responder public safety entities to the Upper 700 MHz D 
Block license spectrum.

PART 1--PRACTICE AND PROCEDURE

0
3. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 303(r), and 309.


0
4. Section 1.946 is amended by revising paragraph (c) to read as 
follows:


Sec.  1.946   Construction and coverage requirements.

* * * * *
    (c) Termination of authorizations. If a licensee fails to commence 
service or operations by the expiration of its construction period or 
to meet its coverage or substantial service obligations by the 
expiration of its coverage period, its authorization terminates 
automatically (in whole or in part as set forth in the service rules),

[[Page 48843]]

without specific Commission action, on the date the construction or 
coverage period expires.
* * * * *

0
5. Section 1.955 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  1.955   Terminations of authorizations.

    (a) * * *
    (2) Failure to meet construction or coverage requirements. 
Authorizations automatically terminate (in whole or in part as set 
forth in the service rules), without specific Commission action, if the 
licensee fails to meet applicable construction or coverage 
requirements. See Sec.  1.946(c).
* * * * *

0
6. Section 1.2105 is amended by revising paragraph (c)(6) to read as 
follows:


Sec.  1.2105   Bidding application and certification procedures; 
prohibition of collusion.

* * * * *
    (c) * * *
    (6) Any applicant that makes or receives a communication of bids or 
bidding strategies prohibited under paragraph (c)(1) of this section 
shall report such communication in writing to the Commission 
immediately, and in no case later than five business days after the 
communication occurs. An applicant's obligation to make such a report 
continues until the report has been made. Such reports shall be filed 
with the Office of the Secretary, and a copy shall be sent to the Chief 
of the Auctions and Spectrum Access Division, Wireless 
Telecommunications Bureau.

0
7. Section 1.9005 is amended by revising paragraph (k) to read as 
follows:


Sec.  1.9005   Included services.

* * * * *
    (k) The Wireless Communications Service in the 746-763 MHz, 775-793 
MHz, and 805-806 MHz bands (part 27 of this chapter);

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

0
8. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.

0
9. Section 2.103 is amended by revising paragraphs (a) introductory 
text and (b) introductory text and adding paragraph (c) to read as 
follows:


Sec.  2.103   Federal use of non-Federal frequencies.

    (a) Federal stations may be authorized to use non-Federal 
frequencies in the bands above 25 MHz (except the 763-775 MHz and 793-
805 MHz public safety bands) if the Commission finds that such use is 
necessary for coordination of Federal and non-Federal activities: 
Provided, however, that:
* * * * *
    (b) Federal stations may be authorized to use channels in the 769-
775 MHz, 799-805 MHz and 4940-4990 MHz public safety bands with non-
Federal entities if the Commission finds such use necessary; where:
* * * * *
    (c) Federal stations may be authorized to use channels in the 763-
768 MHz and 793-798 MHz public safety bands with non-Federal entities 
where:
    (1) The Federal entity obtains the prior approval of the Public 
Safety Broadband Licensee (and such approval granted by the Public 
Safety Broadband Licensee is consistent with the terms and conditions 
of the Network Sharing Agreement under 90.1406 of this chapter); and
    (2) Federal operation is in accordance with the Commission's rules 
governing operation of this band and conforms to any conditions agreed 
upon by the Commission and NTIA.

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
10. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337 unless otherwise noted.

0
11. Section 27.1 is amended by revising paragraph (b)(2) to read as 
follows:
* * * * *


Sec.  27.1   Basis and purpose.

    (b) * * *
    (2) 746-763 MHz, 775-793 MHz, and 805-806 MHz.

0
12. Section 27.2 is amended by revising paragraph (b) to read as 
follows:


Sec.  27.2   Permissible communications.

* * * * *
    (b) 775-776 MHz and 805-806 MHz bands. Operators in the 775-776 MHz 
and 805-806 MHz bands may not employ a cellular system architecture. A 
cellular system architecture is defined, for purposes of this part, as 
one that consists of many small areas or cells (segmented from a larger 
geographic service area), each of which uses its own base station, to 
enable frequencies to be reused at relatively short distances.
* * * * *

0
13. Section 27.4 is amended by adding the following definitions in 
alphabetical order to read as follows:


Sec.  27.4   Terms and definitions.

    700 MHz Public/Private Partnership. The public/private partnership 
established for the development and operation of a nationwide, shared 
interoperable wireless broadband network operating on the 758-763 MHz 
and 788-793 MHz bands and the 763-768 MHz and 793-798 MHz bands in 
accordance with the Commission's rules.
* * * * *
    Network Assets Holder. The Network Assets Holder is a Special 
Purpose Bankruptcy Remote Entity that is formed to hold the assets of 
the shared wireless broadband network associated with the 700 MHz 
Public/Private Partnership, in accordance with the terms of the Network 
Sharing Agreement, such other agreements as the Commission may require 
or allow, and the Commission's rules.
    Network Sharing Agreement (NSA). An agreement entered into between 
the winning bidder, the Upper 700 MHz D Block licensee, the Network 
Assets Holder, the Operating Company, the Public Safety Broadband 
Licensee, and any other related entities that the Commission may 
require or allow regarding the shared wireless broadband network 
associated with the 700 MHz Public/Private Partnership that will 
operate on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz 
and 793-798 MHz bands.
    Operating Company. The Operating Company is a Special Purpose 
Bankruptcy Remote Entity that is formed to build and operate the shared 
wireless broadband network associated with the 700 MHz Public/Private 
Partnership, in accordance with the terms of the Network Sharing 
Agreement, such other agreements as the Commission may require or 
allow, and the Commission's rules.
* * * * *
    Public Safety Broadband License. The Public Safety Broadband 
License authorizes public safety broadband services in the 763-768 MHz 
and 793-798 MHz bands.
    Public Safety Broadband Licensee. The licensee of the Public Safety 
Broadband License in the 763-768 MHz and 793-798 MHz bands.
* * * * *
    Shared Wireless Broadband Network. Wireless broadband network 
associated

[[Page 48844]]

with the 700 MHz Band Public/Private Partnership that operates on the 
758-763 MHz and 788-793 MHz bands and the 763-768 MHz and 793-798 MHz 
bands pursuant to the terms of the Network Sharing Agreement, such 
other agreements as the Commission may require or allow, and the 
Commission's rules.
    Special Purpose Bankruptcy Remote Entity. A ``special purpose 
entity'' is a legal entity created for a special limited purpose, in 
this context primarily to hold the Upper 700 MHz D Block license or the 
network assets, or to conduct the construction or operation of the 
shared wireless broadband network associated with the 700 MHz Public/
Private Partnership. A special purpose entity is ``bankruptcy remote'' 
if that entity is unlikely to become insolvent as a result of its own 
activities, is adequately insulated from the consequences of a related 
party's insolvency, and contains certain characteristics which enhance 
the likelihood that it will not become the subject of an insolvency 
proceeding.
* * * * *
    Upper 700 MHz D Block license. The Upper 700 MHz D Block license is 
the nationwide license associated with the 758-763 MHz and 788-793 MHz 
bands.
    Upper 700 MHz D Block licensee. The Special Purpose Bankruptcy 
Remote Entity to which the Upper 700 MHz D Block license must be 
transferred upon execution of the Network Sharing Agreement. References 
herein to the rights and obligations of the Upper 700 MHz D Block 
licensee include the exercise or discharge of such rights or 
obligations, respectively, by related entities as are provided for in 
the NSA or otherwise as authorized by the Commission.
* * * * *

0
14. Section 27.5 is amended by revising paragraph (b) to read as 
follows:


Sec.  27.5   Frequencies.

* * * * *
    (b) 746-763 MHz, 775-793 MHz, and 805-806 MHz bands. The following 
frequencies are available for licensing pursuant to this part in the 
746-763 MHz, 775-793 MHz, and 805-806 MHz bands:
    (1) Two paired channels of 1 megahertz each are available for 
assignment in Block A in the 757-758 MHz and 787-788 MHz bands.
    (2) Two paired channels of 1 megahertz each are available for 
assignment in Block B in the 775-776 MHz and 805-806 MHz bands.
    (3) Two paired channels of 11 megahertz each are available for 
assignment in Block C in the 746-757 MHz and 776-787 MHz bands. In the 
event that no licenses for two channels in this Block C are assigned 
based on the results of the first auction in which such licenses were 
offered because the auction results do not satisfy the applicable 
reserve price, the spectrum in the 746-757 MHz and 776-787 MHz bands 
will instead be made available for assignment at a subsequent auction 
as follows:
    (i) Two paired channels of 6 megahertz each available for 
assignment in Block C1 in the 746-752 MHz and 776-782 MHz bands.
    (ii) Two paired channels of 5 megahertz each available for 
assignment in Block C2 in the 752-757 MHz and 782-787 MHz bands.
    (4) Two paired channels of 5 megahertz each are available for 
assignment in Block D in the 758-763 MHz and 788-793 MHz bands.
* * * * *

0
15. Section 27.6 is amended by revising paragraphs (a) introductory 
text, (b), (c), and (e) to read as follows:


Sec.  27.6  Service Areas.

    (a) WCS service areas include Economic Areas (EAs), Major Economic 
Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular 
markets comprising Metropolitan Statistical Areas (MSAs) and Rural 
Service Areas (RSAs), and a nationwide area. MEAs and REAGs are defined 
in the Table immediately following paragraph (a)(1) of this section. 
Both MEAs and REAGs are based on the U.S. Department of Commerce's EAs. 
See 60 FR 13114 (March 10, 1995). In addition, the Commission shall 
separately license Guam and the Northern Mariana Islands, Puerto Rico 
and the United States Virgin Islands, American Samoa, and the Gulf of 
Mexico, which have been assigned Commission-created EA numbers 173-176, 
respectively. The nationwide area is composed of the contiguous 48 
states, Alaska, Hawaii, the Gulf of Mexico, and the U.S. territories. 
Maps of the EAs, MEAs, MSAs, RSAs, and REAGs and the Federal Register 
Notice that established the 172 EAs are available for public inspection 
and copying at the Reference Information Center, Consumer and 
Governmental Affairs Bureau, Federal Communications Commission, 445 
12th Street, SW., Washington, DC 20554.
* * * * *
    (b) 746-763 MHz, 775-793 MHz, and 805-806 MHz bands. WCS service 
areas for the 746-763 MHz, 775-793 MHz, and 805-806 MHz bands are as 
follows.
    (1) Service areas for Block A in the 757-758 MHz and 787-788 MHz 
bands and Block B in the 775-776 MHz and 805-806 MHz bands are based on 
Major Economic Areas (MEAs), as defined in paragraphs (a)(1) and (a)(2) 
of this section.
    (2) Service areas for Block C in the 746-757 MHz and 776-787 MHz 
bands are based on Regional Economic Area Groupings (REAGs) as defined 
by paragraph (a) of this section. In the event that no licenses with 
respect to service areas for Block C in the 746-757 MHz and 776-787 MHz 
bands are assigned based on the results of the first auction in which 
such licenses are offered because the auction results do not satisfy 
the applicable reserve price, then service areas for the spectrum at 
746-757 MHz and 776-787 MHz will instead be available for assignment as 
follows:
    (i) Service areas for Block C1 in the 746-752 MHz and 776-782 MHz 
bands are based on Economic Areas (EAs) as defined in paragraph (a) of 
this section.
    (ii) Service areas for Block C2 in the 752-757 MHz and 782-787 MHz 
bands are based on Regional Economic Area Groupings (REAGs) as defined 
by paragraph (a) of this section.
    (3) Service area for Block D in the 758-763 MHz and 788-793 MHz 
bands is a nationwide area as defined in paragraph (a)(1) of this 
section.
    (c) 698-746 MHz band. WCS service areas for the 698-746 MHz band 
are as follows.
    (1) Service areas for Block A in the 698-704 MHz and 728-734 MHz 
bands and Block E in the 722-728 MHz band are based on Economic Areas 
(EAs) as defined in paragraph (a) of this section.
    (2) Service areas for Block B in the 704-710 MHz and 734-740 MHz 
bands and Block C in the 710-716 MHz and 740-746 MHz bands are based on 
cellular markets comprising Metropolitan Statistical Areas (MSAs) and 
Rural Service Areas (RSAs) as defined by Public Notice Report No. CL-
92-40 ``Common Carrier Public Mobile Services Information, Cellular 
MSA/RSA Markets and Counties,'' dated January 24, 1992, DA 92-109, 7 
FCC Rcd 742 (1992), with the following modifications:
    (i) The service areas of cellular markets that border the U.S. 
coastline of the Gulf of Mexico extend 12 nautical miles from the U.S. 
Gulf coastline.
    (ii) The service area of cellular market 306 that comprises the 
water area of the Gulf of Mexico extends from 12 nautical miles off the 
U.S. Gulf coast outward into the Gulf.
    (3) Service areas for Block D in the 716-722 MHz band are based on

[[Page 48845]]

Economic Area Groupings (EAGs) as defined by the Federal Communications 
Commission. See 62 FR 15978 (April 3, 1997) extended with the Gulf of 
Mexico. See also paragraphs (a)(1) and (a)(2) of this section and 62 FR 
9636 (March 3, 1997), in which the Commission created an additional 
four economic area-like areas for a total of 176. Maps of the EAGs and 
the Federal Register notice that established the 172 Economic Areas 
(EAs) are available for public inspection and copying at the Reference 
Center, Room CY A-257, 445 12th St., SW., Washington, DC 20554. These 
maps and data are also available on the FCC Web site at http://www.fcc.gov/oet/info/maps/areas/.
    (i) There are 6 EAGs, which are composed of multiple EAs as defined 
in the table below:

------------------------------------------------------------------------
    Economic area groupings            Name            Economic areas
------------------------------------------------------------------------
EAG001........................  Northeast........  1-11, 54.
EAG002........................  Mid-Atlantic.....  12-26, 41, 42, 44-53,
                                                    70.
EAG003........................  Southeast........  27-40, 43, 69, 71-86,
                                                    88-90, 95, 96, 174,
                                                    176 (part).
EAG004........................  Great Lakes......  55-68, 97, 100-109.
EAG005........................  Central/Mountain.  87, 91-94, 98, 99,
                                                    110-146, 148, 149,
                                                    152, 154-159, 176
                                                    (part).
EAG006........................  Pacific..........  147, 150, 151, 153,
                                                    160-173, 175.
------------------------------------------------------------------------


    Note 1 to paragraph (c)(3)(i): Economic Area Groupings are 
defined by the Federal Communications Commission; see 62 FR 15978 
(April 3, 1997) extended with the Gulf of Mexico.


    Note 2 to paragraph (c)(3)(i): Economic Areas are defined by the 
Regional Economic Analysis Division, Bureau of Economic Analysis, 
U.S. Department of Commerce February 1995 and extended by the 
Federal Communications Commission, see 62 FR 9636 (March 3, 1997).


    (ii) For purposes of paragraph (c)(3)(i) of this section, EA 176 
(the Gulf of Mexico) will be divided between EAG003 (the Southeast EAG) 
and EAG005 (the Central/Mountain EAG) in accordance with the 
configuration of the Eastern/Central and Western Planning Area 
established by the Mineral Management Services Bureau of the Department 
of the Interior (MMS). That portion of EA 176 contained in the Eastern 
and Central Planning Areas as defined by MMS will be included in 
EAG003; that portion of EA 176 contained in the Western Planning Area 
as defined by MMS will be included in EAG005. Maps of these areas may 
be found on the MMS Web site: http://www.gomr.mms.gov/homepg/offshore/offshore.html.
* * * * *
    (e) The paired 1392-1395 and 1432-1435 MHz bands. Service areas for 
the paired 1392-1395 and 1432-1435 MHz bands are as follows. Service 
areas for Block A in the 1392-1393.5 MHz and 1432-1433.5 MHz bands and 
Block B in the 1393.5-1395 MHz and 1433.5-1435 MHz bands are based on 
Economic Area Groupings (EAGs) as defined in paragraph (c)(3) of this 
section.
* * * * *

0
16. Section 27.11 is amended by revising paragraphs (c) and (d) to read 
as follows:


Sec.  27.11   Initial authorization.

* * * * *
    (c) 746-763 MHz, 775-793 MHz, and 805-806 MHz bands. Initial 
authorizations for the 746-763 MHz, 775-793 MHz, and 805-806 MHz bands 
shall be for paired channels of 1, 5, 6, or 11 megahertz of spectrum in 
accordance with Sec.  27.5(b).
    (1) Authorizations for Block A, consisting of two paired channels 
of 1 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(b)(1).
    (2) Authorizations for Block B, consisting of two paired channels 
of 1 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(b)(1).
    (3) Authorizations for Block C, consisting of two paired channels 
of 11 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(b)(2). In the event that no licenses granting 
authorizations for Block C, consisting of two paired channels of 11 
megahertz each, are assigned based on the results of the first auction 
in which such licenses are offered because the auction results do not 
satisfy the applicable reserve price, then the authorizations for the 
spectrum in the 746-757 MHz and 776-787 MHz bands will instead be as 
follows:
    (i) Authorizations for Block C1, consisting of two paired channels 
of 6 megahertz each in the 746-752 MHz and 776-782 MHz bands, will be 
based on those geographic areas specified in Sec.  27.6(b)(2)(i).
    (ii) Authorizations for Block C2, consisting of two paired channels 
of 5 megahertz each in the 752-757 MHz and 782-787 MHz bands, will be 
based on those geographic areas specified in Sec.  27.6(b)(2)(ii).
    (4) The authorization for Block D, consisting of two paired 
channels of 5 megahertz each, will be based on the geographic area 
specified in Sec.  27.6(b)(3).
    (d) 698-746 MHz band. Initial authorizations for the 698-746 MHz 
band shall be for 6 or 12 megahertz of spectrum in accordance with 
Sec.  27.5(c).
    (1) Authorizations for Block A, consisting of two paired channels 
of 6 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(c)(1).
    (2) Authorizations for Block B, consisting of two paired channels 
of 6 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(c)(2).
    (3) Authorizations for Block C, consisting of two paired channels 
of 6 megahertz each, will be based on those geographic areas specified 
in Sec.  27.6(c)(2).
    (4) Authorizations for Block D, consisting of an unpaired channel 
block of 6 megahertz, will be based on those geographic areas specified 
in Sec.  27.6(c)(3).
    (5) Authorizations for Block E, consisting of an unpaired channel 
block of 6 megahertz, will be based on those geographic areas specified 
in Sec.  27.6(c)(1).
* * * * *

0
17. Section 27.13 is amended by revising the paragraph heading and the 
first and second sentence in paragraph (b) to read as follows:


Sec.  27.13  License period.

* * * * *
    (b) 698-763 MHz and 776-793 MHz bands. Initial authorizations for 
the 698-763 MHz and 776-793 MHz bands will extend for a term not to 
exceed ten years from February 17, 2009, except that initial 
authorizations for a part 27 licensee that provides broadcast services, 
whether exclusively or in combination with other services, will not 
exceed eight years. Initial authorizations for the 775-776 MHz and 805-
806 MHz bands shall not exceed January 1, 2015. * * *
* * * * *

[[Page 48846]]

Sec.  27.14  [Amended]

0
18. Amend Sec.  27.14 as follows:
0
a. Revise paragraph (a).
0
b. Remove paragraph (f).
0
c. Redesignate paragraph (e) as paragraph (f).
0
d. Add new paragraphs (e), (g), (h), (i), (j), (k), (l), (m), and (n).


Sec.  27.14  Construction requirements; criteria for renewal.

