24238 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

1 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 Section 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). 

FY 2006 RADIO STATION REGULATORY FEES—Continued 

Population served AM Class A AM Class B AM Class C AM Class D FM Classes 

A, B1 & C3 

FM Classes 

B, C, C0, 

C1 & C2 

500,001–1,200,000 .......................................................... 4,000 3,100 2,000 2,375 3,875 4,700 

1,200,001–3,000,00 ......................................................... 6,150 4,750 3,000 3,800 6,325 7,500 

≤3,000,000 ....................................................................... 7,375 5,700 3,800 4,750 8,050 9,750 

[FR Doc. E7–8366 Filed 5–1–07; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 27 

[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; 

FCC No. 07–72] 

Service Rules for the 698–806 MHz 

Band and Revision of the 

Commission’s Rules Regarding 

Enhanced 911 Emergency Calling 

Systems, Hearing Aid-Compatible 

Telephones, and Public Safety 

Spectrum Requirements 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this Further Notice of 

Proposed Rulemaking (FNPRM), the 

Federal Communications Commission 

(FCC) seeks comment on 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: Comments due on or before May 

23, 2007 and reply comments are due on 

or before May 30, 2007. Section 213 of 

the Consolidated Appropriations Act 

2000 provides that rules governing 

frequencies in the 746–806 MHz Band 

are not subject to certain sections of the 

Paperwork Reduction Act.1 The 

Commission is therefore not inviting 

comment on any information collections 

that concern frequencies in the 746–806 

MHz Band. 

ADDRESSES: You may submit comments, 

identified by 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, by any of the 

following methods: <bullet≤ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. <bullet≤ Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. <bullet≤ E-mail: Include the docket 

numbers in the subject line of the 

message. <bullet≤ People with Disabilities: 

Contact the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by E-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: Paul 

Moon at (202) 418–1793, 

paul.moon@fcc.gov, Mobility Division, 

Wireless Telecommunications Bureau; 

Paul D’Ari at (202) 418–1550, 

paul.d’ari@fcc.gov, Spectrum and 

Competition Policy Division, Wireless 

Telecommunications Bureau; John 

Evanoff at (202) 418–0848, 

john.evanoff@fcc.gov, Public Safety and 

Homeland Security Bureau. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

Notice of Proposed Rulemaking 

(FNPRM), 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, FCC No. 07–72, 

adopted April 25, 2007 and released 

April 27, 2007. The full text of the 

FNPRM 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 

FCC@BCPIWEB.COM. 

Initial Paperwork Reduction Act of 

1995 Analysis 

This document contains proposed 

new or modified information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget (OMB) to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. Public and 

agency comments are due 30 days after 

date of publication in the Federal 

Register. Comments should address: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we seek specific comment on how we 

might ‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ In this present document, 

we have assessed the potential effects of 

the various proposals with regard to 

information collection burdens on small 

business concerns, and find that there 

are no results specific to businesses 

with fewer than 25 employees. The 

Commission notes, however, that 

Section 213 of the Consolidated 

Appropriations Act 2000 provides that 

rules governing frequencies in the 746– 

806 MHz Band become effective 

immediately upon publication in the 

Federal Register without regard to 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24239 

2 Id. 

3 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, 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 (2006). 

4 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, 21 FCC Rcd 10413 (2006). 

5 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 

06–229, WT Docket No. 96–86, Ninth Notice of 

Proposed Rule Making, 21 FCC Rcd 14837 (2006); 

Development of Operational, Technical and 

Spectrum Requirements for Meeting Federal, State 

and Local Public Safety Communications 

Requirements Through the Year 2010, Eighth Notice 

of Proposed Rulemaking, WT Docket Nos. 96–86 

and 05–157, 21 FCC Rcd 3668 (2006). 

certain sections of the Paperwork 

Reduction Act.2 The Commission, 

therefore, is not inviting comment on 

any information collections that concern 

frequencies in the 746–806 MHz Band. 

Synopsis 

1. In the Further Notice of Proposed 

Rulemaking (FNPRM), the FCC reaches 

tentative conclusions and makes 

proposals with respect to a limited 

number of key issues affecting licensing, 

service and technical rules for the 698– 

806 MHz Band (i.e., the 700 MHz Band). 

In addition, the FCC seeks comment on 

the ‘‘Public Safety Broadband 

Deployment Plan’’ proposal submitted 

by Frontline Wireless, LLC (Frontline). 

In seeking additional comment in this 

FNPRM, the FCC intends to rely on the 

extensive record that has already been 

developed in the three pending 700 

MHz Band proceedings to inform its 

ultimate decisions. 

2. In addition to the recently filed 

Frontline proposal, the three pending 

700 MHz Band proceedings are: (1) The 

700 MHz Commercial Services 

proceeding,3 (2) the 700 MHz Guard 

Bands proceeding,4 and (3) the 700 MHz 

Public Safety proceeding.5 Because 

decisions on certain issues in the three 

proceedings are potentially interrelated, 

the FCC chooses to address them jointly 

in the FNPRM. In so doing, the FCC 

seeks to promote access to 700 MHz 

Band spectrum and the provision of 

service to consumers across the country, 

including in rural areas, as well as 

opportunities for broadband service for 

public safety users. 

1. 700 MHz Band Commercial Services 

A. Lower 700 MHz Band 

3. In the existing band plan for the 

Lower 700 MHz Band, the 48 megahertz 

of spectrum is divided into five blocks: 

three 12-megahertz paired blocks, each 

consisting of two 6-megahertz segments 

(Blocks A, B, and C); and two 6- 

megahertz unpaired blocks (Blocks D 

and E). The FCC proposes not to alter 

the spectrum blocks as currently sized 

and aligned. The spectrum comprising 

Lower 700 MHz Band Blocks C and D, 

consisting of 18 of the 48 megahertz in 

that band, has already been auctioned, 

and the remainder of the Lower 700 

MHz Band is subject to a statutorily 

imposed auction schedule. The FCC 

also notes that a number of parties 

support retaining the current size of 

spectrum blocks in the Lower 700 MHz 

Band, including Blocks C and D of that 

Band. The FCC therefore proposes not to 

change the bandwidth of this licensed 

spectrum, but seeks further comment on 

this proposal. 

4. The FCC also proposes that the 

unpaired spectrum in the E Block of the 

Lower 700 MHz Band remain over larger 

regional areas, licensed on an REAG 

basis. As the FCC has found before with 

respect to the 700 MHz band and to the 

AWS–1 band, and as supported by 

several commenters in this record, 

licenses based on large geographic areas 

offer certain benefits, such as allowing 

licensees to more easily take advantage 

of economies of scale to develop new 

technologies and services. The FCC 

seeks comment on whether this 

proposal would serve the public 

interest. 

5. The FCC also proposes to adopt 

EAs as the geographic area for licenses 

in the A Block in the Lower 700 MHz 

Band. The FCC makes this proposal 

because there is significant support in 

the record for a mix of licenses, 

including EA licenses. Given the 

potential public interest benefits of 

placing one additional spectrum block 

over small geographic service areas (in 

addition to the B Block of the Lower 700 

MHz Band), while also retaining 

significant portions of spectrum licenses 

in large geographic areas, the FCC seeks 

comment on whether it would serve the 

public interest to license the A Block 

across EAs. 

6. In addition, the FCC proposes that 

CMAs be adopted as the geographic 

service area for licenses in the B Block 

of the Lower 700 MHz Band, which 

results in the availability of 734 CMA 

licenses in this block as opposed to 6 

EAG licenses. In seeking comment on 

this proposal, the FCC notes that certain 

commenters specifically favor the B 

Block for reassignment on the basis of 

CMAs. The FCC also notes that, if it 

assigns CMAs in the Lower 700 MHz 

Band B Block, licensees will be afforded 

the opportunity to combine the B Block 

licenses with licenses in the adjacent C 

Block, which already have been 

licensed over CMAs (Metropolitan 

Statistical Areas and Rural Service 

Areas (MSAs/RSAs)). Accordingly, the 

FCC seeks comment on whether 

converting the B Block to CMA 

licensing could create opportunities for 

existing licensees in the C Block of the 

Lower 700 MHz Band, many of which 

include small or rural service providers, 

to create a larger block by acquiring 

another similarly sized spectrum block 

in the auction. 

B. Upper 700 MHz Band Commercial 

Services Band 

7. The following proposals would 

make several changes to the size and 

location of the spectrum blocks in the 

band plan currently associated with the 

Upper 700 MHz Commercial Services 

Band and the 700 MHz Guard Bands, as 

well as the geographic area basis on 

which the various blocks should be 

licensed. The FCC considers these 

changes in large part because it is 

tentatively concluding to consolidate 

the proposed broadband portion of the 

700 MHz Public Safety Band at the 

lower portion of the Public Safety 

spectrum, as discussed below, while 

consolidating narrowband operations to 

the upper portion of the Public Safety 

spectrum. If the FCC adopts such a 

proposal, the adjacency of Public Safety 

broadband spectrum to commercial 

broadband spectrum in the Upper 700 

MHz Band may make it possible to 

make adjustments to the Guard Bands 

spectrum, rendering additional 

spectrum available for commercial use. 