    (a) AWS and WCS licensees, with the exception of WCS licensees 
holding authorizations for Block A in the 698-704 MHz and 728-734 MHz 
bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 
722-728 MHz band, Block C in the 746-757 MHz and 776-787 MHz, and Block 
D in the 758-763 MHz and 788-793 MHz bands must, as a performance 
requirement, make a showing of ``substantial service'' in their license 
area within the prescribed license term set forth in Sec.  27.13. 
``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.
* * * * *
    (e) Comparative renewal proceedings do not apply to WCS licensees 
holding authorizations for the 698-757 MHz, 758-763 MHz, 776-787 MHz, 
and 788-793 MHz bands. These licensees must file a renewal application 
in accordance with the provisions set forth in Sec.  1.949 of this 
chapter, and must make a showing of substantial service, independent of 
its performance requirements, as a condition for renewal at the end of 
each license term.
* * * * *
    (g) WCS licensees holding EA authorizations for Block A in the 698-
704 MHz and 728-734 MHz bands, cellular market authorizations for Block 
B in the 704-710 MHz and 734-740 MHz bands, and EA authorizations for 
Block E in the 722-728 MHz band, if the results of the first auction in 
which licenses for such authorizations are offered satisfy the reserve 
price for the applicable block, shall provide signal coverage and offer 
service over at least 35 percent of the geographic area of each of 
their license authorizations no later than February 17, 2013 (or within 
four years of initial license grant if the initial authorization in a 
market is granted after February 17, 2009), and shall provide such 
service over at least 70 percent of the geographic area of each of 
these authorizations by the end of the license term. In applying these 
geographic benchmarks, licensees are not required to include land owned 
or administered by government as a part of the relevant service area. 
Licensees may count covered government land for purposes of meeting 
their geographic construction benchmark, but are required to add the 
covered government land to the total geographic area used for 
measurement purposes. Licensees are required to include those populated 
lands held by tribal governments and those held by the Federal 
Government in trust or for the benefit of a recognized tribe.
    (1) If an EA or CMA licensee holding an authorization in these 
particular blocks fails to provide signal coverage and offer service 
over at least 35 percent of the geographic area of its license 
authorization by no later than February 17, 2013 (or within four years 
of initial license grant, if the initial authorization in a market is 
granted after February 17, 2009), the term of that license 
authorization will be reduced by two years and such licensee may be 
subject to enforcement action, including forfeitures. In addition, such 
an EA or CMA licensee may lose authority to operate in part of the 
remaining unserved areas of the license.
    (2) If any such EA or CMA licensee fails to provide signal coverage 
and offer service to at least 70 percent of the geographic area of its 
license authorization by the end of the license term, that licensee's 
authorization will terminate automatically without Commission action 
for those geographic portions of its license in which the licensee is 
not providing service, and those unserved areas will become available 
for reassignment by the Commission. Such licensee may also be subject 
to enforcement action, including forfeitures. In addition, an EA or CMA 
licensee that provides signal coverage and offers service at a level 
that is below the end-of-term benchmark may be subject to license 
termination. In the event that a licensee's authority to operate in a 
license area terminates automatically without Commission action, such 
areas will become available for reassignment pursuant to the procedures 
in paragraph (j) of this section.
    (3) For licenses under paragraphs (g), (h), and (i), of this 
section, the geographic service area to be made available to new 
entrants must include a contiguous area of at least 130 square 
kilometers (50 square miles), and areas smaller than a contiguous area 
of at least 130 square kilometers (50 square miles) will not be deemed 
unserved.
    (h) WCS licensees holding authorizations for Block C in the 746-757 
MHz and 776-787 MHz bands shall provide signal coverage and offer 
service over at least 40 percent of the population in each EA 
comprising the REAG license area no later than February 17, 2013 (or 
within four years of initial license grant, if the initial 
authorization in a market is granted after February 17, 2009), and 
shall provide such service over at least 75 percent of the population 
of each of these EAs by the end of the license term. For purposes of 
compliance with this requirement, licensees should determine population 
based on the most recently available U.S. Census Data.
    (1) If a licensee holding a Block C authorization fails to provide 
signal coverage and offer service over at least 40 percent of the 
population in each EA comprising the REAG license area by no later than 
February 17, 2013 (or within four years of initial license grant if the 
initial authorization in a market is granted after February 17, 2009), 
the term of the license authorization will be reduced by two years and 
such licensee may be subject to enforcement action, including 
forfeitures. In addition, a licensee that provides signal coverage and 
offers service at a level that is below the interim benchmark may lose 
authority to operate in part of the remaining unserved areas of the 
license.
    (2) If a licensee holding a Block C authorization fails to provide 
signal coverage and offer service over at least 75 percent of the 
population in any EA comprising the REAG license area by the end of the 
license term, for each such EA that licensee's authorization will 
terminate automatically without Commission action for those geographic 
portions of its license in which the licensee is not providing service. 
Such licensee may also be subject to enforcement action, including 
forfeitures. In the event that a licensee's authority to operate in a 
license area terminates automatically without Commission action, such 
areas will become available for reassignment pursuant to the procedures 
in paragraph (j) of this section. In addition, a REAG licensee that 
provides signal coverage and offers service at a level that is below 
the end-of-term benchmark within any EA may be subject to license 
termination within that EA.
    (i) WCS licensees holding EA authorizations for Block A in the 698-
704 MHz and 728-734 MHz bands, cellular market authorizations for Block 
B in the 704-710 MHz and 734-740 MHz bands, and EA authorizations for 
Block E in the 722-728 MHz band, if the results of the first auction in 
which licenses for such authorizations in Blocks A, B, and E are 
offered do not

[[Page 48847]]

satisfy the reserve price for the applicable block, as well as EA 
authorizations for Block C1 in the 746-752 MHz and 776-782 MHz bands 
and REAG authorizations for Block C2 in the 752-757 MHz and 782-787 MHz 
bands, are subject to the following:
    (1) If a licensee holding a cellular market area or EA 
authorization subject to this paragraph (i) fails to provide signal 
coverage and offer service over at least 40 percent of the population 
in its license area by no later than February 17, 2013 (or within four 
years of initial license grant, if the initial authorization in a 
market is granted after February 17, 2009), the term of that license 
authorization will be reduced by two years and such licensee may be 
subject to enforcement action, including forfeitures. In addition, such 
licensee that provides signal coverage and offers service at a level 
that is below the interim benchmark may lose authority to operate in 
part of the remaining unserved areas of the license. For purposes of 
compliance with this requirement, licensees should determine population 
based on the most recently available U.S. Census Data.
    (2) If a licensee holding a cellular market area or EA 
authorization subject to this paragraph (i) fails to provide signal 
coverage and offer service over at least 75 percent of the population 
in its license area by the end of the license term, that licensee's 
authorization will terminate automatically without Commission action 
for those geographic portions of its license in which the licensee is 
not providing service, and those unserved areas will become available 
for reassignment by the Commission. Such licensee may also be subject 
to enforcement action, including forfeitures. In the event that a 
licensee's authority to operate in a license area terminates 
automatically without Commission action, such areas will become 
available for reassignment pursuant to the procedures in paragraph (j) 
of this section. In addition, such a licensee that provides signal 
coverage and offers service at a level that is below the end-of-term 
benchmark may be subject to license termination. For purposes of 
compliance with this requirement, licensees should determine population 
based on the most recently available U.S. Census Data.
    (3) Licensee's holding an authorization in Block C2 will be subject 
to the requirements in paragraph (h) of this section.
    (j) In the event that a licensee's authority to operate in a 
license area terminates automatically under paragraphs (g), (h), or (i) 
of this section, such areas will become available for reassignment 
pursuant to the following procedures:
    (1) The Wireless Telecommunications Bureau is delegated authority 
to announce by public notice that these license areas will be made 
available and establish a 30-day window during which third parties may 
file license applications to serve these areas. During this 30-day 
period, licensees that had their authority to operate terminate 
automatically for unserved areas may not file applications to provide 
service to these areas. Applications filed by third parties that 
propose areas overlapping with other applications will be deemed 
mutually exclusive, and will be resolved through an auction. The 
Wireless Telecommunications Bureau, by public notice, may specify a 
limited period before the filing of short-form applications (FCC Form 
175) during which applicants may enter into a settlement to resolve 
their mutual exclusivity, subject to the provisions of Sec.  1.935 of 
this chapter.
    (2) Following this 30-day period, the original licensee and third 
parties can file license applications for remaining unserved areas 
where licenses have not been issued or for which there are no pending 
applications. If the original licensee or a third party files an 
application, that application will be placed on public notice for 30 
days. If no mutually exclusive application is filed, the application 
will be granted, provided that a grant is found to be in the public 
interest. If a mutually exclusive application is filed, it will be 
resolved through an auction. The Wireless Telecommunications Bureau, by 
public notice, may specify a limited period before the filing of short-
form applications (FCC Form 175) during which applicants may enter into 
a settlement to resolve their mutual exclusivity, subject to the 
provisions of Sec.  1.935 of this chapter.
    (3) The licensee will have one year from the date the new license 
is issued to complete its construction and provide signal coverage and 
offer service over 100 percent of the geographic area of the new 
license area. If the licensee fails to meet this construction 
requirement, its license will automatically terminate without 
Commission action and it will not be eligible to apply to provide 
service to this area at any future date.
    (k) WCS licensees with authorizations in the spectrum blocks 
enumerated in paragraphs (g), (h), or (i), of this section, including 
any licensee that obtained its license pursuant to the procedures set 
forth in paragraph (j) of this section, shall demonstrate compliance 
with performance requirements by filing a construction notification 
with the Commission, within 15 days of the expiration of the relevant 
benchmark, in accordance with the provisions set forth in Sec.  
1.946(d) of this chapter. The licensee must certify whether it has met 
the relevant performance requirement. All licensees must file a 
description and certification of the areas for which they are providing 
service. The construction notifications must include electronic 
coverage maps, supporting technical documentation and any other 
information as the Wireless Telecommunications Bureau may prescribe by 
public notice.
    (l) WCS licensees with authorizations in the spectrum blocks 
enumerated in paragraphs (g), (h), or (i), of this section, excluding 
any licensee that obtained its license pursuant to the procedures set 
forth in paragraph (j), of this section, shall file interim reports 
with the Commission that provide the Commission, at a minimum, with 
information concerning the status of their efforts to meet the 
performance requirements applicable to their authorizations in such 
spectrum blocks and the manner in which that spectrum is being 
utilized. The information to be reported will include the date the 
license term commenced, a description of the steps the licensee has 
taken toward meeting its construction obligations in a timely manner, 
including the technology or technologies and service(s) being provided, 
and the areas within their license areas in which those services are 
available. These licensees shall file their first interim report with 
the Commission no later than February 17, 2011 and no sooner than 30 
days prior to this date. Licensees that meet their interim benchmarks 
shall file a second interim report with the Commission no later than 
February 17, 2016 and no sooner than 30 days prior to this date. 
Licensees that do not meet their interim benchmarks shall file their 
second interim report no later than on February 17, 2015 and no sooner 
than 30 days prior to this date.
    (m) The WCS licensee holding the authorization for the D Block at 
758-763 MHz and 788-793 MHz (the Upper 700 MHz D Block licensee) shall 
comply with the following construction requirements.
    (1) The Upper 700 MHz D Block licensee shall provide a signal 
coverage and offer service over at least 75 percent of the population 
of the nationwide Upper 700 MHz D Block license area within four years 
from February 17, 2009, 95 percent of the population of the nationwide 
license area within seven years, and 99.3 percent of the

[[Page 48848]]

population of the nationwide license area within ten years.
    (2) The Upper 700 MHz D Block licensee may modify, to a limited 
degree, its population-based construction benchmarks with the agreement 
of the Public Safety Broadband Licensee and the prior approval of the 
Commission, where such a modification would better serve to meet 
commercial and public safety needs.
    (3) The Upper 700 MHz D Block licensee shall meet the population 
benchmarks based on a performance schedule specified in the Network 
Sharing Agreement, taking into account performance pursuant to Sec.  
27.1327 as appropriate under that rule, and using the most recently 
available U.S. Census Data. The network and signal levels employed to 
meet these benchmarks must be adequate for public safety use, as 
defined in the Network Sharing Agreement, and the services made 
available must include those appropriate for public safety entities 
that operate in those areas. The schedule shall include coverage for 
major highways and interstates, as well as such additional areas that 
are necessary to provide coverage for all incorporated communities with 
a population in excess of 3,000, unless the Public Safety Broadband 
Licensee and the Upper 700 MHz D Block licensee jointly determine, in 
consultation with a relevant community, that such additional coverage 
will not provide significant public benefit.
    (4) The Upper 700 MHz D Block licensee shall demonstrate compliance 
with performance requirements by filing a construction notification 
with the Commission within 15 days of the expiration of the relevant 
benchmark, in accordance with the provisions set forth in Sec.  
1.946(d) of this chapter. The licensee must certify whether it has met 
the relevant performance requirement and must file a description and 
certification of the areas for which it is providing service. The 
construction notifications must include the following:
    (i) Certifications of the areas that were scheduled for 
construction and service by that date under the Network Sharing 
Agreement for which it is providing service, the type of service it is 
providing for each area, and the type of technology it is utilizing to 
provide this service.
    (ii) Electronic coverage maps and supporting technical 
documentation providing the assumptions used by the licensee to create 
the coverage maps, including the propagation model and the signal 
strength necessary to provide service.
    (n) At the end of its license term, the Upper 700 MHz D Block 
licensee must, in order to renew its license, make a showing of its 
success in meeting the material requirements set forth in the Network 
Sharing Agreement as well as all other license conditions, including 
the performance benchmark requirements set forth in this section.


Sec.  27.15  [Amended]

0
19. Amend Sec.  27.15 by revising paragraph (d) to read as follows:


Sec.  27.15  Geographic partitioning and spectrum disaggregation.

* * * * *
    (d) Compliance with construction requirements--(1) Partitioning. 
(i) Except for WCS licensees holding authorizations for Block A in the 
698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-
740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, and C2 in 
the 746-757 MHz and 776-787 MHz bands, and Block D in the 758-763 MHz 
and 788-793 MHz bands, the following rules apply to WCS and AWS 
licensees holding authorizations for purposes of implementing the 
construction requirements set forth in Sec.  27.14. Parties to 
partitioning agreements have two options for satisfying the 
construction requirements set forth in Sec.  27.14. Under the first 
option, the partitioner and partitionee each certifies that it will 
independently satisfy the substantial service requirement for its 
respective partitioned area. If a licensee subsequently fails to meet 
its substantial service requirement, its license will be subject to 
automatic cancellation without further Commission action. Under the 
section option, the partitioner certifies that it has met or will meet 
the substantial service requirement for the entire, pre-partitioned 
geographic service area. If the partitioner subsequently fails to meet 
its substantial service requirement, only its license will be subject 
to automatic cancellation without further Commission action.
    (ii) For WCS licensees holding authorizations for Block A in the 
698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-
740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1, and 
C2 in the 746-757 MHz and 776-787 MHz bands, the following rules apply 
for purposes of implementing the construction requirements set forth in 
Sec.  27.14. Parties to partitioning agreements have two options for 
satisfying the construction requirements set forth in Sec.  27.14. 
Under the first option, the partitioner and partitionee each certifies 
that they will collectively share responsibility for meeting the 
construction requirement for the entire pre-partition geographic 
license area. If the partitioner and partitionee collectively fail to 
meet the construction requirement, then both the partitioner and 
partitionee will be subject to the consequences enumerated in Sec.  
27.14(g) and (h) for this failure. Under the second option, the 
partitioner and partitionee each certifies that it will independently 
meet the construction requirement for its respective partitioned 
license area. If the partitioner or partitionee fails to meet the 
construction requirement for its respective partitioned license area, 
then the consequences for this failure shall be those enumerated in 
Sec.  27.14(g) and (h).
    (2) Disaggregation. (i) Except for WCS licensees holding 
authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, 
Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-
728 MHz band, and Blocks C, C1, and C2 in the 746-757 MHz and 776-787 
MHz bands, and Block D in the 758-763 MHz and 788-793 MHz bands, the 
following rules apply to WCS and AWS licensees holding authorizations 
for purposes of implementing the construction requirements set forth in 
Sec.  27.14. Parties to disaggregation agreements have two options for 
satisfying the construction requirements set forth in Sec.  27.14. 
Under the first option, the disaggregator and disaggregatee each 
certifies that it will share responsibility for meeting the substantial 
service requirement for the geographic service area. If the parties 
choose this option and either party subsequently fails to satisfy its 
substantial service responsibility, both parties' licenses will be 
subject to forfeiture without further Commission action. Under the 
second option, both parties certify either that the disaggregator or 
the disaggregatee will meet the substantial service requirement for the 
geographic service area. If the parties choose this option, and the 
party responsible subsequently fails to meet the substantial service 
requirement, only that party's license will be subject to forfeiture 
without further Commission action.
    (ii) For WCS licensees holding authorizations for Block A in the 
698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-
740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1, and 
C2 in the 746-757 MHz and 776-787 MHz bands, the following rules apply 
for purposes of implementing the

[[Page 48849]]

construction requirements set forth in Sec.  27.14. If either the 
disaggregator or the disaggregatee meets the construction requirements 
set forth in Sec.  27.14, then these requirements will be considered to 
be satisfied for both parties. If neither the disaggregator nor the 
disaggregatee meets the construction requirements, then both parties 
will be subject to the consequences enumerated in Sec.  27.14(g) and 
(h) for this failure.

0
20. Add Sec.  27.16 to subpart B to read as follows:


Sec.  27.16  Network access requirements for Block C in the 746-757 and 
776-787 MHz bands.

    (a) Applicability. This section shall apply only to the 
authorizations for Block C in the 746-757 and 776-787 MHz bands 
assigned and only if the results of the first auction in which licenses 
for such authorizations are offered satisfied the applicable reserve 
price.
    (b) Use of devices and applications. Licensees offering service on 
spectrum subject to this section shall not deny, limit, or restrict the 
ability of their customers to use the devices and applications of their 
choice on the licensee's C Block network, except:
    (1) Insofar as such use would not be compliant with published 
technical standards reasonably necessary for the management or 
protection of the licensee's network, or
    (2) As required to comply with statute or applicable government 
regulation.
    (c) Technical standards. For purposes of paragraph (b)(1) of this 
section:
    (1) Standards shall include technical requirements reasonably 
necessary for third parties to access a licensee's network via devices 
or applications without causing objectionable interference to other 
spectrum users or jeopardizing network security. The potential for 
excessive bandwidth demand alone shall not constitute grounds for 
denying, limiting or restricting access to the network.
    (2) To the extent a licensee relies on standards established by an 
independent standards-setting body which is open to participation by 
representatives of service providers, equipment manufacturers, 
application developers, consumer organizations, and other interested 
parties, the standards will carry a presumption of reasonableness.
    (3) A licensee shall publish its technical standards, which shall 
be non-proprietary, no later than the time at which it makes such 
standards available to any preferred vendors, so that the standards are 
readily available to customers, equipment manufacturers, application 
developers, and other parties interested in using or developing 
products for use on a licensee's networks.
    (d) Access requests. (1) Licensees shall establish and publish 
clear and reasonable procedures for parties to seek approval to use 
devices or applications on the licensees' networks. A licensee must 
also provide to potential customers notice of the customers' rights to 
request the attachment of a device or application to the licensee's 
network, and notice of the licensee's process for customers to make 
such requests, including the relevant network criteria.
    (2) If a licensee determines that a request for access would 
violate its technical standards or regulatory requirements, the 
licensee shall expeditiously provide a written response to the 
requester specifying the basis for denying access and providing an 
opportunity for the requester to modify its request to satisfy the 
licensee's concerns.
    (e) Handset locking prohibited. No licensee may disable features on 
handsets it provides to customers, to the extent such features are 
compliant with the licensee's standards pursuant to paragraph (b)of 
this section, nor configure handsets it provides to prohibit use of 
such handsets on other providers' networks.
    (f) Burden of proof. Once a complainant sets forth a prima facie 
case that the C Block licensee has refused to attach a device or 
application in violation of the requirements adopted in this section, 
the licensee shall have the burden of proof to demonstrate that it has 
adopted reasonable network standards and reasonably applied those 
standards in the complainant's case. Where the licensee bases its 
network restrictions on industry-wide consensus standards, such 
restrictions would be presumed reasonable.

0
21. Section 27.50 is amended by revising paragraphs (b)(1) through 
(b)(12), (c)(5), (c)(7), (c)(8), (c)(11), and by revising tables 1, 2, 
3, and 4 at the end of the section.


Sec.  27.50  Power and antenna height limits.

* * * * *
    (b) * * *
    (1) Fixed and base stations transmitting a signal in the 757-758 
and 775-776 MHz bands must not exceed an effective radiated power (ERP) 
of 1000 watts and an antenna height of 305 m height above average 
terrain (HAAT), except that antenna heights greater than 305 m HAAT are 
permitted if power levels are reduced below 1000 watts ERP in 
accordance with Table 1 of this section.
    (2) Fixed and base stations transmitting a signal in the 746-757 
MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands with an emission 
bandwidth of 1 MHz or less must not exceed an ERP of 1000 watts and an 
antenna height of 305 m HAAT, except that antenna heights greater than 
305 m HAAT are permitted if power levels are reduced below 1000 watts 
ERP in accordance with Table 1 of this section.
    (3) Fixed and base stations located in a county with population 
density of 100 or fewer persons per square mile, based upon the most 
recently available population statistics from the Bureau of the Census, 
and transmitting a signal in the 746-757 MHz, 758-763 MHz, 776-787 MHz, 
and 788-793 MHz bands with an emission bandwidth of 1 MHz or less must 
not exceed an ERP of 2000 watts and an antenna height of 305 m HAAT, 
except that antenna heights greater than 305 m HAAT are permitted if 
power levels are reduced below 2000 watts ERP in accordance with Table 
2 of this section.
    (4) Fixed and base stations transmitting a signal in the 746-757 
MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands with an emission 
bandwidth greater than 1 MHz must not exceed an ERP of 1000 watts/MHz 
and an antenna height of 305 m HAAT, except that antenna heights 
greater than 305 m HAAT are permitted if power levels are reduced below 
1000 watts/MHz ERP accordance with Table 3 of this section.
    (5) Fixed and base stations located in a county with population 
density of 100 or fewer persons per square mile, based upon the most 
recently available population statistics from the Bureau of the Census, 
and transmitting a signal in the 746-757 MHz, 758-763 MHz, 776-787 MHz, 
and 788-793 MHz bands with an emission bandwidth greater than 1 MHz 
must not exceed an ERP of 2000 watts/MHz and an antenna height of 305 m 
HAAT, except that antenna heights greater than 305 m HAAT are permitted 
if power levels are reduced below 2000 watts/MHz ERP in accordance with 
Table 4 of this section.
    (6) Licensees of fixed or base stations transmitting a signal in 
the 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands at an 
ERP greater than 1000 watts must comply with the provisions set forth 
in paragraph (b)(8) of this section and Sec.  27.55(c).
    (7) Licensees seeking to operate a fixed or base station located in 
a county with population density of 100 or fewer persons per square 
mile, based upon the most recently available population

[[Page 48850]]

statistics from the Bureau of the Census, and transmitting a signal in 
the 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands at an 
ERP greater than 1000 watts must:
    (i) coordinate in advance with all licensees authorized to operate 
in the 698-763 MHz, 775-793, and 805-806 MHz bands within 120 
kilometers (75 miles) of the base or fixed station;
    (ii) coordinate in advance with all regional planning committees, 
as identified in Sec.  90.527 of this chapter, with jurisdiction within 
120 kilometers (75 miles) of the base or fixed station.
    (8) Licensees authorized to transmit in the 746-757 MHz, 758-763 
MHz, 776-787 MHz, and 788-793 MHz bands and intending to operate a base 
or fixed station at a power level permitted under the provisions of 
paragraph (b)(6) of this section must provide advanced notice of such 
operation to the Commission and to licensees authorized in their area 
of operation. Licensees who must be notified are all licensees 
authorized to operate in the 763-775 MHz and 793-805 MHz bands under 
part 90 of this chapter within 75 km of the base or fixed station and 
all regional planning committees, as identified in Sec.  90.527 of this 
chapter, with jurisdiction within 75 km of the base or fixed station. 
Notifications must provide the location and operating parameters of the 
base or fixed station, including the station's ERP, antenna 
coordinates, antenna height above ground, and vertical antenna pattern, 
and such notifications must be provided at least 90 days prior to the 
commencement of station operation.
    (9) Control stations and mobile stations transmitting in the 746-
757 MHz, 758-763 MHz, 776-793 MHz, and 805-806 MHz bands and fixed 
stations transmitting in the 787-788 MHz and 805-806 MHz bands are 
limited to 30 watts ERP.
    (10) Portable stations (hand-held devices) transmitting in the 746-
757 MHz, 758-763 MHz, 776-793 MHz, and 805-806 MHz bands are limited to 
3 watts ERP.
    (11) For transmissions in the 757-758, 775-776, 787-788, and 805-
806 MHz bands, maximum composite transmit power shall be measured over 
any interval of continuous transmission using instrumentation 
calibrated in terms of RMS-equivalent voltage. The measurement results 
shall be properly adjusted for any instrument limitations, such as 
detector response times, limited resolution bandwidth capability when 
compared to the emission bandwidth, etc., so as to obtain a true 
maximum composite measurement for the emission in question over the 
full bandwidth of the channel.
    (12) For transmissions in the 746-757, 758-763, 776-787, and 788-
793 MHz bands, licensees may employ equipment operating in compliance 
with either the measurement techniques described in paragraph (b)(11) 
of this section or a Commission-approved average power technique. In 
both instances, equipment employed must be authorized in accordance 
with the provisions of Sec.  27.51.
    (c) * * *
    (5) Licensees seeking to operate a fixed or base station located in 
a county with population density of 100 or fewer persons per square 
mile, based upon the most recently available population statistics from 
the Bureau of the Census, and transmitting a signal at an ERP greater 
than 1000 watts must:
    (i) coordinate in advance with all licensees authorized to operate 
in the 698-763 MHz, 775-793, and 805-806 MHz bands within 120 
kilometers (75 miles) of the base or fixed station;
    (ii) coordinate in advance with all regional planning committees, 
as identified in Sec. Sec.  90.527 of this chapter, with jurisdiction 
within 120 kilometers (75 miles) of the base or fixed station.
* * * * *
    (7) A licensee authorized to operate in the 710-716, 716-722, or 
740-746 MHz bands, or in any unpaired spectrum blocks within the 698-
746 MHz band, may operate a fixed or base station at an ERP up to a 
total of 50 kW within its authorized, 6 MHz spectrum block if the 
licensee complies with the provisions of Sec.  27.55(b). The antenna 
height for such stations is limited only to the extent required to 
satisfy the requirements of Sec.  27.55(b).
    (8) Licensees intending to operate a base or fixed station at a 
power level permitted under the provisions of paragraph (c)(6) of this 
section must provide advanced notice of such operation to the 
Commission and to licensees authorized in their area of operation. 
Licensees who must be notified are all licensees authorized under this 
part to operate on an adjacent spectrum block within 75 km of the base 
or fixed station. Notifications must provide the location and operating 
parameters of the base or fixed station, including the station's ERP, 
antenna coordinates, antenna height above ground, and vertical antenna 
pattern, and such notifications must be provided at least 90 days prior 
to the commencement of station operation.
* * * * *
    (11) Licensees may employ equipment operating in compliance with 
either the measurement techniques described in paragraph (b)(11) of 
this section or a Commission-approved average power technique. In both 
instances, equipment employed must be authorized in accordance with the 
provisions of Sec.  27.51.
* * * * *

Table 1 to Sec.   27.50.--Permissible Power and Antenna Heights for Base
and Fixed Stations in the 757-758 and 775-776 MHz Bands and for Base and
 Fixed Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788-793
 MHz Bands Transmitting a Signal With an Emission Bandwidth of 1 MHz or
                                  Less
------------------------------------------------------------------------
                                                             Effective
         Antenna height (AAT) in  meters  (feet)          radiated power
                                                          (ERP)  (watts)
------------------------------------------------------------------------
Above 1372 (4500).......................................              65
Above 1220 (4000) To 1372 (4500)........................              70
Above 1067 (3500) To 1220 (4000)........................              75
Above 915 (3000) To 1067 (3500).........................             100
Above 763 (2500) To 915 (3000)..........................             140
Above 610 (2000) To 763 (2500)..........................             200
Above 458 (1500) To 610 (2000)..........................             350
Above 305 (1000) To 458 (1500)..........................             600
Up to 305 (1000)........................................            1000
------------------------------------------------------------------------


Table 2 to Sec.   27.50.--Permissible Power and Antenna Heights for Base
and Fixed Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788-
 793 MHz Bands Transmitting a Signal With an Emission Bandwidth of 1 MHz
                                 or Less
------------------------------------------------------------------------
                                                             Effective
         Antenna height (AAT) in  meters  (feet)          radiated power
                                                          (ERP)  (watts)
------------------------------------------------------------------------
Above 1372 (4500).......................................             130
Above 1220 (4000) To 1372 (4500)........................             140
Above 1067 (3500) To 1220 (4000)........................             150
Above 915 (3000) To 1067 (3500).........................             200
Above 763 (2500) To 915 (3000)..........................             280
Above 610 (2000) To 763 (2500)..........................             400
Above 458 (1500) To 610 (2000)..........................             700
Above 305 (1000) To 458 (1500)..........................            1200

[[Page 48851]]

 
Up to 305 (1000)........................................            2000
------------------------------------------------------------------------


Table 3 to Sec.   27.50.--Permissible Power and Antenna Heights for Base
and Fixed Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788-
 793 MHz Bands Transmitting a Signal With an Emission Bandwidth Greater
                               than 1 MHz
------------------------------------------------------------------------
                                                             Effective
                                                          radiated power
         Antenna height (AAT) in  meters  (feet)           (ERP) per MHz
                                                            (watts/MHz)
------------------------------------------------------------------------
Above 1372 (4500).......................................              65
Above 1220 (4000) To 1372 (4500)........................              70
Above 1067 (3500) To 1220 (4000)........................              75
Above 915 (3000) To 1067 (3500).........................             100
Above 763 (2500) To 915 (3000)..........................             140
Above 610 (2000) To 763 (2500)..........................             200
Above 458 (1500) To 610 (2000)..........................             350
Above 305 (1000) To 458 (1500)..........................             600
Up to 305 (1000)........................................            1000
------------------------------------------------------------------------


Table 4 to Sec.   27.50.--Permissible Power and Antenna Heights for Base
and Fixed Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788-
 793 MHz Bands Transmitting a Signal With an Emission Bandwidth Greater
                               than 1 MHz
------------------------------------------------------------------------
                                                             Effective
                                                          radiated power
         Antenna height (AAT) in  meters  (feet)           (ERP) per MHz
                                                           (watts/MHz )
------------------------------------------------------------------------
Above 1372 (4500).......................................             130
Above 1220 (4000) To 1372 (4500)........................             140
Above 1067 (3500) To 1220 (4000)........................             150
Above 915 (3000) To 1067 (3500).........................             200
Above 763 (2500) To 915 (3000)..........................             280
Above 610 (2000) To 763 (2500)..........................             400
Above 458 (1500) To 610 (2000)..........................             700
Above 305 (1000) To 458 (1500)..........................            1200
Up to 305 (1000)........................................            2000
------------------------------------------------------------------------


0
22. Amend Sec.  27.53 as follows:
0
a. Revise paragraph (c) introductory text and paragraphs (c)(1) through 
(c)(4).
0
b. Redesignate paragraphs (d) through (m) as paragraphs (e) through 
(n).
0
c. Add new paragraph (d).
0
d. Revise newly redesignated paragraph (e) introductory text.
0
e. Redesignate newly redesignated paragraphs (e)(1) through (e)(4) as 
paragraphs (e)(6) through (e)(9).
0
f. Add new paragraphs (e)(1) through (e)(5).
0
g. Revise newly redesignated paragraph (f).


Sec.  27.53  Emission limits.

* * * * *
    (c) For operations in the 746-758 MHz band and the 776-788 MHz 
band, the power of any emission outside the licensee's frequency 
band(s) of operation shall be attenuated below the transmitter power 
(P) within the licensed band(s) of operation, measured in watts, in 
accordance with the following:
    (1) On any frequency outside the 746-758 MHz band, the power of any 
emission shall be attenuated outside the band below the transmitter 
power (P) by at least 43 + 10 log (P) dB;
    (2) On any frequency outside the 776-788 MHz band, the power of any 
emission shall be attenuated outside the band below the transmitter 
power (P) by at least 43 + 10 log (P) dB;
    (3) On all frequencies between 763-775 MHz and 793-805 MHz, by a 
factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment, for 
base and fixed stations;
    (4) On all frequencies between 763-775 MHz and 793-805 MHz, by a 
factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for 
mobile and portable stations;
* * * * *
    (d) For operations in the 758-763 MHz and 788-793 MHz bands, the 
power of any emission outside the licensee's frequency bands of 
operation shall be attenuated below the transmitter power (P) within 
the licensed band(s) of operation, measured in watts, in accordance 
with the following:
    (1) On all frequencies between 769-775 MHz and 799-805 MHz, by a 
factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment, for 
base and fixed stations;
    (2) On all frequencies between 769-775 MHz and 799-805 MHz, by a 
factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for 
mobile and portable stations;
    (3) On any frequency between 775-788 MHz, above 805 MHz, and below 
758 MHz, by at least 43 + 10 log (P) dB;
    (4) Compliance with the provisions of paragraphs (d)(1) and (d)(2) 
of this section is based on the use of measurement instrumentation such 
that the reading taken with any resolution bandwidth setting should be 
adjusted to indicate spectral energy in a 6.25 kHz segment;
    (5) Compliance with the provisions of paragraph (d)(3) of this 
section is based on the use of measurement instrumentation employing a 
resolution bandwidth of 100 kHz or greater. However, in the 100 kHz 
bands immediately outside and adjacent to the frequency block, a 
resolution bandwidth of at least 30 kHz may be employed.
    (e) For operations in the 775-776 MHz and 805-806 MHz bands, 
transmitters must comply with either paragraphs (e)(1) to (e)(5) of 
this section or the ACP emission limitations set forth in paragraphs 
(e)(6) to (e)(9) of this section.
    (1) On all frequencies between 763-775 MHz and 793-805 MHz, the 
power of any emission outside the licensee's frequency bands of 
operation shall be attenuated below the transmitter power (P) within 
the licensed band(s) of operation, measured in watts, by a factor not 
less than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and 
fixed stations;
    (2) On all frequencies between 763-775 MHz and 793-805 MHz, the 
power of any emission outside the licensee's frequency bands of 
operation shall be attenuated below the transmitter power (P) within 
the licensed band(s) of operation, measured in watts, by a factor not 
less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile and 
portable stations;

[[Page 48852]]

    (3) On any frequency outside the 775-776 MHz and 805-806 MHz bands, 
the power of any emission shall be attenuated outside the band below 
the transmitter power (P) within the licensed band(s) of operation, 
measured in watts, by at least 43 + 10 log (P) dB;
    (4) Compliance with the provisions of paragraphs (e)(1) and (e)(2) 
of this section is based on the use of measurement instrumentation such 
that the reading taken with any resolution bandwidth setting should be 
adjusted to indicate spectral energy in a 6.25 kHz segment;
    (5) Compliance with the provisions of paragraph (e)(3) of this 
section is based on the use of measurement instrumentation employing a 
resolution bandwidth of 100 kHz or greater. However, in the 100 kHz 
bands immediately outside and adjacent to the frequency block, a 
resolution bandwidth of at least 30 kHz may be employed.
* * * * *
    (f) For operations in the 746-763 MHz, 775-793 MHz, and 805-806 MHz 
bands, emissions in the band 1559-1610 MHz shall be limited to -70 dBW/
MHz equivalent isotropically radiated power (EIRP) for wideband 
signals, and -80 dBW EIRP for discrete emissions of less than 700 Hz 
bandwidth. For the purpose of equipment authorization, a transmitter 
shall be tested with an antenna that is representative of the type that 
will be used with the equipment in normal operation.
* * * * *

0
23. Section 27.55 is amended by revising the section heading and 
paragraphs (a)(2) and (c) to read as follows:


Sec.  27.55  Power strength limits.

    (a) * * *
    (2) 698-758 and 775-787 MHz bands: 40 dB[mu]V/m.
* * * * *
    (c) Power flux density limit for stations operating in the 746-757 
MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands. For base and 
fixed stations operating in the 746-757 MHz, 758-763 MHz, 776-787 MHz, 
and 788-793 MHz bands in accordance with the provisions of Sec.  
27.50(b)(6), the power flux density that would be produced by such 
stations through a combination of antenna height and vertical gain 
pattern must not exceed 3000 microwatts per square meter on the ground 
over the area extending to 1 km from the base of the antenna mounting 
structure.

0
24. Section 27.57 is amended by revising paragraph (b) to read as 
follows:


Sec.  27.57  International coordination.

* * * * *
    (b) Operation in the 698-763 MHz, 775-793 MHz, and 805-806 MHz 
bands is subject to international agreements between Mexico and Canada. 
Unless otherwise modified by international treaty, licenses must not 
cause interference to, and must accept harmful interference from, 
television broadcast operations in Mexico and Canada.
* * * * *

0
25. Section 27.60 is revised to read as follows:


Sec.  27.60  TV/DTV interference protection criteria.