Under one scenario, the existing Guard 

Band B block would be eliminated 

entirely, and the spectrum subsumed 

within the commercial spectrum in the 

Upper 700 MHz Band, resulting in a 

total of 34 megahertz available for 

auction. Under another scenario, the 

Guard Band B Block would be reduced 

from four to two megahertz, and the 

location of both the Guard Band A and 

B blocks would be shifted within the 

Upper 700 MHz Band. The FCC 

discusses the proposals below on this 

basis. 

(i) Proposals Based on Elimination of 

the Guard Band B Block 

8. Elimination of the Guard Band B 

Block. As noted, adoption of the FCC’s 

mmaher on DSK3CLS3C1PROD with $$_JOB

24240 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

proposal to consolidate the broadband 

Public Safety spectrum in the lower 

portion of the 700 MHz Public Safety 

Band may mean that the four megahertz 

of spectrum in the existing Guard Band 

B Block is no longer needed for use as 

a guard band for the adjacent 700 MHz 

public safety users, and may be 

consolidated with the rest of the 

commercial spectrum for more efficient 

and effective use. The following 

proposals would reconfigure the band 

plan associated with the 30 megahertz 

of commercial spectrum in the Upper 

700 MHz Commercial Services Band 

and the four megahertz of commercial 

spectrum in the 700 MHz Guard Band 

B Block, providing 34 megahertz of 

commercial spectrum in the Upper 700 

MHz Band available for auction 

throughout most of the nation. These 

proposals also contemplate the creation 

of a 12 megahertz paired block of 

commercial spectrum (758–764 MHz/ 

788–794 MHz) adjacent to the 700 MHz 

Public Safety Band (hereinafter the 

‘‘adjacent block’’). 

9. In addition to providing additional 

spectrum for wireless broadband 

services, the new adjacent block could 

help facilitate the transition to wireless 

broadband for public safety in its 700 

MHz spectrum. Under these proposals, 

the adjacent block auction winner(s) 

would have to pay the costs of 

consolidating the 700 MHz Public 

Safety spectrum with the narrowband 

allocation at the upper end and the 

broadband allocation at the lower end. 

The FCC seeks comment on whether the 

adjacent block auction winner(s) 

should, as a license condition, be 

required to post a letter of credit or 

place certain funds in escrow to ensure 

the availability of funds to fulfill this 

obligation. The FCC also seeks comment 

on how to establish the amount and 

mechanism for implementing such an 

obligation. For example, how should the 

FCC assess the responsibility for 

relocating public safety operations if 

there are multiple adjacent block 

auction winners? 

10. As mentioned above, the FCC 

currently holds 42 of the 52 Guard Band 

B Block licenses. These proposals 

would grandfather the remaining B 

Block licenses by allowing them to 

continue to operate in this spectrum 

under current rules. The FCC seeks 

comment on whether it should permit 

existing Guard Band B Block licensees 

to operate pursuant to the current 

technical specifications for the Guard 

Band B Block, which contemplate that 

Guard Band B Block licensees operate 

high-site, high-power communications. 

The FCC seeks comment on whether 

there would be potential for harmful 

interference to new, co-channel adjacent 

block licensees, or to public safety 

broadband operations, if the FCC adopts 

its proposals for the 700 MHz Public 

Safety spectrum. Similarly, if the FCC 

eliminates the existing Guard Band B 

block, resulting in a 12-megahertz 700 

MHz commercial block immediately 

adjacent to the 700 MHz Public Safety 

block, the FCC seeks comment on 

whether any technical or operational 

restrictions or limitations would need to 

be adopted to protect against 

interference to the proposed broadband 

public safety operations. 

11. In addition, the FCC seeks 

comment on whether it could facilitate 

clearing of the existing Guard Band B 

Block licensees by allowing the 

incumbents to include their licenses in 

the auction inventory in a ‘‘two-sided’’ 

auction, which would make available 

licenses currently held by incumbent 

Guard Band B Block licensees. 

Commenters should address details of 

how the existing licenses could be 

incorporated into the auction, and how 

the incumbent licensees could be 

compensated for ‘‘selling’’ a license. Are 

there other ways we should consider 

transitioning the existing Guard Band B 

Block licensees to the proposed band 

plan? 

12. The FCC notes that a 

reconfiguration of the band plan for the 

700 MHz Public Safety Band, as 

discussed below, may result in the 

relocated narrowband channels being 

blocked by existing Canadian TV 

broadcasters in certain border areas. 