    Base, fixed, control, and mobile transmitters in the 698-763 MHz, 
775-793 MHz, and 805-806 MHz frequency bands must be operated only in 
accordance with the rules in this section to reduce the potential for 
interference to public reception of the signals of existing TV and DTV 
broadcast stations transmitting on TV Channels 51 through 68.
    (a) D/U ratios. Licensees must choose site locations that are a 
sufficient distance from co-channel and adjacent channel TV and DTV 
stations, and/or must use reduced transmitting power or transmitting 
antenna height such that the following minimum desired signal-to-
undesired signal ratios (D/U ratios) are met.
    (1) The minimum D/U ratio for co-channel stations is:
    (i) 40 dB at the hypothetical Grade B contour (64 dB[mu]V/m) (88.5 
kilometers (55 miles)) of the TV station;
    (ii) For transmitters operating in the 698-746 MHz frequency band, 
23 dB at the equivalent Grade B contour (41 dB[mu]V/m) (88.5 kilometers 
(55 miles)) of the DTV station; or
    (iii) For transmitters operating in the 746-763 MHz, 775-793 MHz, 
and 805-806 MHz frequency bands, 17 dB at the equivalent Grade B 
contour (41 dB[mu]V/m) (88.5 kilometers (55 miles)) of the DTV station.
    (2) The minimum D/U ratio for adjacent channel stations is 0 dB at 
the hypothetical Grade B contour (64 dB[mu]V/m) (88.5 kilometers (55 
miles)) of the TV station or -23 dB at the equivalent Grade B contour 
(41 dB[mu]V/m) (88.5 kilometers (55 miles)) of the DTV station.
    (b) TV stations and calculation of contours. The methods used to 
calculate TV contours and antenna heights above average terrain are 
given in Sec. Sec.  73.683 and 73.684 of this chapter. Tables to 
determine the necessary minimum distance from the 698-763 MHz, 775-793 
MHz, and 805-806 MHz station to the TV/DTV station, assuming that the 
TV/DTV station has a hypothetical or equivalent Grade B contour of 88.5 
kilometers (55 miles), are located in Sec.  90.309 of this chapter and 
labeled as Tables B, D, and E. Values between those given in the tables 
may be determined by linear interpolation. Distances for station 
parameters greater than those indicated in the tables should be 
calculated in accordance with the required D/U ratios, as provided in 
paragraph (a) of this section. The locations of existing and proposed 
TV/DTV stations during the period of transition from analog to digital 
TV service are given in part 73 of this chapter and in the final 
proceedings of MM Docket No. 87-268.
    (1) Licensees of stations operating within the ERP and HAAT limits 
of Sec.  27.50 must select one of four methods to meet the TV/DTV 
protection requirements, subject to Commission approval:
    (i) Utilize the geographic separation specified in Tables B, D, and 
E of Sec.  90.309 of this chapter, as appropriate;
    (ii) When station parameters are greater than those indicated in 
the tables, calculate geographic separation in accordance with the 
required D/U ratios, as provided in paragraph (a) of this section;
    (iii) Submit an engineering study justifying the proposed 
separations based on the parameters of the land mobile station and the 
parameters, including authorized and/or applied for facilities, of the 
TV/DTV station(s) it is trying to protect; or,
    (iv) Obtain written concurrence from the applicable TV/DTV 
station(s). If this method is chosen, a copy of the agreement must be 
submitted with the application.
    (2) The following is the method for geographic separations. (i) 
Base and fixed stations that operate in the 746-763 MHz, 775-787 MHz, 
and 788-793 MHz bands having an antenna height (HAAT) less than 152 m. 
(500 ft.) shall afford protection to co-channel and adjacent channel 
TV/DTV stations in accordance with the values specified in Table B (co-
channel frequencies based on 40 dB protection) and Table E (adjacent 
channel frequencies based on 0 dB protection) in Sec.  90.309 of this 
chapter. Base and fixed stations that operate in the 698-746 MHz band 
having an antenna height (HAAT) less than 152 m. (500 ft.) shall afford 
protection to adjacent channel DTV stations in accordance with the 
values specified in Table E in Sec.  90.309 of this chapter, shall 
afford protection to co-channel DTV stations by providing 23 dB 
protection to such stations'

[[Page 48853]]

equivalent Grade B contour (41 dB[mu]V/m), and shall afford protection 
to co-channel and adjacent channel TV stations in accordance with the 
values specified in Table B (co-channel frequencies based on 40 dB 
protection) and Table E (adjacent channel frequencies based on 0 dB 
protection) in Sec.  90.309 of this chapter. For base and fixed 
stations having an antenna height (HAAT) between 152-914 meters (500-
3,000 ft.) the effective radiated power must be reduced below 1 
kilowatt in accordance with the values shown in the power reduction 
graph in Figure B in Sec.  90.309 of this chapter. For heights of more 
than 152 m. (500 ft.) above average terrain, the distance to the radio 
path horizon will be calculated assuming smooth earth. If the distance 
so determined equals or exceeds the distance to the hypothetical or 
equivalent Grade B contour of a co-channel TV/DTV station (i.e., it 
exceeds the distance from the appropriate Table in Sec.  90.309 of this 
chapter to the relevant TV/DTV station), an authorization will not be 
granted unless it can be shown in an engineering study (see paragraph 
(b)(1)(iii) of this section) that actual terrain considerations are 
such as to provide the desired protection at the actual Grade B contour 
(64 dB[mu]V/m for TV and 41 dB[mu]V/m for DTV stations) or unless the 
effective radiated power will be further reduced so that, assuming free 
space attenuation, the desired protection at the actual Grade B contour 
(64 dB[mu]V/m for TV and 41 dB[mu]V/m coverage contour for DTV 
stations) will be achieved. Directions for calculating powers, heights, 
and reduction curves are listed in Sec.  90.309 of this chapter for 
land mobile stations. Directions for calculating coverage contours are 
listed in Sec.  73.683 through 73.685 of this chapter for TV stations 
and in Sec.  73.625 of this chapter for DTV stations.
    (ii) Control, fixed, and mobile stations (including portables) that 
operate in the 787-788 MHz and 805-806 MHz bands and control and mobile 
stations (including portables) that operate in the 698-757 MHz, 758-763 
MHz, 776-787 MHz, and 788-793 MHz bands are limited in height and power 
and therefore shall afford protection to co-channel and adjacent 
channel TV/DTV stations in the following manner:
    (A) For control, fixed, and mobile stations (including portables) 
that operate in the 787-788 MHz and 805-806 MHz bands and control and 
mobile stations (including portables) that operate in the 746-757 MHz, 
758-763 MHz, 776-787 MHz, and 788-793 MHz bands, co-channel protection 
shall be afforded in accordance with the values specified in Table D 
(co-channel frequencies based on 40 dB protection for TV stations and 
17 dB for DTV stations) in Sec.  90.309 of this chapter.
    (B) For control and mobile stations (including portables) that 
operate in the 698-746 MHz band, co-channel protection shall be 
afforded to TV stations in accordance with the values specified in 
Table D (co-channel frequencies based on 40 dB protection) and to DTV 
stations by providing 23 dB protection to such stations' equivalent 
Grade B contour (41 dB[mu]V/m).
    (C) For control, fixed, and mobile stations (including portables) 
that operate in the 787-788 MHz and 805-806 MHz bands and control and 
mobile stations (including portables) that operate in the 698-757 MHz, 
758-763 MHz, 776-787 MHz, and 788-793 MHz bands, adjacent channel 
protection shall be afforded by providing a minimum distance of 8 
kilometers (5 miles) from all adjacent channel TV/DTV station 
hypothetical or equivalent Grade B contours (adjacent channel 
frequencies based on 0 dB protection for TV stations and -23 dB for DTV 
stations).
    (D) Since control, fixed, and mobile stations may affect different 
TV/DTV stations than the associated base or fixed station, particular 
care must be taken by applicants/licensees to ensure that all 
appropriate TV/DTV stations are considered (e.g., a base station may be 
operating within TV Channel 62 and the mobiles within TV Channel 67, in 
which case TV Channels 61, 62, 63, 66, 67 and 68 must be protected). 
Control, fixed, and mobile stations shall keep a minimum distance of 
96.5 kilometers (60 miles) from all adjacent channel TV/DTV stations. 
Since mobiles and portables are able to move and communicate with each 
other, licensees must determine the areas where the mobiles can and 
cannot roam in order to protect the TV/DTV stations.


    Note to Sec.  27.60: The 88.5 km (55mi) Grade B service contour 
(64 dB[mu]V/m) is based on a hypothetical TV station operating at an 
effective radiated power of one megawatt, a transmitting antenna 
height above average terrain of 610 meters (2000 feet) and the 
Commission's R-6602 F(50,50) curves. See Sec.  73.699 of this 
chapter. Maximum facilities for TV stations operating in the UHF 
band are 5 megawatts effective radiated power at an antenna HAAT of 
610 meters (2,000 feet). See Sec.  73.614 of this chapter. The 
equivalent contour for DTV stations is based on a 41 dB[mu]V/m 
signal strength and the distance to the F(50,90) curve. See Sec.  
73.625 of this chapter.


0
26. Section 27.70 is amended by revising paragraph (a) introductory 
text and paragraphs (b)(1) and (b)(2) to read as follows:


Sec.  27.70  Information exchange.

    (a) Prior notification. Public safety licensees authorized to 
operate in the 763-775 MHz and 793-805 MHz bands may notify any 
licensee authorized to operate in the 746-757, 758-763, 776-787, or 
788-793 MHz bands that they wish to receive prior notification of the 
activation or modification of the licensee's base or fixed stations in 
their area. Thereafter, the 746-757, 758-763, 776-787, or 788-793 MHz 
band licensee must provide the following information to the public 
safety licensee at least 10 business days before a new base or fixed 
station is activated or an existing base or fixed station is modified:
* * * * *
    (b) * * *
    (1) Allow a public safety licensee to advise the 746-757, 758-763, 
776-787, or 788-793 MHz band licensee whether it believes a proposed 
base or fixed station will generate unacceptable interference;
    (2) Permit 746-757, 758-763, 776-787, and 788-793 MHz band 
licensees to make voluntary changes in base or fixed station parameters 
when a public safety licensee alerts them to possible interference; 
and,
* * * * *

0
27. Section 27.303 (a) is amended by revising paragraph (a) 
introductory text to read as follows:


Sec.  27.303  Upper 700 MHz commercial and public safety coordination 
zone.

    (a) General. CMRS operators are required, prior to commencing 
operations on fixed or base station transmitters on the 776-787 MHz and 
788-793 MHz bands that are located within 500 meters of existing or 
planned public safety base station receivers, to submit a description 
of their proposed facility to a Commission-approved public safety 
coordinator.
* * * * *

0
28. Section 27.501 is revised to read as follows:


Sec.  27.501  746-763 MHz, 775-793 MHz, and 805-806 MHz bands subject 
to competitive bidding.

    Mutually exclusive initial applications for licenses in the 746-763 
MHz, 775-793 MHz, and 805-806 MHz bands are subject to competitive 
bidding. The general competitive bidding procedures set forth in part 
1, subpart Q of this chapter will apply unless otherwise provided in 
this subpart.

0
29. Section 27.601 is amended by revising paragraph (c)(1) introductory 
text to read as follows:

[[Page 48854]]

Sec.  27.601  Authority and coordination requirements.

* * * * *
    (c) * * *
    (1) A Guard Band licensee, or a spectrum lessee operating at 775-
776 MHz and 805-806 MHz pursuant to a spectrum lease arrangement under 
Sec. Sec.  1.9030 and 1.9035 of this chapter, must notify Commission-
recognized public safety frequency coordinators for the 700 MHz Public 
Safety band and adjacent-area Guard Band licensees within one business 
day after the licensee or the spectrum lessee has:
* * * * *

0
30. Add subpart N to part 27 as follows:

Subpart N--700 MHz Public/Private Partnership

Sec.
27.1301 Purpose and scope.
27.1303 Upper 700 MHz D Block license conditions.
27.1305 Shared wireless broadband network.
27.1307 Spectrum use in the network.
27.1308 Organization and structure of the 700 MHz public/private 
partnership.
27.1310 Network sharing agreement.
27.1315 Establishment, execution, and application of the network 
sharing agreement.
27.1320 Failure to comply with the NSA or the Commission's rules.
27.1325 Resolution of disputes after grant of the upper 700 MHz D 
block license.
27.1327 Construction requirements; criteria for renewal.
27.1330 Local public safety build-out and operation.
27.1333 Geographic partitioning, spectrum disaggregation, license 
assignment, and transfer.
27.1335 Prohibition on discontinuance of public safety operations.
27.1340 Reporting obligations.


Sec.  27.1301  Purpose and scope.

    The purpose of this subpart, in conjunction with subpart AA of part 
90, is to establish rules and procedures relating to the 700 MHz 
Public/Private Partnership entered between the winning bidder for the 
Upper 700 MHz D Block license, the Upper 700 MHz D Block licensee, the 
Network Assets Holder, the Operating Company, the Public Safety 
Broadband Licensee, and other related entities as the Commission may 
require or allow. Pursuant to this partnership, the Upper 700 MHz D 
Block licensee and the Operating Company will be responsible for 
constructing and operating a nationwide, shared interoperable wireless 
broadband network used to provide a commercial service and a broadband 
network service for public safety entities. The shared network assets 
will be held by the Network Assets Holder and the Shared Wireless 
Broadband Network will operate on both the commercial spectrum licensed 
to the Upper 700 MHz D Block licensee and the public safety broadband 
spectrum licensed to the Public Safety Broadband Licensee. This subpart 
of the part 27 rules sets forth specific provisions relating to the 
Upper 700 MHz D Block license, the Upper 700 MHz D Block licensee, and 
other related entities as the Commission may require or allow with 
respect to the 700 MHz Public/Private Partnership. Subpart AA of the 
part 90 rules sets forth related provisions applicable to the Public 
Safety Broadband License and the Public Safety Broadband Licensee with 
respect to the 700 MHz Public/Private Partnership.


Sec.  27.1303  Upper 700 MHz D Block license conditions.

    (a) The winning bidder at auction of the license for Block D in the 
758-763 MHz and 788-793 MHz bands will be granted the Upper 700 MHz D 
Block license only after this winning bidder has entered, with the 
Public Safety Broadband Licensee and other related entities as the 
Commission may require or allow, into the Network Sharing Agreement 
(NSA) that has been approved by the Commission, has executed such other 
agreements as the Commission may require or allow, and has met all 
other necessary conditions pertaining to the award of this license.
    (b) The Upper 700 MHz D Block licensee shall comply with all of the 
applicable requirements set forth in this part and subpart, including 
the construction requirements set forth in Sec.  27.14, and shall 
comply with the terms of the NSA and such other agreements as the 
Commission may require or allow.
    (c) The Upper 700 MHz D Block licensee shall have the exclusive 
right to build and operate the shared wireless broadband network, 
except as set forth in Sec. Sec.  20.1330 and 90.1430 of this chapter.
    (d) The Upper 700 MHz D Block licensee must not discontinue, 
reduce, or impair service to public safety users unless and until, 
pursuant to Commission procedures, it has obtained prior authorization 
from the Commission.
    (e) The Upper 700 MHz D Block licensee must provide the Public 
Safety Broadband Licensee with priority access during emergencies, as 
specified in the NSA.
    (f) These conditions and requirements will apply to any related 
entities that the Commission may require or allow, as provided for in 
the NSA or otherwise as authorized by the Commission.


Sec.  27.1305  Shared wireless broadband network.

    The Shared Wireless Broadband Network developed by the 700 MHz 
Public/Private Partnership must be designed to meet requirements 
associated with a nationwide, public safety broadband network. At a 
minimum, the network must incorporate the following features:
    (a) Design for operation over a broadband technology platform that 
provides mobile voice, video, and data capability that is seamlessly 
interoperable across public safety local and state agencies, 
jurisdictions, and geographic areas, and that includes current and 
evolving state-of-the-art technologies reasonably made available in the 
commercial marketplace with features beneficial to the public safety 
community.
    (b) Sufficient signal coverage to ensure reliable operation 
throughout the service area consistent with typical public safety 
communications systems.
    (c) Sufficient robustness to meet the reliability and performance 
requirements of public safety.
    (d) Sufficient capacity to meet the needs of public safety.
    (e) Security and encryption consistent with state-of-the-art 
technologies.
    (f) A mechanism to automatically prioritize public safety 
communications over commercial uses on a real-time basis consistent 
with the requirements of Sec.  27.1307.
    (g) Operational capabilities consistent with features and 
requirements that are typical of current and evolving state-of-the-art 
public safety systems.
    (h) Operational control of the network by the Public Safety 
Broadband Licensee to the extent necessary to ensure that public safety 
requirements are met.


Sec.  27.1307  Spectrum use in the network.

    (a) Spectrum use. The shared wireless broadband network developed 
by the 700 MHz Public/Private Partnership will operate using spectrum 
associated with the Upper 700 MHz D Block license in the 758-763 MHz 
and 788-793 MHz bands and the Public Safety Broadband License in the 
adjacent 763-768 MHz and 793-798 MHz bands.
    (b) Access to spectrum in the 758-763 MHz and 788-793 MHz bands. 
The Upper 700 MHz D Block licensee shall lease the spectrum rights 
associated with the Upper 700 MHz D Block license to the Operating 
Company, pursuant to the Commission's spectrum leasing rules. The 
spectrum leasing

[[Page 48855]]

arrangement shall be a long-term de facto transfer leasing arrangement 
for the entire remaining term of the Upper 700 MHz D Block license. If 
the Upper 700 MHz D Block license is renewed, the parties will be 
required to renew this spectrum leasing arrangement as well.
    (c) Access to spectrum in the 763-768 MHz and 793-798 MHz bands. 
The Public Safety Broadband Licensee, which holds the Public Safety 
Broadband License pursuant to part 90 rules, must lease the spectrum 
usage rights associated with this license, pursuant to a spectrum 
manager leasing arrangement set forth in part 1 subpart X, to the Upper 
700 MHz D Block licensee and the Operating Company for the entire 
remaining term of the Public Safety Broadband License to effectuate the 
700 MHz Public/Private Partnership. The Upper 700 MHz D Block licensee 
and the Operating Company are the only entities that are eligible to 
lease the spectrum usage rights associated with the Public Safety 
Broadband License to operate on the 763-768 and 793-798 MHz bands. If 
the Upper 700 MHz D Block license is cancelled, this spectrum leasing 
arrangement will automatically terminate.
    (d) Commercial operations in the 763-768 MHz and 793-798 MHz bands. 
Commercial operations in the 763-768 MHz and 793-798 MHz bands through 
the spectrum manager leasing arrangement shall not cause harmful 
interference to primary users (i.e., public safety users) and cannot 
claim protection from harmful interference from the primary public 
safety operations in the 763-768 MHz and 793-798 MHz bands. The network 
providing commercial operations in the 763-768 MHz and 793-798 MHz 
bands through the spectrum manager leasing arrangement must be designed 
to automatically assign priority to public safety users, to the 
exclusion and/or immediate preemption of any commercial use on a 
dynamic, real-time priority basis, and to guarantee that public safety 
users suffer no harmful interference or interruption or degradation of 
service due to commercial operations in the 763-768 MHz and 793-798 MHz 
bands.


Sec.  27.1308  Organization and structure of the 700 MHz public/private 
partnership.

    (a) The Upper 700 MHz D Block licensee, the Network Assets Holder 
and such other related entities as the Commission may require or allow 
shall be formed by the winning bidder of the Upper 700 MHz D Block 
license. The Upper 700 MHz D Block licensee, the Network Assets Holder, 
and related entities as the Commission may require or allow must be 
Special Purpose Bankruptcy Remote Entities formed to hold the license, 
to hold the shared network assets, or for such other purpose as the 
Commission may require or allow. The winning bidder of the Upper 700 
MHz D Block license shall also form the Operating Company, which must 
also be a Special Purpose Bankruptcy Remote Entity. Upon issuance of 
the Upper 700 MHz D Block license, the winning bidder will assign all 
of its rights and obligations under the NSA to the Upper 700 MHz D 
Block licensee, Network Assets Holder, the Operating Company, and any 
other related entities that the Commission may require or allow.
    (b) The Upper 700 MHz D Block licensee and other related entities 
as the Commission may require or allow shall have the obligation to 
build out the Shared Wireless Broadband Network, as provided for in the 
NSA or otherwise as authorized by the Commission.


Sec.  27.1310  Network sharing agreement.

    The relationship between the Upper 700 MHz D Block licensee, the 
Public Safety Broadband Licensee, and related entities as the 
Commission may require or allow will be governed by the Network Sharing 
Agreement (NSA) and such other separate agreements as the Commission 
may require or allow that are negotiated and entered into between the 
parties. The NSA must, at a minimum, include the following terms:
    (a) All of the substantive rights and obligations of the parties 
relating to the NSA, as established by the Commission concerning the 
700 MHz Public/Private Partnership.
    (b) Network specifications that comply with Sec.  27.1305.
    (c) The definition of ``emergency'' for purposes of emergency 
priority access.
    (d) All service fees to be imposed for services to public safety, 
including fees for normal network service and fees for priority access 
to the D Block spectrum in an emergency.
    (e) A detailed build-out schedule consistent with Sec.  27.1327, 
including coverage of major highways and interstates, as well as 
incorporated communities with a population in excess of 3,000.
    (f) The right of the Public Safety Broadband Licensee to determine 
and approve the specifications of public safety equipment used on the 
network and the right to purchase its own subscriber equipment from any 
vendor it chooses, to the extent such specifications and equipment are 
consistent with reasonable network control requirements established in 
the NSA.
    (g) The Upper 700 MHz D Block licensee must offer at least one 
handset suitable for public safety use that includes a seamlessly 
integrated satellite solution pursuant to the terms, conditions, and 
timeframes set forth in the NSA.
    (h) Any major modification of the terms of the NSA, related 
agreements or documents, or such other agreements as the Commission may 
require or allow must be submitted to the Commission for prior 
approval. All other modifications must be submitted to the Chiefs of 
the Wireless Telecommunications Bureau and the Public Safety and 
Homeland Security Bureau for prior approval.
    (i) The NSA shall require, in a separate agreement, the granting of 
an irrevocable and assignable right of first refusal to purchase the 
network assets if and whenever such assets are otherwise to be sold and 
an irrevocable and assignable option in favor of the Public Safety 
Broadband Licensee to purchase the network and all network assets if 
and whenever the Upper 700 MHz D Block license is cancelled or 
terminated, by reason of default or for any other reason, for a 
consideration equivalent to the fair market value of the tangible and 
intangible assets sold. This right and option shall be senior to, and 
have priority over, any other right, claim, or interest in or to the 
network or the network assets. The NSA shall also include a fair market 
valuation methodology to determine the fair market value of the shared 
wireless broadband network assets.
    (j) The NSA must have a term, not to exceed 10 years from February 
17, 2009, that coincides with the terms of the Upper 700 MHz D Block 
license and the Public Safety Broadband License.


Sec.  27.1315  Establishment, execution, and application of the network 
sharing agreement.

    The following requirements and processes relate to the 
establishment, execution, and application of the NSA:
    (a) Approval of NSA as pre-condition for granting the Upper 700 MHz 
D Block License. The Commission shall not grant the Upper 700 MHz D 
Block license until the winning bidder for the Upper 700 MHz D Block 
license has negotiated the NSA and such other agreements as the 
Commission may require or allow with the Public Safety Broadband 
Licensee, and the NSA and related agreements or documents have been 
approved by the Commission and executed by the required parties. 
Parties to the NSA must also include the Upper

[[Page 48856]]

700 MHz D Block licensee, the Network Assets Holder, and the Operating 
Company, as these entities are defined in Sec.  27.4.
    (b) Requirement of negotiation. Negotiation of an NSA between the 
winning bidder for the Upper 700 MHz D Block license and the Public 
Safety Broadband Licensee must commence by the date the winning bidder 
files its long form application or the date on which the Commission 
designates the Public Safety Broadband Licensee, whichever is later, 
and must conclude within six months of that date. Parties to this 
negotiation are required to negotiate in good faith. Two members of the 
Commission staff, one from the Wireless Telecommunications Bureau and 
one from the Public Safety and Homeland Security Bureau, shall be 
present at all stages of the negotiation as neutral observers.
    (c) Reporting requirements. The winning bidder for the Upper 700 
MHz D Block license must file a report with the Commission within 10 
business days of the commencement of the negotiation period certifying 
that active and good faith negotiations have begun, providing the date 
on which they commenced, and providing a schedule of the initial dates 
on which the parties intend to meet for active negotiations, covering 
at a minimum the first 30-day period. Beginning three months from the 
triggering of the six-month negotiation period, the winning bidder for 
the Upper 700 MHz D Block license and the Public Safety Broadband 
Licensee must jointly provide detailed reports, on a monthly basis and 
subject to a request for confidential treatment, on the progress of the 
negotiations throughout the remainder of the negotiations. These 
reports must include descriptions of all material issues that the 
parties have yet to resolve.
    (d) Submission of final agreement. As soon as the parties have 
reached an agreement on all the terms of the NSA, related agreements or 
documents, and such other agreements as the Commission may require or 
allow, but not later than five business days after the six-month period 
for negotiation has expired, they must submit the NSA together with all 
agreements and related documents referenced in the NSA, for review and 
approval by the full Commission. The Commission will act on the NSA 
within 60 days of receipt. The Commission may approve the NSA in its 
entirety, approve with modifications, or require the parties to address 
additional terms or re-draft existing terms within a specified 
timeframe. After the NSA is approved, the parties must execute the NSA 
and such other agreements as the Commission may require or allow, and 
submit executed copies to the Commission within 10 business days of 
approval.
    (e) Submission of disputed issues. If the parties have not reached 
agreement on all terms of the NSA and related agreements by the end of 
the six-month period, they must notify the Commission not later than 
five business days after the expiration of the six-month period of the 
terms on which they have agreed, the nature of the remaining issues, 
each party's position on each issue, whether additional negotiation is 
likely to produce an agreement, and, if so, a proposed deadline for 
reaching agreement on the NSA. Authority is delegated jointly to the 
Chiefs of the Wireless Telecommunications Bureau and the Public Safety 
and Homeland Security Bureau to resolve any remaining disputes.
    (f) Resolution of disputes. Actions to resolve disputes may 
include, but are not limited to:
    (1) Granting additional time for negotiation;
    (2) Issuing a decision on the disputed issues and requiring the 
submission of a draft agreement consistent with the decision;
    (3) Directing the parties to further brief the remaining issues in 
full for immediate Commission decision; and/or
    (4) Immediate denial of the long-form application filed by the 
winning bidder for the Upper 700 MHz D Block license.
    (g) Default by winning bidder for Upper 700 MHz D Block license. If 
the winning bidder for the Upper 700 MHz D Block fails to comply with 
negotiation or dispute resolution requirements or fails to execute a 
Commission-approved NSA, its long form application will be denied. If 
the long form application of the winning bidder of the Upper 700 MHz D 
Block license is denied for any reason, including as a consequence of 
an action taken pursuant to paragraphs (e) and (f) of this section, it 
will be deemed to have defaulted under Sec.  1.2109(c) of this chapter, 
and will be liable for the default payment specified in Sec.  1.2104(g) 
of this chapter.


Sec.  27.1320  Failure to comply with the NSA or the Commission's 
rules.

    (a) Failure to comply with the Commission's rules or the terms of 
the NSA may warrant cancelling the Upper 700 MHz D Block license and 
awarding it to a new licensee. In the event the Upper 700 MHz D Block 
license is cancelled, the Commission shall issue an order cancelling 
the license and announcing the process for awarding rights to the 
spectrum to a new licensee. Pending the award to a new licensee, the 
Commission shall issue the Operating Company a special temporary 
authority to prevent interruption of services provided over the Shared 
Wireless Broadband Network. The Operating Company must continue to 
provide both commercial service and services to public safety during 
the transition. Upon grant of a new license, the Commission shall 
establish the terms and timing under which the special temporary 
authorization shall be cancelled and the new Upper 700 MHz D Block 
licensee assumes the construction and operation of the network.
    (b) If the Commission cancels or terminates the Upper 700 MHz D 
Block license, a fair market valuation of the shared wireless broadband 
network assets shall be performed immediately, pursuant to the fair 
market valuation methodology set forth in the NSA. In the event that 
the Upper 700 MHz D Block license is awarded to a new entity, the 
Public Safety Broadband Licensee's option to purchase the network and 
all network assets if and whenever the Upper 700 MHz D Block license is 
cancelled or terminated and its right of first refusal to purchase the 
network assets if and whenever such assets are otherwise to be sold 
shall be assigned to the new Upper 700 MHz D Block licensee and the new 
Network Assets Holder.


Sec.  27.1325  Resolution of disputes after grant of the upper 700 MHz 
D block license.

    (a) The Upper 700 MHz D Block licensee, the Operating Company, the 
Network Assets Holder and the Public Safety Broadband Licensee may at 
any time bring a complaint to the Commission based on a claim that 
another party to the NSA has deviated from the terms of the NSA, or a 
petition for a declaratory ruling to resolve the proper interpretation 
of an NSA term or provision. The Commission also may at any time, on 
its own motion, determine to address any material breach or interpret 
any NSA term or provision.
    (b) The Commission shall have primary responsibility and 
jurisdiction for adjudicating disputes that arise following execution 
of the NSA. The Commission may, however, require the parties to first 
seek a settlement to the dispute or authorize the parties to resolve 
the dispute through litigation or other means. Breach of license terms, 
the NSA, or the Commission's rules may result in cancellation of the 
Upper 700 MHz D Block license, the Public Safety Broadband License, or 
both.

[[Page 48857]]

    (c) The Chiefs of the Public Safety and Homeland Security Bureau 
and the Wireless Telecommunications Bureau are delegated joint 
responsibility for adjudicating disputes.


Sec.  27.1327  Construction requirements; criteria for renewal.

    (a) The Upper 700 MHz D Block licensee shall comply with the 
applicable construction requirements of Sec.  27.14.
    (b) The Upper 700 MHz D Block licensee shall comply with the 
applicable procedures and criteria for license renewal of Sec.  27.14.


Sec.  27.1330  Local public safety build-out and operation.

    (a) The Upper 700 MHz D Block licensee and the Operating Company 
through its lease arrangements shall, except in the two limited 
circumstances set forth herein, have the exclusive right to build and 
operate the Shared Wireless Broadband Network.
    (b) Rights to early build-out in areas with a build-out commitment. 
In an area where the Upper 700 MHz D Block licensee has committed, in 
the NSA, to build out by a certain date, a public safety entity may, 
with the pre-approval of the Public Safety Broadband Licensee and 
subject to the requirements set forth herein, construct a broadband 
network in that area at its own expense so long as the network is 
capable of operating on the Shared Wireless Broadband Network and meets 
all the requirements and specifications of the network required under 
the NSA.
    (1) Options for early build-out in areas with a build-out 
commitment. In order to obtain authorization to construct a broadband 
network as set forth in paragraph (b) of this section, the requesting 
public safety entity must agree to one of the following:
    (i) To, on its own, or through the Public Safety Broadband Licensee 
acting on its behalf, construct the network at its own expense, and 
upon completion of construction transfer the network to the Upper 700 
MHz D Block licensee, which shall then integrate that network into the 
Shared Wireless Broadband Network constructed pursuant to the NSA; or
    (ii) To, in agreement with the Upper 700 MHz D Block licensee, 
provide all funds necessary for the Upper 700 MHz D Block licensee to 
complete the early construction of the network, including any and all 
additional resource and personnel costs, allowing the Upper 700 MHz D 
Block licensee at all times to own, operate, and manage the network as 
an integrated part of the Shared Wireless Broadband Network.
    (2) Negotiation of amendment to NSA. Under either early build out 
option set forth in paragraph (b)(1) of this section, the Public Safety 
Broadband Licensee, the Upper 700 MHz D Block licensee, and the public 
safety entity must, prior to any construction, negotiate an amendment 
to the NSA regarding this part of the network, specifying ownership 
rights, fees, and other terms, which may be distinct from the analogous 
terms governing the Shared Wireless Broadband Network, and such 
amendment must be approved by the Commission.
    (i) Such amendment must provide the terms under which the Upper 700 
MHz D Block licensee shall receive full ownership rights and shall 
compensate the public safety entity (or the Public Safety Broadband 
Licensee, where appropriate) for the construction of the network; and 
shall, absent agreement to the contrary, provide for such transfer and 
compensation to occur prior to the scheduled build out date for such 
network in the NSA.
    (ii) Any right to compensation from the Upper 700 MHz D Block 
licensee related to such early build-out shall be limited to the cost 
that would have been incurred had the Upper 700 MHz D Block licensee 
constructed the network itself in accordance with the original terms 
and specifications of the NSA, as reasonably determined by the parties 
and negotiated as part of the NSA amendment required in paragraph 
(b)(2) of this section. Such costs shall not include costs attributable 
solely to advancing the date of construction or otherwise expediting 
the construction process.
    (3) Operations. The public safety entity may not commence 
operations on the network until ownership of the network has been 
transferred to the Upper 700 MHz D Block licensee. Further, no 
operations shall be allowed except those authorized and conducted 
pursuant to the authority of the Public Safety Broadband License.
    (4) Attribution of early build-out to national benchmarks. Upon 
completion of construction, transfer of ownership to the Upper 700 MHz 
D Block licensee, and compensation as required herein, if applicable, 
the Upper 700 MHz D Block licensee may include the network constructed 
pursuant to the early build-out provisions herein for purposes of 
determining whether it has met its national build-out benchmarks and 
the build-out requirements of the NSA.
    (5) Rights to build out and operate in areas without a build-out 
commitment. In areas for which the NSA does not require the Upper 700 
MHz D Block licensee to build out the Shared Wireless Broadband 
Network, a public safety entity may build out and operate a separate, 
exclusive network in the 700 MHz public safety broadband spectrum at 
any time, provided the public safety entity has received the written 
approval of the Public Safety Broadband Licensee and operates its 
independent network pursuant to a spectrum leasing arrangement into 
which the public safety entity has entered with the Public Safety 
Broadband Licensee.
    (i) Such leasing arrangement shall not require the approval or 
consent of the Upper 700 MHz D Block licensee; however, the Public 
Safety Broadband Licensee must provide the Upper 700 MHz D Block 
licensee with notice of the public safety entity's intent to construct 
in that area within 30 days of receipt of a request from a public 
safety entity seeking to exercise this option, and shall inform the 
Upper 700 MHz D Block licensee of the public safety entity's 
anticipated build-out date(s).
    (ii) Should the Upper 700 MHz D Block licensee, within 30 calendar 
days from receipt of notice of the public safety entity's intent to 
construct in that area, certify in writing to the Public Safety 
Broadband Licensee that it will build out the shared network in the 
area within a reasonable time of the anticipated build-out date(s), as 
determined by the Public Safety Broadband Licensee, the Public Safety 
Broadband Licensee shall not allow the public safety entity to build 
and operate its own separate exclusive network in that area, provided 
that the Upper 700 MHz D Block licensee and the Public Safety Broadband 
Licensee execute an amendment to the NSA indicating the Upper 700 MHz D 
Block licensee's commitment to build the network in that area. Such 
commitment shall become enforceable against the Upper 700 MHz D Block 
licensee as part of its overall build-out requirements.
    (iii) If the Upper 700 MHz D Block licensee does not exercise its 
option to commit to build out the network in the requested area within 
30 calendar days of receipt of notice of the public safety entity's 
intent to construct in such area, the Public Safety Broadband Licensee 
and the public safety entity may proceed with a spectrum leasing 
arrangement, which must be filed with the Commission prior to the 
public safety entity commencing any operations. The spectrum leasing 
arrangement must take the form of a spectrum manager leasing 
arrangement under the rules specified in Sec.  1.9020 of this chapter, 
and incorporate the following conditions:
    (A) The network must provide broadband operations;

[[Page 48858]]

    (B) The network must be fully interoperable with the Shared 
Wireless Broadband Network;
    (C) The network must be available for use by any public safety 
entity in the area;
    (D) The network must satisfy any other terms or conditions required 
by the Public Safety Broadband Licensee; and
    (E) The public safety entity must construct and place into 
operation its network within one year of the effective date of the 
spectrum manager leasing arrangement. If the public safety entity fails 
to place the network into operation within one year, the Public Safety 
Broadband Licensee shall terminate the spectrum leasing arrangement 
pursuant to Sec.  1.9020(h)(3) of this chapter. The public safety 
entity may also seek extended implementation authority from the 
Commission pursuant to the requirements of Sec.  90.629 of this 
chapter.
    (6) Except as set forth herein, the separate network is not 
required to meet the other specifications of the Shared Wireless 
Broadband Network. Absent agreement of the public safety entity, the 
Public Safety Broadband Licensee, and the Upper 700 MHz D Block 
licensee, the separate network may not operate using any spectrum 
associated with the Upper 700 MHz D Block license.
    (7) The Public Safety Broadband Licensee must file with the 
Commission any spectrum manager leasing arrangement as specified in 
Sec.  1.9020(e) of this chapter; such filing shall identify the public 
safety entity leasing the spectrum, the particular areas of spectrum 
leased as part of this build-out option, and the specific network 
infrastructure and equipment deployed on such leased spectrum.


Sec.  27.1333  Geographic partitioning, spectrum disaggregation, 
license assignment and transfer.

    (a) The 700 MHz Upper D Block license may not be partitioned or 
disaggregated.
    (b) The 700 MHz Upper D Block licensee will be permitted to assign 
or transfer its licensee subject to Commission review and prior 
approval. The Upper 700 MHz D Block license assignment or transfer 
applications are precluded from overnight processing.


Sec.  27.1335  Prohibition on discontinuance of public safety 
operations.

    The Upper 700 MHz D Block licensee, the Operating Company and the 
Network Assets Holder are prohibited from discontinuing or degrading 
the broadband network service provided to the Public Safety Broadband 
Licensee or to public safety entities unless either at the request of 
the public safety entity or entities in question or with the pre-
approval of the Commission. The Upper 700 MHz D Block licensee shall 
notify the affected public safety entity or entities and the Public 
Safety Broadband Licensee at least 30 days prior to any unrequested 
discontinuance or degradation of network service.


Sec.  27.1340  Reporting obligations.

    (a) The Upper 700 MHz D Block licensee and the Public Safety 
Broadband Licensee shall jointly file quarterly reports with the 
Commission. These reports shall include audited financial statements, 
how the specific requirements of public safety are being met, detailed 
information on the areas where broadband service has been deployed, 
which public safety entities are using the broadband network in each 
area of operation, what types of applications are in use in each area 
of operation, and the number of declared emergencies in each area of 
operation.
    (b) The Upper 700 MHz D Block licensee and Public Safety Broadband 
Licensee have joint responsibility to register the base station 
locations with the Commission, providing basic technical information, 
including geographic location.

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
31. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), and 332(c)(7).


0
32. Section 90.5 is amended by revising paragraphs (k), (l), and (m), 
and adding paragraph (n) to read as follows:


Sec.  90.5  Other applicable rule parts.

* * * * *
    (k) Part 27 contains rules relating to miscellaneous wireless 
communications services.
    (l) Part 51 contains rules relating to interconnection.
    (m) Part 68 contains technical standards for connection of private 
land mobile radio equipment to the public switched telephone network.
    (n) Part 101 governs the operation of fixed microwave services.

0
33. Section 90.7 is amended by adding the following definitions in 
alphabetical order to read as follows:


Sec.  90.7  Definitions.

    700 MHz Public/Private Partnership. The public/private partnership 
established for the development and operation of a nationwide, shared 
interoperable wireless broadband network operating on the 758-763 MHz 
and 788-793 MHz bands and the 763-768 MHz and 793-798 MHz bands in 
accordance with the Commission's rules.
* * * * *
    Network Assets Holder. The Network Assets Holder is a Special 
Purpose Bankruptcy Remote Entity that is formed to hold the assets of 
the shared wireless broadband network associated with the 700 MHz 
Public/Private Partnership, in accordance with the terms of the Network 
Sharing Agreement, such other agreements as the Commission may require 
or allow, and the Commission's rules.
    Network Sharing Agreement (NSA). An agreement entered into between 
the winning bidder, the Upper 700 MHz D Block licensee, the Network 
Assets Holder, the Operating Company, the Public Safety Broadband 
Licensee, and any other related entities that the Commission may 
require or allow regarding the shared wireless broadband network 
associated with the 700 MHz Public/Private Partnership that will 
operate on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz 
and 793-798 MHz bands.
* * * * *
    Operating Company. The Operating Company is a Special Purpose 
Bankruptcy Remote Entity that is formed to build and operate the shared 
wireless broadband network associated with the 700 MHz Public/Private 
Partnership, in accordance with the terms of the Network Sharing 
Agreement, such other agreements as the Commission may require or 
allow, and the Commission's rules.
* * * * *
    Public Safety Broadband License. The Public Safety Broadband 
License authorizes public safety broadband services in the 763-768 MHz 
and 793-798 MHz bands on a primary basis.
    Public Safety Broadband Licensee. The licensee of the Public Safety 
Broadband License in the 763-768 MHz and 793-798 MHz bands.
* * * * *
    Shared Wireless Broadband Network. Wireless broadband network 
associated with the 700 MHz Band Public/Private Partnership that 
operates on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz 
and 793-798 MHz bands pursuant to the terms of the Network Sharing 
Agreement, such other agreements as the Commission may require or 
allow, and the Commission's rules.
* * * * *

[[Page 48859]]

    Special Purpose Bankruptcy Remote Entity. A ``special purpose 
entity'' is a legal entity created for a special limited purpose, in 
this context primarily to hold the Upper 700 MHz D Block license or the 
network assets, or to conduct the construction or operation of the 
Shared Wireless Broadband Network associated with the 700 MHz Public/
Private Partnership. A special purpose entity is ``bankruptcy remote'' 
if that entity is unlikely to become insolvent as a result of its own 
activities, is adequately insulated from the consequences of a related 
party's insolvency, and contains certain characteristics which enhance 
the likelihood that it will not become the subject of an insolvency 
proceeding.
* * * * *
    Upper 700 MHz D Block license. The Upper 700 MHz D Block license is 
the nationwide license associated with the 758-763 MHz and 788-793 MHz 
bands.
    Upper 700 MHz D Block licensee. The Special Purpose Bankruptcy 
Remote Entity to which the Upper 700 MHz D Block license must be 
transferred upon execution of the Network Sharing Agreement. References 
herein to the rights and obligations of the Upper 700 MHz D Block 
licensee include the exercise or discharge of such rights or 
obligations, respectively, by related entities as are provided for in 
the NSA or otherwise as authorized by the Commission.
* * * * *

0
34. Section 90.18 is added to read as follows:


Sec.  90.18  Public Safety 700 MHz Nationwide Broadband Network.

    The 763-768/793-798 MHz band is dedicated to a broadband public 
safety communications system with a nationwide level of 
interoperability. A nationwide license for this spectrum is held by a 
single entity, the Public Safety Broadband Licensee, which must enter 
into the 700 MHz Public/Private Partnership with the licensee of the 
adjacent Upper 700 MHz D Block license, pursuant to a Network Sharing 
Agreement and such other agreements as the Commission may require. The 
specific provisions relating to the 700 MHz Public/Private Partnership 
are set forth in subpart AA of this part and subpart N of part 27. The 
Public Safety 700 MHz Nationwide Broadband Network is established in 
the Second Report and Order in PS Docket No. 06-229.

0
35. Section 90.20 is amended by revising the entries for ``470 to 512'' 
and ``763 to 775; ``806 to 817'' by removing the entry for ``764 to 
776''; and by adding entries for ``763 to 775'' and ``793 to 805'' in 
the frequency or band table in paragraph (c)(3) and by revising 
paragraph (d)(77) is to read as follows:


Sec.  90.20  Public Safety Pool.

* * * * *
    (c) * * *
    (3) Frequencies.

                                       Public Safety Pool Frequency Table
----------------------------------------------------------------------------------------------------------------
           Frequency or band               Class of station(s)       Limitations            Coordinator
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
470 to 512............................  Base or mobile...........              68  .............................
763 to 775............................  Base, mobile.............              77  PX
793 to 805............................  Mobile...................              77  PX
806 to 817............................  ......do.................              69  .............................
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    (d) * * *
    (77) Subpart R of this part contains rules for assignment of 
channels in the 763-775 MHz and 793-805 MHz bands.
* * * * *

0
36. Section 90.155 is amended by revising paragraph (a) to read as 
follows:


Sec.  90.155  Time in which station must be placed in operation.

    (a) All stations authorized under this part, except as provided in 
Sec. Sec.  90.528, 90.529, 90.629, 90.631(f), 90.665, 90.685, and 
90.1209, must be placed in operation within twelve (12) months from the 
date of grant or the authorization cancels automatically and must be 
returned to the Commission.
* * * * *

0
37. Section 90.175 is amended by revising the paragraph heading in 
paragraph (e), revising paragraphs (j) (10), through (j)(11) and (12) 
and adding paragraph (j)(18) to read as follows:


Sec.  90.175  Frequency coordination requirements.

* * * * *
    (e) For frequencies between 470-512 MHz, 769-775/799-805 MHz, 806-
824/851-869 MHz and 896-901/935-940 MHz: * * *
* * * * *
    (j) * * *
    (10) Applications for mobile stations operating in the 470-512 MHz 
band, 799-805 MHz band, or above 800 MHz if the frequency pair is 
assigned to a single system on an exclusive basis in the proposed area 
of operation.
    (11) Applications for add-on base stations in multiple licensed 
systems operating in the 470-512 MHz, 769-775 MHz band, or above 800 
MHz if the frequency pair is assigned to a single system on an 
exclusive basis.
    (12) Applications for control stations operating below 470 MHz, 
769-775/799-805 MHz, or above 800 MHz and meeting the requirements of 
Sec.  90.119(b).
* * * * *
    (18) Applications for base, mobile, or control stations in the 763-
768 MHz and 793-798 MHz bands.

0
38. Section 90.176 is amended by revising the section heading and 
revising the heading to paragraph (c) to read as follows:


Sec.  90.176  Coordinator notification requirements on frequencies 
below 512 MHz or at 769-775/799-805 MHz.

* * * * *
    (c) Frequencies in the 769-775/799-805 MHz band. * * *
* * * * *

0
39. Section 90.179 is amended by revising paragraph (g) to read as 
follows:


Sec.  90.179  Shared use of radio stations.

* * * * *
    (g) Notwithstanding paragraph (a) of this section, licensees 
authorized to operate radio systems on Public Safety Pool frequencies 
designated in Sec.  90.20 may share their facilities with Federal 
Government entities on a non-profit, cost-shared basis. Such a sharing 
arrangement is subject to the provisions of paragraphs (b), (d), and 
(e) of this section, and Sec.  2.103(c) concerning approval of the 
Public Safety Broadband Licensee for Federal operations in the 763-768 
MHz and 793-798 MHz bands. State governments authorized to operate

[[Page 48860]]

radio systems under Sec.  90.529 may share the use of their systems 
(for public safety services not made commercially available to the 
public) with any entity that would be eligible for licensing under 
Sec.  90.523 and Federal Government entities.
* * * * *

0
40. Section 90.205 is amended by redesignating paragraphs (j) through 
(r) as paragraphs (k) through (s) by adding new paragraph (j), and 
revising newly redesignated paragraph (k) to read as follows:


Sec.  90.205  Power and antenna height limits.

* * * * *
    (j) 763-775 MHz and 793-805 MHz. Power and height limitations are 
specified in Sec. Sec.  90.541 and 90.542.
    (k) 806-824 MHz, 851-869 MHz, 896-901 MHz and 935-940 MHz. Power 
and height limitations are specified in Sec.  90.635
* * * * *

0
41. Part 90 is amended by revising the heading to subpart R as follows:

Subpart R--Regulations Governing the Licensing and Use of 
Frequencies in the 763-775 and 793-805 MHz Bands

0
42. Section 90.521 is amended by revising the first sentence to read as 
follows:


Sec.  90.521  Scope.

    This subpart sets forth the regulations governing the licensing and 
operations of all systems operating in the 763-775 MHz and 793-805 MHz 
frequency bands. * * *
* * * * *

0
43. Section 90.523 is amended by revising the introductory text and 
adding paragraph (e) to read as follows:


Sec.  90.523  Eligibility.

    This section implements the definition of public safety services 
contained in 47 U.S.C. 337(f)(1). The following are eligible to hold 
Commission authorizations for systems operating in the 763-775 MHz and 
793-805 MHz frequency bands:
* * * * *
    (e) The minimum eligibility requirements for the Public Safety 
Broadband Licensee in the 763-768 MHz and 793-798 MHz bands are as 
follows:
    (1) No commercial interest may be held in the Public Safety 
Broadband Licensee, and no commercial interest may participate in the 
management of the Public Safety Broadband Licensee;
    (2) The Public Safety Broadband Licensee must be a non-profit 
organization;
    (3) The Public Safety Broadband Licensee must be as broadly 
representative of the public safety radio user community as possible; 
and
    (4) The Public Safety Broadband Licensee must be in receipt of 
written certifications from no less than ten geographically diverse 
state and local governmental entities (the authorizing entities), with 
at least one certification from a state government entity and one from 
a local government entity, verifying that--
    (i) They have authorized the Public Safety Broadband Licensee to 
use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing 
entities with public safety services; and
    (ii) The authorizing entities' primary mission is the provision of 
public safety services.

0
44. Revise Sec.  90.525 to read as follows:


Sec.  90.525  Administration of interoperability channels.

    (a) States are responsible for administration of the 
Interoperability channels in the 769-775 MHz and 799-805 MHz frequency 
bands. Base and control stations must be licensed individually. A 
public safety entity meeting the requirements of Sec.  90.523 may 
operate mobile or portable units on the Interoperability channels in 
the 769-775 MHz and 799-805 MHz frequency bands without a specific 
authorization from the Commission provided it holds a part 90 license. 
All persons operating mobile or portable units under this authority are 
responsible for compliance with part 90 of these rules and other 
applicable federal laws.
    (b) License applications for Interoperability channels in the 769-
775 MHz and 799-805 MHz frequency bands must be approved by a state-
level agency or organization responsible for administering state 
emergency communications. States may hold the licenses for 
Interoperability channels or approve other qualified entities to hold 
such licenses. States may delegate the approval process for 
interoperability channels to another entity, such as regional planning 
committees.

0
45. Add Sec.  90.528 to subpart R to read as follows:


Sec.  90.528  Public Safety Broadband License.

    (a) The 763-768/793-798 MHz bands are allocated on a nationwide 
basis for public safety broadband operations and licensed to a single 
Public Safety Broadband Licensee. The 768-769/798-799 MHz bands also 
are licensed to the Public Safety Broadband Licensees as guard bands. 
The license area of the Public Safety Broadband License consists of the 
contiguous 48 states, Alaska, Hawaii, Gulf of Mexico, and the U.S. 
territories.
    (b) The Public Safety Broadband License authorizes construction and 
operation of base stations anywhere within the area authorized by the 
license, except as follows:
    (1) A station is required to be individually licensed if:
    (i) International agreements require coordination;
    (ii) Submission of an environmental assessment is required under 
Sec.  1.1307 of this chapter; or
    (iii) The station would affect areas identified in Sec.  1.924 of 
this chapter.
    (2) Any antenna structure that requires notification to the Federal 
Aviation Administration (FAA) must be registered with the Commission 
prior to construction under Sec.  17.4 of this chapter.
    (c) Mobile and portable devices may operate without individual 
license under the authority of the Public Safety Broadband License.
    (d) The term of the Public Safety Broadband License shall not 
exceed ten years from February 17, 2009. The Public Safety Broadband 
Licensee is entitled to a renewal expectancy barring violations of law, 
rules or policy warranting denial of renewal.
    (e) The Public Safety Broadband License may not be partitioned or 
disaggregated.
    (f) The Public Safety Broadband Licensee may not voluntarily assign 
or transfer control of the Public Safety Broadband License.
    (g) Quarterly reporting of financial and operational information. 
The Public Safety Broadband Licensee shall submit, on a quarterly 
basis, a full financial accounting to the Commission, in a format to be 
set forth in the Network Sharing Agreement, and as approved by the 
Commission. Such quarterly financial reports shall be filed with the 
Commission, with a copy to the Chiefs of the Wireless 
Telecommunications and the Public Safety and Homeland Security Bureaus.

0
46. Amend Sec.  90.531 as follows:
0
a. Revise the introductory text to the section.
0
b. Revise paragraph (a), (b) introductory text, and the table that 
follows.
0
c. Remove and reserve paragraphs (c) and (d)(2).
0
d. Revise paragraph (e).
0
e. Add paragraphs (f) and (g).


Sec.  90.531  Band plan.

    This section sets forth the band plan for the 763-775 MHz and 793-
805 MHz public safety bands.

[[Page 48861]]

    (a) Base and mobile use. The 763-775 MHz band may be used for base, 
mobile or fixed (repeater) transmissions. The 793-805 MHz band may be 
used only for mobile or fixed (control) transmissions.
    (b) Narrowband segments. There are two band segments that are 
designated for use with narrowband emissions. Each of these narrowband 
segments is divided into 960 channels having a channel size of 6.25 kHz 
as follows:

------------------------------------------------------------------------
                     Frequency range                       Channel Nos.
------------------------------------------------------------------------
769-775 MHz.............................................           1-960
799-805 MHz.............................................        961-1920
------------------------------------------------------------------------

* * * * *
    (f) Internal guard band. The internal guard band (768-769/798-799 
MHz) is reserved.
    (g) Broadband. The 763-768 MHz and 793-798 MHz bands are allocated 
for broadband communications pursuant to the Public Safety Broadband 
License.

0
47. Section 90.533 is amended by revising the introductory text and 
paragraphs (a) and (c) to read as follows:


Sec.  90.533  Transmitting sites near the U.S./Canada or U.S./Mexico 
border.

    This section applies to each license to operate one or more public 
safety transmitters in the 763-775 MHz and 793-805 MHz bands, at a 
location or locations North of Line A (see Sec.  90.7) or within 120 
kilometers (75 miles) of the U.S.-Mexico border, until such time as 
agreements between the government of the United States and the 
government of Canada or the government of the United States and the 
government of Mexico, as applicable, become effective governing border 
area non-broadcast use of these bands. Public safety licenses are 
granted subject to the following conditions:
    (a) Public safety transmitters operating in the 763-775 MHz and 
793-805 MHz bands must conform to the limitations on interference to 
Canadian television stations contained in agreement(s) between the 
United States and Canada for use of television channels in the border 
area.
* * * * *
    (c) Conditions may be added during the term of the license, if 
required by the terms of international agreements between the 
government of the United States and the government of Canada or the 
government of the United States and the government of Mexico, as 
applicable, regarding non-broadcast use of the 763-775 MHz and 793-805 
MHz bands.

0
48. Section 90.535 is amended by revising the introductory text and 
paragraph (a) to read as follows:


Sec.  90.535  Modulation and spectrum usage efficiency requirements.

    Transmitters designed to operate in 769-775 MHz and 799-805 MHz 
frequency bands must meet the following modulation standards:
    (a) All transmitters in the 769-775 MHz and 799-805 MHz frequency 
bands must use digital modulation. Mobile and portable transmitters may 
have analog modulation capability only as a secondary mode in addition 
to its primary digital mode. Mobile and portable transmitters that only 
operate on the low power channels designated in Sec. Sec.  
90.531(b)(3), 90.531(b)(4), are exempt from this digital modulation 
requirement.
* * * * *

0
49. Section 90.537 is amended by revising paragraph (a) to read as 
follows:


Sec.  90.537   Trunking requirement.

    (a) General use channels. All systems using six or more narrowband 
channels in the 769-775 MHz and 799-805 MHz frequency bands must be 
trunked systems, except for those described in paragraph (b) of this 
section.
* * * * *

0
50. Section 90.539 is amended by revising the introductory text to read 
as follows:


Sec.  90.539   Frequency stability.

    Transmitters designed to operate in 769-775 MHz and 799-805 MHz 
frequency bands must meet the frequency stability requirements in this 
section.
* * * * *

0
51. Section 90.541 is amended by revising the introductory text to read 
as follows:


Sec.  90.541   Transmitting power limits.

    The transmitting power of base, mobile, portable and control 
stations operating in the 769-775 MHz and 799-805 MHz frequency bands 
must not exceed the maximum limits in this section, and must also 
comply with any applicable effective radiated power limits in Sec.  
90.545.
* * * * *

0
52. Add Sec.  90.542 to subpart R to read as follows:


Sec.  90.542   Broadband transmitting power limits.

    (a) The following power limits apply to the 763-768/793-798 MHz 
band:
    (1) Fixed and base stations transmitting a signal in the 763-768 
MHz band with an emission bandwidth of 1 MHz or less must not exceed an 
ERP of 1000 watts and an antenna height of 305 m HAAT, except that 
antenna heights greater than 305 m HAAT are permitted if power levels 
are reduced below 1000 watts ERP in accordance with Table 1 of this 
section.
    (2) Fixed and base stations located in a county with population 
density of 100 or fewer persons per square mile, based upon the most 
recently available population statistics from the Bureau of the Census, 
and transmitting a signal in the 763-768 MHz band with an emission 
bandwidth of 1 MHz or less must not exceed an ERP of 2000 watts and an 
antenna height of 305 m HAAT, except that antenna heights greater than 
305 m HAAT are permitted if power levels are reduced below 2000 watts 
ERP in accordance with Table 2 of this section.
    (3) Fixed and base stations transmitting a signal in the 763-768 
MHz band with an emission bandwidth greater than 1 MHz must not exceed 
an ERP of 1000 watts/MHz and an antenna height of 305 m HAAT, except 
that antenna heights greater than 305 m HAAT are permitted if power 
levels are reduced below 1000 watts/MHz ERP accordance with Table 3 of 
this section.
    (4) Fixed and base stations located in a county with population 
density of 100 or fewer persons per square mile, based upon the most 
recently available population statistics from the Bureau of the Census, 
and transmitting a signal in the 763-768 MHz band with an emission 
bandwidth greater than 1 MHz must not exceed an ERP of 2000 watts/MHz 
and an antenna height of 305 m HAAT, except that antenna heights 
greater than 305 m HAAT are permitted if power levels are reduced below 
2000 watts/MHz ERP in accordance with Table 4 of this section.
    (5) Licensees of fixed or base stations transmitting a signal in 
the 763-768 MHz band at an ERP greater than 1000 watts must comply with 
the provisions set forth in paragraph (b) of this section.
    (6) Control stations and mobile stations transmitting in the 763-
768 MHz band and the 793-798 MHz band are limited to 30 watts ERP.
    (7) Portable stations (hand-held devices) transmitting in the 763-
768 MHz band and the 793-798 MHz band are limited to 3 watts ERP.
    (8) For transmissions in the 763-768 MHz and 793-798 MHz bands, 
licensees may employ equipment operating in compliance with either of 
the following measurement techniques:
    (i) The maximum composite transmit power shall be measured over any 
interval of continuous transmission using instrumentation calibrated in 
terms of RMS-equivalent voltage. The measurement results shall be 
properly adjusted for any instrument limitations,

[[Page 48862]]

such as detector response times, limited resolution bandwidth 
capability when compared to the emission bandwidth, etc., so as to 
obtain a true maximum composite measurement for the emission in 
question over the full bandwidth of the channel.
    (ii) A Commission-approved average power technique.

 Table 1 to Sec.   90.542(a).--Permissible Power and Antenna Heights for
  Base and Fixed Stations in the 763-768 MHz Band Transmitting a Signal
               With an Emission Bandwidth of 1 MHz or Less
------------------------------------------------------------------------
                                                             Effective
         Antenna height (AAT) in meters  (feet)           radiated power
                                                           (ERP) (watts)
------------------------------------------------------------------------
Above 1372 (4500).......................................              65
Above 1220 (4000) To 1372 (4500)........................              70
Above 1067 (3500) To 1220 (4000)........................              75
Above 915 (3000) To 1067 (3500).........................             100
Above 763 (2500) To 915 (3000)..........................             140
Above 610 (2000) To 763 (2500)..........................             200
Above 458 (1500) To 610 (2000)..........................             350
Above 305 (1000) To 458 (1500)..........................             600
Up to 305 (1000)........................................            1000
------------------------------------------------------------------------


 Table 2 to Sec.   90.542(a).--Permissible Power and Antenna Heights for
  Base and Fixed Stations in the 763-768 MHz Band Transmitting a Signal
               With an Emission Bandwidth of 1 MHz or Less
------------------------------------------------------------------------
                                                             Effective
          Antenna height (AAT) in meters (feet)           radiated power
                                                           (ERP) (watts)
------------------------------------------------------------------------
Above 1372 (4500).......................................             130
Above 1220 (4000) To 1372 (4500)........................             140
Above 1067 (3500) To 1220 (4000)........................             150
Above 915 (3000) To 1067 (3500).........................             200
Above 763 (2500) To 915 (3000)..........................             280
Above 610 (2000) To 763 (2500)..........................             400
Above 458 (1500) To 610 (2000)..........................             700
Above 305 (1000) To 458 (1500)..........................            1200
Up to 305 (1000)........................................            2000
------------------------------------------------------------------------


 Table 3 to Sec.   90.542(a).--Permissible Power and Antenna Heights for
  Base and Fixed Stations in the 763-768 MHz Band Transmitting a Signal
              With an Emission Bandwidth Greater Than 1 MHz
------------------------------------------------------------------------
                                                             Effective
                                                          radiated power
          Antenna height (AAT) in meters (feet)            (ERP) per MHz
                                                            (watts/MHz)
------------------------------------------------------------------------
Above 1372 (4500).......................................              65
Above 1220 (4000) To 1372 (4500)........................              70
Above 1067 (3500) To 1220 (4000)........................              75
Above 915 (3000) To 1067 (3500).........................             100
Above 763 (2500) To 915 (3000)..........................             140
Above 610 (2000) To 763 (2500)..........................             200
Above 458 (1500) To 610 (2000)..........................             350
Above 305 (1000) To 458 (1500)..........................             600
Up to 305 (1000)........................................            1000
------------------------------------------------------------------------


 Table 4 to Sec.   90.542(a).--Permissible Power and Antenna Heights for
  Base and Fixed Stations in the 763-768 MHz Band Transmitting a Signal
              With an Emission Bandwidth Greater Than 1 MHz
------------------------------------------------------------------------
                                                             Effective
                                                          radiated power
          Antenna height (AAT) in meters (feet)            (ERP) per MHz
                                                            (watts/MHz)
------------------------------------------------------------------------
Above 1372 (4500).......................................             130
Above 1220 (4000) To 1372 (4500)........................             140
Above 1067 (3500) To 1220 (4000)........................             150
Above 915 (3000) To 1067 (3500).........................             200
Above 763 (2500) To 915 (3000)..........................             280
Above 610 (2000) To 763 (2500)..........................             400
Above 458 (1500) To 610 (2000)..........................             700
Above 305 (1000) To 458 (1500)..........................            1200
Up to 305 (1000)........................................            2000
------------------------------------------------------------------------

    (b) For base and fixed stations operating in the 763-768 MHz band 
in accordance with the provisions of paragraph (a)(5) of this section, 
the power flux density that would be produced by such stations through 
a combination of antenna height and vertical gain pattern must not 
exceed 3000 microwatts per square meter on the ground over the area 
extending to 1 km from the base of the antenna mounting structure.

0
53. Amended Sec.  90.543 as follows:
0
a. Revise the introductory text.
0
b. Amend paragraph (a) by removing the tables titled ``150 kHz Mobile 
Transmitter ACP Requirements'' and ``150 kHz Base Transmitter ACP 
Requirements''.
0
c. Revise paragraph (b)(1).
0
d. Redesignate paragraphs (e) and (f) as paragraphs (f) and (g).
0
e. Add a new paragraph (e).
0
f. Revise newly redesignated paragraphs (f) and (g).


Sec.  90.543   Emission limitations.

    Transmitters designed to operate in 769-775 MHz and 799-805 MHz 
frequency bands must meet the emission limitations in paragraphs (a) 
through (d) of this section. Transmitters operating in 763-768 MHz and 
793-798 MHz bands must meet the emission limitations in (e) of this 
section.
* * * * *
    (b) * * *
    (1) Setting reference level. Set transmitter to maximum output 
power. Using a spectrum analyzer capable of ACP measurements, set the 
measurement bandwidth to the channel size. For example, for a 6.25 kHz 
transmitter set the measurement bandwidth to 6.25 kHz. Set the 
frequency offset of the measurement bandwidth to zero and adjust the 
center frequency of the instrument to the assigned center frequency to 
measure the average power level of the transmitter. Record this power 
level in dBm as the ``reference power level.''
* * * * *
    (e) For operations in the 763-768 MHz and the 793-798 MHz bands, 
the power of any emission outside the licensee's frequency band(s) of 
operation shall be attenuated below the transmitter power (P) within 
the licensed band(s) of operation, measured in watts, in accordance 
with the following:
    (1) On all frequencies between 769-775 MHz and 799-805 MHz, by a 
factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment, for 
base and fixed stations.
    (2) On all frequencies between 769-775 MHz and 799-805 MHz, by a 
factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for 
mobile and portable stations.
    (3) Compliance with the provisions of paragraphs (e)(1) and (2) of 
this section is based on the use of measurement instrumentation such 
that the reading taken with any resolution bandwidth setting should be 
adjusted to indicate spectral energy in a 6.25 kHz segment.

[[Page 48863]]

    (f) For operations in the 763-775 MHz and 793-805 MHz bands, all 
emissions including harmonics in the band 1559-1610 MHz shall be 
limited to -70 dBW/MHz equivalent isotropically radiated power (EIRP) 
for wideband signals, and -80 dBW EIRP for discrete emissions of less 
than 700 Hz bandwidth. For the purpose of equipment authorization, a 
transmitter shall be tested with an antenna that is representative of 
the type that will be used with the equipment in normal operation.
    (g) When an emission outside of the authorized bandwidth causes 
harmful interference, the Commission may, at its discretion, require 
greater attenuation than specified in this section.

0
54. Section 90.547 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  90.547   Narrowband interoperability channel capability 
requirement.

    (a) Except as noted in this section, mobile and portable 
transmitters operating on narrowband channels in the 769-775 MHz and 
799-805 MHz frequency bands must be capable of operating on all of the 
designated nationwide narrowband Interoperability channels pursuant to 
the standards specified in this part.
* * * * *

0
55. Section 90.548 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  90.548   Interoperability technical standards.

    (a) Transmitters operating on those narrowband channels in the 769-
775 and 799-805 MHz band designated for interoperability (see Sec.  
90.531) shall conform to the following technical standards:
* * * * *

0
56. Section 90.551 is revised to read as follows:


Sec.  90.551   Construction requirements.

    Each station authorized under this subpart to operate in the 769-
775 MHz and 799-805 MHz frequency bands must be constructed and placed 
into operation within 12 months from the date of grant of the 
authorization, except for State channels. However, licensees may 
request a longer construction period, up to but not exceeding 5 years, 
pursuant to Sec.  90.155(b). State channels are subject to the build-
out requirements in Sec.  90.529.

0
57. Add subpart AA to part 90 as follows:

Subpart AA--700 MHz Public/Private Partnership

Sec.
90.1401 Purpose and scope.
90.1403 Public safety broadband license conditions.
90.1405 Shared wireless broadband network.
90.1407 Spectrum use in the network.
90.1408 Organization and structure of the 700 MHz public/private 
partnership.
90.1410 Network sharing agreement.
90.1415 Establishment, execution, and application of the network 
sharing agreement.
90.1420 Failure to comply with the NSA or the Commission's rules.
90.1425 Resolution of disputes after grant of the upper 700 MHz D 
block license.
90.1430 Local public safety build-out and operation.
90.1432 Conditions for waiver to allow limited and temporary 
wideband operation in the 700 MHz public safety spectrum.
90.1435 Prohibition on discontinuance of public safety operations.
90.1440 Reporting obligations.


Sec.  90.1401   Purpose and scope.

    The purpose of this subpart, in conjunction with subpart N of part 
27, is to establish rules and procedures relating to the 700 MHz 
Public/Private Partnership entered between the winning bidder for the 
Upper 700 MHz D Block license, the Upper 700 MHz D Block licensee, the 
Network Assets Holder, the Operating Company, the Public Safety 
Broadband Licensee, and other related entities as the Commission may 
require or allow. Pursuant to this partnership, the Upper 700 MHz D 
Block licensee and the Operating Company will be responsible for 
constructing and operating a nationwide, shared interoperable wireless 
broadband network used to provide a commercial service and a broadband 
network service for public safety entities. The shared network assets 
will be held by the Network Assets Holder, and the Shared Wireless 
Broadband Network will operate on both the commercial spectrum licensed 
to the Upper 700 MHz D Block licensee and the public safety broadband 
spectrum licensed to the Public Safety Broadband Licensee. This subpart 
of the part 90 rules sets forth specific provisions relating to the 
Public Safety Broadband License and the Public Safety Broadband 
Licensee with respect to the 700 MHz Public/Private Partnership. 
Subpart N of the part 27 rules sets forth related provisions applicable 
to the Upper 700 MHz D Block license, the Upper 700 MHz D Block 
licensee and other related entities as the Commission may require or 
allow, with respect to the 700 MHz Public/Private Partnership.


Sec.  90.1403  Public safety broadband license conditions.

    (a) The Public Safety Broadband Licensee shall comply with all of 
the applicable requirements set forth in this subpart and shall comply 
with the terms of the Network Sharing Agreement and such other 
agreements as the Commission may require or allow.
    (b) The responsibilities of the Public Safety Broadband Licensee 
shall include the following:
    (1) Negotiation of the NSA and such other agreements as the 
Commission may require or allow with the winning bidder at auction for 
the Upper 700 MHz D Block license, pursuant to the requirements set 
forth in Sec.  90.1410.
    (2) General administration of access to the 763-768 MHz and 793-798 
MHz bands by individual public safety entities, including assessment of 
usage fees and related frequency coordination duties.
    (3) Regular interaction with and promotion of the needs of the 
public safety entities with respect to access and use of the 763-768 
MHz and 793-798 MHz bands, within the technical and operational 
confines of the NSA.
    (4) Dealings with equipment vendors on its own or in partnership 
with the Upper 700 MHz D Block licensee, as appropriate, to achieve and 
pass on the benefits of economies of scale concerning network and 
subscriber equipment and applications.
    (5) Sole authority, which cannot be waived in the NSA, to approve, 
in consultation with the Upper 700 MHz D Block licensee, equipment and 
applications for use by public safety entities on the public safety 
broadband network. State or local entities may seek review of a 
decision by the Public Safety Broadband Licensee not to permit certain 
equipment or applications, or particular specifications for equipment 
or applications, from the Chief, Public Safety and Homeland Security 
Bureau.
    (6) Coordination of stations operating on 700 MHz public safety 
broadband spectrum with 700 MHz public safety narrowband stations, 
including management of the internal public safety guard band.
    (7) Oversight and implementation of the relocation of narrowband 
public safety operations in television channels 63 and 68, and the 
upper one megahertz of channels 64 and 69.
    (8) Exercise of sole discretion, pursuant to Sec.  2.103 of this 
chapter, whether to permit Federal public safety agency use of the 
public safety broadband spectrum, with any such use

[[Page 48864]]

subject to the terms and conditions of the NSA.
    (9) Review of requests for waiver submitted by public safety 
entities to conduct wideband operations pursuant to the procedures and 
restrictions in connection with such waivers as described in Sec.  
90.1432.


Sec.  90.1405  Shared wireless broadband network.

    The Shared Wireless Broadband Network developed by the 700 MHz 
Public/Private Partnership must be designed to meet requirements 
associated with a nationwide, public safety broadband network. At a 
minimum, the network must incorporate the following features:
    (a) Design for operation over a broadband technology platform that 
provides mobile voice, video, and data capability that is seamlessly 
interoperable across public safety local and state agencies, 
jurisdictions, and geographic areas, and which includes current and 
evolving state-of-the-art technologies reasonably made available in the 
commercial marketplace with features beneficial to the public safety 
community.
    (b) Sufficient signal coverage to ensure reliable operation 
throughout the service area consistent with typical public safety 
communications systems.
    (c) Sufficient robustness to meet the reliability and performance 
requirements of public safety.
    (d) Sufficient capacity to meet the needs of public safety.
    (e) Security and encryption consistent with state-of-the-art 
technologies.
    (f) A mechanism to automatically prioritize public safety 
communications over commercial uses on a real-time basis consistent 
with the requirements of Sec.  90.1407(c).
    (g) Operational capabilities consistent with features and 
requirements that are typical of current and evolving state-of-the-art 
public safety systems.
    (h) Operational control of the network by the Public Safety 
Broadband Licensee to the extent necessary to ensure that public safety 
requirements are met.


Sec.  90.1407  Spectrum use in the network.

    (a) Spectrum use. The Shared Wireless Broadband Network will 
operate using spectrum associated with the Upper 700 MHz D Block 
license in the 758-763 MHz and 788-793 MHz bands and the Public Safety 
Broadband License in the adjacent 763-768 MHz and 793-798 MHz bands.
    (b) Access to spectrum in the 763-768 MHz and 793-798 MHz bands. 
The Public Safety Broadband Licensee which holds the Public Safety 
Broadband License, pursuant to part 90 rules, must lease the spectrum 
rights associated with this license, pursuant to a spectrum manager 
leasing arrangement set forth in part 1 subpart X, to the Upper 700 MHz 
D Block licensee and the Operating Company for the entire remaining 
term of the Public Safety Broadband License to effectuate the 700 MHz 
Public/Private Partnership. The Upper 700 MHz D Block licensee and the 
Operating Company, are the only entities that are eligible to lease the 
spectrum usage rights associated with the Public Safety Broadband 
License to operate on the 763-768 and 793-798 MHz bands. If the Upper 
700 MHz D Block license is cancelled, this spectrum leasing arrangement 
will automatically terminate.
    (c) Commercial operations in the 763-768 MHz and 793-798 MHz bands. 
Commercial operations in the 763-768 MHz and 793-798 MHz bands through 
the spectrum manager leasing arrangement shall not cause harmful 
interference to primary users (i.e., public safety users) and cannot 
claim protection from harmful interference from the primary public 
safety operations in the 763-768 MHz and 793-798 MHz bands. The network 
providing commercial operations in the 763-768 MHz and 793-798 MHz 
bands through the spectrum manager leasing arrangement must be designed 
to automatically assign priority to public safety users, to the 
exclusion and/or immediate preemption of any commercial use on a 
dynamic, real-time priority basis, and to guarantee that public safety 
users suffer no harmful interference or interruption or degradation of 
service due to commercial operations in the 763-768 MHz and 793-798 MHz 
bands.


Sec.  90.1408  Organization and structure of the 700 MHz public/private 
partnership.

    (a) The Upper 700 MHz D Block licensee and the Network Assets 
Holder and such other related entities as the Commission may require or 
allow shall be formed by the winning bidder of the Upper 700 MHz D 
Block license. The Upper 700 MHz D Block licensee, the Network Assets 
Holder, and related entities as the Commission may require or allow 
must be Special Purpose Bankruptcy Remote Entities formed to hold the 
license, to hold the shared network assets, or for such other purpose 
as the Commission may require or allow. The winning bidder of the Upper 
700 MHz D Block license shall also form the Operating Company, which 
must also be a Special Purpose Bankruptcy Remote Entity. Upon issuance 
of the Upper 700 MHz D Block license, the winning bidder will assign 
all of its rights and obligations under the NSA to the Upper 700 MHz D 
Block licensee, Network Assets Holder, the Operating Company, and any 
other related entities that the Commission may require or allow.
    (b) The Upper 700 MHz D Block licensee and other related entities 
as the Commission may require or allow shall have the obligation to 
build out the Shared Wireless Broadband Network, as provided for in the 
NSA or otherwise as authorized by the Commission.


Sec.  90.1410  Network sharing agreement.

    The relationship between the Upper 700 MHz D Block licensee, the 
Public Safety Broadband Licensee, and related entities as the 
Commission may require or allow will be governed by the Network Sharing 
Agreement (NSA) and such other separate agreements as the Commission 
may require or allow that are negotiated and entered into between the 
parties. The NSA must, at a minimum, include the following terms:
    (a) All of the substantive rights and obligations of the parties 
relating to the NSA, as established by the Commission concerning the 
700 MHz Public/Private Partnership.
    (b) Network specifications that comply with Sec.  27.1305 of this 
chapter.
    (c) The definition of ``emergency'' for purposes of emergency 
priority access.
    (d) All service fees to be imposed for services to public safety, 
including fees for normal network service and fees for priority access 
to the D Block spectrum in an emergency.
    (e) A detailed build-out schedule consistent with Sec.  27.1327 of 
this chapter, including coverage of major highways and interstates, as 
well as incorporated communities with a population in excess of 3,000.
    (f) The right of the Public Safety Broadband Licensee to determine 
and approve the specifications of public safety equipment used on the 
network and the right to purchase its own subscriber equipment from any 
vendor it chooses, to the extent such specifications and equipment are 
consistent with reasonable network control requirements established in 
the NSA.
    (g) The Upper 700 MHz D Block licensee must offer at least one 
handset suitable for public safety use that includes a seamlessly 
integrated satellite solution pursuant to the terms, conditions, and 
timeframes set forth in the NSA.
    (h) Any major modification of the terms of the NSA, related 
agreements or documents, or such other agreements as

[[Page 48865]]

the Commission may require or allow must be submitted to the Commission 
for prior approval. All other modifications must be submitted to the 
Chiefs of the Wireless Telecommunications Bureau and the Public Safety 
and Homeland Security Bureau for prior approval.
    (i) The NSA shall require, in a separate agreement, the granting of 
an irrevocable and assignable right of first refusal to purchase the 
network assets if and whenever such assets are otherwise to be sold and 
an irrevocable and assignable option in favor of the Public Safety 
Broadband Licensee to purchase the network and all network assets if 
and whenever the Upper 700 MHz D Block license is cancelled or 
terminated, by reason of default or for any other reason, for a 
consideration equivalent to the fair market value of the tangible and 
intangible assets sold. This right and option shall be senior to, and 
have priority over, any other right, claim, or interest in or to the 
network or the network assets. The NSA shall also include a fair market 
valuation methodology to determine the fair market value of the shared 
wireless broadband network assets.
    (j) The NSA must have a term, not to exceed 10 years from February 
17, 2009, that coincides with the terms of the Upper 700 MHz D Block 
license and the Public Safety Broadband License.


Sec.  90.1415  Establishment, execution, and application of the network 
sharing agreement.

    The following requirements and processes relate to the 
establishment, execution, and application of the NSA:
    (a) Approval of NSA as pre-condition for granting the Upper 700 MHz 
D Block License. The Public Safety Broadband Licensee must negotiate an 
NSA and such other agreements as the Commission may require or allow 
with the winning bidder for the Upper 700 MHz D Block license. The NSA 
and related agreements or documents must be approved by the Commission 
and then executed by the relevant parties. Parties to the NSA must also 
include the Upper 700 MHz D Block licensee, the Network Assets Holder, 
and the Operating Company, as these entities are defined in Sec.  90.7.
    (b) Requirement of negotiation. Negotiation of an NSA between the 
winning bidder for the Upper 700 MHz D Block license and the Public 
Safety Broadband Licensee must commence by the date the winning bidder 
files its long form application or the date on which the Commission 
designates the Public Safety Broadband Licensee, whichever is later, 
and must conclude within six months of that date. Parties to this 
negotiation are required to negotiate in good faith. Two members of the 
Commission staff, one from the Wireless Telecommunications Bureau and 
one from the Public Safety and Homeland Security Bureau, shall be 
present at all stages of the negotiation as neutral observers.
    (c) Reporting requirements. Beginning three months from the 
triggering of the six-month negotiation period, the Public Safety 
Broadband Licensee and the winning bidder for the Upper 700 MHz D Block 
license must jointly provide detailed reports, on a monthly basis and 
subject to a request for confidential treatment, on the progress of the 
negotiations throughout the remainder of the negotiations. These 
reports must include descriptions of all material issues that the 
parties have yet to resolve.
    (d) Submission of final agreement. As soon as the parties have 
reached an agreement on all the terms of the NSA, related agreements or 
documents, and such other agreements as the Commission may require or 
allow but not later than five business days after the six-month period 
for negotiation has expired, they must submit the NSA together with all 
agreements and related documents referenced in the NSA, for review and 
approval by the full Commission. The Commission will act on the NSA 
within 60 days of receipt. The Commission may approve the NSA in its 
entirety, approve with modifications, or require the parties to address 
additional terms or re-draft existing terms within a specified 
timeframe. After the NSA is approved, the parties must execute the NSA 
and such other agreements as the Commission may require or allow and 
submit executed copies to the Commission within 10 business days of 
approval.
    (e) Submission of disputed issues. If the parties have not reached 
agreement on all terms of the NSA and related agreements by the end of 
the six-month period, they must notify the Commission not later than 
five business days after the expiration of the six-month period of the 
terms on which they have agreed, the nature of the remaining issues, 
each party's position on each issue, whether additional negotiation is 
likely to produce an agreement, and, if so, a proposed deadline for 
reaching agreement on the NSA. Authority is delegated jointly to the 
Chiefs of the Wireless Telecommunications Bureau and the Public Safety 
and Homeland Security Bureau to resolve any remaining disputes.
    (f) Resolution of disputes. Actions to resolve disputes may 
include, but are not limited to:
    (1) Granting additional time for negotiation;
    (2) Issuing a decision on the disputed issues and requiring the 
submission of a draft agreement consistent with the decision;
    (3) Directing the parties to further brief the remaining issues in 
full for immediate Commission decision; and/or
    (4) Immediate denial of the long-form application filed by the 
winning bidder for the Upper 700 MHz D Block license.
    (g) Default by winning bidder for Upper 700 MHz D Block license. If 
the winning bidder for the Upper 700 MHz D Block fails to comply with 
negotiation or dispute resolution requirements or fails to execute a 
Commission-approved NSA, its long form application will be denied. If 
the long form application of the winning bidder of the Upper 700 MHz D 
Block license is denied for any reason, including as a consequence of 
an action taken pursuant to paragraphs (e) and (f) of this section, it 
will be deemed to have defaulted under Sec.  1.2109(c) of this chapter 
and will be liable for the default payment specified in Sec.  1.2104(g) 
of this chapter.


Sec.  90.1420  Failure to comply with the NSA or the Commission's 
rules.

    (a) Failure to comply with the Commission's rules or the terms of 
the NSA may warrant cancelling the Public Safety Broadband License. The 
potential remedies also include, but are not limited to, assigning the 
license to another entity, directing the Public Safety Broadband 
Licensee to transfer the assignable right to purchase the assets at 
fair market value, ordering specific performance, or ordering removal 
and replacement of individual officers, directors or member 
organizations of the Public Safety Broadband Licensee.
    (b) If the Commission cancels or terminates the Upper 700 MHz D 
Block license, a fair market valuation of the shared wireless broadband 
network assets shall be performed immediately, pursuant to the fair 
market valuation methodology set forth in the NSA. In the event that 
the Upper 700 MHz D Block license is awarded to a new entity, the 
Public Safety Broadband Licensee's option to purchase the network and 
all network assets if and whenever the Upper 700 MHz D Block license is 
cancelled or terminated and its right of first refusal to purchase the 
network assets if and whenever such assets are otherwise to be sold 
shall be assigned to the new Upper 700 MHz D Block

[[Page 48866]]

licensee and the new Network Assets Holder.


Sec.  90.1425  Resolution of disputes after grant of the upper 700 MHz 
D block license.

    (a) The Public Safety Broadband Licensee, the Operating Company, 
the Network Assets Holder, and the Upper 700 MHz D Block licensee may 
at any time bring a complaint to the Commission based on a claim that 
another party to the NSA has deviated from the terms of the NSA, or a 
petition for a declaratory ruling to resolve the proper interpretation 
of an NSA term or provision. The Commission also may at any time, on 
its own motion, determine to address any material breach or interpret 
any NSA term or provision.
    (b) The Commission shall have primary responsibility and 
jurisdiction for adjudicating disputes that arise following execution 
of the NSA. The Commission may, however, require the parties to first 
seek a settlement to the dispute or authorize the parties to resolve 
the dispute through litigation or other means. Breach of license terms, 
the NSA, or the Commission's rules may result in cancellation of the 
Public Safety Broadband License, the Upper 700 MHz D Block license, or 
both.
    (c) The Chiefs of the Public Safety and Homeland Security Bureau 
and the Wireless Telecommunications Bureau are delegated joint 
responsibility for adjudicating disputes.


Sec.  90.1430  Local public safety build-out and operation.

    (a) The Upper 700 MHz D Block licensee and the Operating Company 
through its lease arrangements shall, except in the two limited 
circumstances set forth herein, have the exclusive right to build and 
operate the Shared Wireless Broadband Network.
    (b) Rights to early build-out in areas with a build-out commitment. 
In an area where the Upper 700 MHz D Block licensee has committed, in 
the NSA, to build out by a certain date, a public safety entity may, 
with the pre-approval of the Public Safety Broadband Licensee and 
subject to the requirements set forth herein, construct a broadband 
network in that area at its own expense so long as the network is 
capable of operating on the Shared Wireless Broadband Network and meets 
all the requirements and specifications of the network required under 
the NSA.
    (1) Options for early build-out in areas with a build-out 
commitment. In order to obtain authorization to construct a broadband 
network as set forth in paragraph (b) of this section, the requesting 
public safety entity must agree to one of the following:
    (i) To, on its own, or through the Public Safety Broadband Licensee 
acting on its behalf, construct the network at its own expense, and 
upon completion of construction, transfer the network to the Upper 700 
MHz D Block licensee, which shall then integrate that network into the 
Shared Wireless Broadband Network constructed pursuant to the NSA; or
    (ii) To, in agreement with the Upper 700 MHz D Block licensee, 
provide all funds necessary for the Upper 700 MHz D Block licensee to 
complete the early construction of the network, including any and all 
additional resource and personnel costs, allowing the Upper 700 MHz D 
Block licensee at all times to own, operate, and manage the network as 
an integrated part of the Shared Wireless Broadband Network.
    (2) Negotiation of amendment to NSA. Under either early build out 
option set forth in paragraph (b)(1) of this section, the Public Safety 
Broadband Licensee, the Upper 700 MHz D Block licensee, and the public 
safety entity must, prior to any construction, negotiate an amendment 
to the NSA regarding this part of the network, specifying ownership 
rights, fees, and other terms, which may be distinct from the analogous 
terms governing the Shared Wireless Broadband Network, and such 
amendment must be approved by the Commission.
    (i) Such amendment must provide the terms under which the Upper 700 
MHz D Block licensee shall receive full ownership rights and shall 
compensate the public safety entity (or the Public Safety Broadband 
Licensee, where appropriate) for the construction of the network; and 
shall, absent agreement to the contrary, provide for such transfer and 
compensation to occur prior to the scheduled build out date for such 
network in the NSA.
    (ii) Any right to compensation from the Upper 700 MHz D Block 
licensee related to such early build-out shall be limited to the cost 
that would have been incurred had the Upper 700 MHz D Block licensee 
constructed the network itself in accordance with the original terms 
and specifications of the NSA, as reasonably determined by the parties 
and negotiated as part of the required NSA amendment required in 
paragraph (b)(2) of this section. Such costs shall not include costs 
attributable solely to advancing the date of construction or otherwise 
expediting the construction process.
    (3) Operations. The public safety entity may not commence 
operations on the network until ownership of the network has been 
transferred to the Upper 700 MHz D Block licensee. Further, no 
operations shall be allowed except those authorized and conducted 
pursuant to the authority of the Public Safety Broadband Licensee.
    (4) Attribution of early build-out to national benchmarks. Upon 
completion of construction, transfer of ownership to the Upper 700 MHz 
D Block licensee, and compensation as required herein, if applicable, 
the Upper 700 MHz D Block licensee may include the network constructed 
pursuant to the early build-out provisions herein for purposes of 
determining whether it has met its national build-out benchmarks and 
the build-out requirements of the NSA.
    (5) Rights to build out and operate in areas without a build-out 
commitment. In areas for which the NSA does not require the Upper 700 
MHz D Block licensee to build out the Shared Wireless Broadband 
Network, a public safety entity may build out and operate a separate, 
exclusive network in the 700 MHz public safety broadband spectrum at 
any time, provided the public safety entity has received the written 
approval of the Public Safety Broadband Licensee and operates its 
independent network pursuant to a spectrum leasing arrangement into 
which the public safety entity has entered with the Public Safety 
Broadband Licensee.
    (i) Such leasing arrangement shall not require the approval or 
consent of the Upper 700 MHz D Block licensee; however, the Public 
Safety Broadband Licensee must provide the Upper 700 MHz D Block 
licensee with notice of the public safety entity's intent to construct 
in that area within 30 days of receipt of a request from a public 
safety entity seeking to exercise this option, and shall inform the 
Upper 700 MHz D Block licensee of the public safety entity's 
anticipated build-out date(s).
    (ii) Should the Upper 700 MHz D Block licensee, within 30 calendar 
days from receipt of notice of the public safety entity's intent to 
construct in that area, certify in writing to the Public Safety 
Broadband Licensee that it will build out the shared network in the 
area within a reasonable time of the anticipated build-out date(s), as 
determined by the Public Safety Broadband Licensee, the Public Safety 
Broadband Licensee shall not allow the public safety entity to build 
and operate its own separate exclusive network in that area, provided 
that the Upper 700 MHz D Block licensee and the Public Safety Broadband 
Licensee execute an amendment to the NSA indicating the Upper 700 MHz D 
Block licensee's commitment to build the network in that area. Such 
commitment shall become enforceable against the Upper

[[Page 48867]]

700 MHz D Block licensee as part of its overall build-out requirements.
    (iii) If the Upper 700 MHz D Block licensee does not exercise its 
option to commit to build out the network in the requested area within 
30 calendar days of receipt of notice of the public safety entity's 
intent to construct in such area, the Public Safety Broadband Licensee 
and the public safety entity may proceed with a spectrum leasing 
arrangement, which must be filed with and approved by the Commission 
prior to the public safety entity commencing any operations. The 
spectrum leasing arrangement must take the form of a spectrum manager 
leasing arrangement under the rules specified in Sec.  1.9020 of this 
chapter, and incorporate the following conditions:
    (A) The network must provide broadband operations;
    (B) The network must be fully interoperable with the Shared 
Wireless Broadband Network;
    (C) The network must be available for use by any public safety 
entity in the area;
    (D) The network must satisfy any other terms or conditions required 
by the Public Safety Broadband Licensee; and
    (E) The public safety entity must construct and place into 
operation its network within one year of the effective date of the 
spectrum manager leasing arrangement. If the public safety entity fails 
to place the network into operation within one year, the Public Safety 
Broadband Licensee shall terminate the spectrum leasing arrangement 
pursuant to Sec.  1.9020(h)(3) of this chapter. The public safety 
entity may also seek extended implementation authority from the 
Commission pursuant to the requirements of Sec.  90.629.
    (6) Except as set forth herein, the separate network is not 
required to meet the other specifications of the Shared Wireless 
Broadband Network. Absent agreement of the public safety entity, the 
Public Safety Broadband Licensee, and the Upper 700 MHz D Block 
licensee, the separate network may not operate using any spectrum 
associated with the Upper 700 MHz D Block license.
    (7) The Public Safety Broadband Licensee must file with the 
Commission any spectrum manager leasing arrangement as specified in 
Sec.  1.9020(e) of this chapter; such filing shall identify the public 
safety entity leasing the spectrum, the particular areas of spectrum 
leased as part of this build-out option, and the specific network 
infrastructure and equipment deployed on such leased spectrum.


Sec.  90.1432  Conditions for waiver to allow limited and temporary 
wideband operations in the 700 MHz public safety spectrum.

    (a) Wideband operations in the 700 MHz Public Safety spectrum. 
Wideband operations are prohibited in the public safety allocation of 
the 700 MHz band public safety spectrum except where the Commission has 
granted a waiver pursuant to Sec. Sec.  1.3 and 1.925 of this chapter 
and subject to the additional conditions and requirements specified in 
this section. Grants of waiver are restricted to the deployment of a 
wideband system in the consolidated narrowband portion or the internal 
public safety guard band portion of the public safety broadband 
spectrum. Where spectrum in the narrowband segment or internal guard 
band segment is unavailable for wideband operations, public safety 
entities may request a waiver to operate in the upper 1.25 megahertz of 
the public safety broadband spectrum.
    (b) Any public safety entity seeking to conduct wideband operations 
within the public safety allocation must file a request for waiver that 
is accompanied by an application for authorization and includes the 
following information:
    (1) A letter from the Public Safety Broadband Licensee, confirming 
that the proposed wideband deployment is not inconsistent with the 
broadband deployment plan for the affected or adjacent service areas; 
and
    (2) A description of the conditions or transition requirements, if 
any, agreed to between the applicant and the Public Safety Broadband 
Licensee.
    (c) Additional requirement for wideband operations in the 
narrowband segment and Internal Guard Band. If an applicant seeks 
permission to deploy wideband systems in the narrowband segment, its 
waiver request must also include a letter from the appropriate regional 
planning committee or state licensee confirming that the proposed 
wideband deployment will not disrupt any regional or state planning 
efforts that are underway.
    (d) Additional requirements and conditions for wideband operations 
in the broadband segment. Permission to conduct wideband operations in 
the broadband segment will be granted only where spectrum in the 
narrowband segment or the internal guard band is unavailable for 
wideband operations. In no event will permission be granted to conduct 
wideband operations in geographic areas scheduled for broadband 
deployment within the first three years of the build-out plan for the 
Shared Wireless Broadband Network.
    (1) An applicant seeking permission to deploy wideband systems in 
the broadband segment must have first issued a request for proposal 
(RFP) that permitted interested parties to submit broadband proposals 
that are technically consistent with the Shared Wireless Broadband 
Network.
    (2) A request for waiver that seeks permission to deploy wideband 
systems in the broadband segment must include the following 
information:
    (i) A substantially supported, detailed technical showing 
demonstrating that insufficient spectrum in the narrowband segment or 
the internal guard band is available to support the desired wideband 
operations;
    (ii) A showing that rejected responses to the required broadband 
network RFP were more costly, provided less coverage as measured by 
throughput at the network edge, or were otherwise inferior to the 
accepted wideband proposal; and
    (iii) A detailed plan for integration of such wideband system into 
the Shared Wireless Broadband Network. This plan must specify how and 
by what date the wideband applicant will integrate its proposed 
wideband system into Shared Wireless Broadband Network and must include 
a certification that the public safety entity will not seek 
reimbursement for any costs involved in converting the wideband system 
to Shared Wireless Broadband Network upon completion of that network in 
the applicant's geographic area.
    (3) Authority to conduct wideband operations in the broadband 
segment of the public safety spectrum will be subject to the following 
conditions:
    (i) All devices operating on the wideband system must be designed 
to interoperate with Shared Wireless Broadband Network;
    (ii) All waivers will expire automatically upon the Upper 700 MHz D 
Block licensee's initiation of service in the service area covered by 
such waiver.
    (e) Secondary status of wideband operations. All wideband 
operations permitted under this section shall be secondary to the 
authorized narrowband or broadband applications, as applicable.
    (f) License terms for wideband operations. Any secondary license to 
conduct wideband operations in the public safety spectrum shall have a 
term of no more than five years.
    (g) Renewal of wideband authorization. Any request for renewal of 
an initial authorization to conduct wideband operations shall be filed 
not less than 180 days prior to expiration of the license. All renewal 
requests must include a showing that continued operation of the 
wideband system is in

[[Page 48868]]

the public interest and must be accompanied by a letter from the Public 
Safety Broadband Licensee confirming that continuing wideband 
operations are not inconsistent with the broadband deployment plan for 
the affected or adjacent service areas. The license term for any 
renewal of a license granted under the waiver provisions herein shall 
not exceed three years. No more than one license renewal will be 
granted.
    (h) Grandfathered wideband STA operations. Upon request, the Public 
Safety and Homeland Security Bureau may grant a public safety entity 
that has constructed, deployed, and was operating a wideband system as 
of July 31, 2007 pursuant to STA to extend the STA grant for periods of 
no more than 180 days until, but not later than, six months following 
the selection of the Public Safety Broadband Licensee.


Sec.  90.1435  Prohibition on discontinuance of public safety 
operations.

    The Upper 700 MHz D Block licensee, the Operating Company, and the 
Network Assets Holder are prohibited from discontinuing or degrading 
the broadband network service provided to the Public Safety Broadband 
Licensee or to public safety entities unless either at the request of 
the entity or entities in question or it has first obtained the 
approval of the Commission. The Upper 700 MHz D Block licensee shall 
notify the affected public safety entity or entities and the Public 
Safety Broadband Licensee at least 30 days prior to any unrequested 
discontinuance or degradation of network service.


Sec.  90.1440  Reporting obligations.

    (a) The Upper 700 MHz D Block licensee and the Public Safety 
Broadband Licensee shall jointly file quarterly reports with the 
Commission. These reports shall include audited financial statements, 
how the specific requirements of public safety are being met, detailed 
information on the areas where broadband service has been deployed, 
which public safety entities are using the broadband network in each 
area of operation, what types of applications are in use in each area 
of operation, and the number of declared emergencies in each area of 
operation.
    (b) The Public Safety Broadband Licensee and the Upper 700 MHz D 
Block licensee have joint responsibility to register the base station 
locations with the Commission, providing basic technical information, 
including geographic location.

[FR Doc. 07-4123 Filed 8-23-07; 8:45 am]
BILLING CODE 6712-01-P


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