Although the Canadian government has 

agreed to clear broadcasters from TV 

channels 63 and 68, there is as yet no 

such agreement for TV channels 64 and 

69, where the narrowband channels 

would rest in their entirety after the 

proposed band plan reconfiguration. As 

a temporary solution to this problem, 

the FCC is also seeking comment below 

in this FNPRM on whether to allow, in 

border areas, narrowband voice 

communications within the 1 megahertz 

internal guard band that is designed 

(under a band reconfiguration) to 

protect the narrowband channels from 

the proposed broadband channels. The 

result of this option would be a 

corresponding loss of available 

spectrum for broadband 

communications, since a 1 megahertz 

internal guard band would still be 

necessary to protect the shifted 

narrowband channels from public safety 

broadband operations. 

13. As a result, under these proposals, 

the FCC would impose a license 

condition upon the adjacent block 

licensee, creating a temporary easement 

into the adjacent block to facilitate the 

full 5 megahertz bandwidth of the 

proposed public safety broadband 

allocation under a band reconfiguration. 

This easement would terminate upon 

transition of the border broadcast 

operations and the subsequent 

transition of any relevant public safety 

users operating on the easement. The 

FCC also seeks comment on whether 

this easement should be triggered in all 

adjacent block licenses that share a 

border with Canada or Mexico, within 

each licensee’s entire service area or 

within the portion that is within range 

of the conflicting broadcaster’s service 

contour. In such a circumstance, should 

the adjacent block licensee be allowed 

to operate on a secondary basis within 

the easement spectrum, or not at all? 

Finally, the FCC seeks comment on 

whether we have the authority to 

impose this license condition on new 

adjacent block licensees. 

14. Proposal 1. In the first proposal, 

the FCC would establish a new 22- 

megahertz C Block (comprised of two 

11-megahertz blocks of paired 

spectrum), and a new 12-megahertz D 

Block (comprised of two 6-megahertz 

blocks of paired spectrum). Both the C 

and D Blocks in the Upper 700 MHz 

Band would be licensed on a REAG 

basis. 

15. Creating a paired, 22-megahertz 

block of spectrum in a newly configured 

C Block would be responsive to the 

desires of some potential new entrants, 

as well as many other commenters who 

favored a large 20 megahertz block of 

spectrum in the Upper 700 MHz Band. 

For example, the Coalition for 4G in 

America has specifically advocated that 

we adopt a paired, 22-megahertz license 

in the Upper 700 MHz Band to support 

new entry. Under this proposal, 

licensees could purchase licenses in 

these contiguous blocks to create 34- 

megahertz licenses, which could 

provide unique opportunities to offer 

broadband services. Further, with regard 

to the larger 22-megahertz C Block 

REAG licenses, the FCC proposes, 

consistent with the desires expressed by 

the Coalition for 4G America, to auction 

this block on a combinatorial basis, 

which would further facilitate the 

aggregation of licenses at auction to 

create a nationwide footprint. The FCC 

seeks comment on this proposal. 

16. Proposal 2. This proposed band 

plan contemplates licensing 34 

megahertz of commercial spectrum in 

the Upper 700 MHz Band using a mix 

of REAG, EA and CMA geographic 

licensing areas. In conjunction with the 

proposed mix of geographic licensing 

areas in the Lower 700 MHz Band, this 

proposal seeks to approximate the 

balanced mix of geographic licensing 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24241 

sizes adopted by the FCC in the recent 

AWS–1 auction. It is intended to 

provide opportunities for small 

providers in rural areas, as well as new 

entrants seeking to establish a 

nationwide wireless footprint, and to 

afford bidders flexibility to aggregate 

smaller markets to create either a 

nationwide market, or large regional or 

other customized markets. 

17. Specifically, this proposal would 

create two 11-megahertz licenses (each 

composed of two 5.5-megahertz paired 

blocks)—the C and D blocks—and a 12- 

megahertz E block (composed of two 6- 

megahertz paired blocks) similar to the 

block that is the subject of the Frontline 

proposal discussed below. Under this 

proposal, the FCC would license the C 

and D Blocks both on an EA basis, or the 

C Block on a CMA basis and the D Block 

on an EA basis. The FCC would license 

the E Block on a REAG basis. This band 

plan is not tied to adoption of either the 

Broadband Optimization Plan or the 

recently filed alternative plan. The FCC 

seeks specific comment on whether this 

proposal provides interested bidders 

with the flexibility to aggregate smaller 

markets to create either a nationwide 

market, large regional or other 

customized markets, as advocated by a 

broad array of parties. Also, the FCC 

seeks comment as to whether this band 

plan would offer some potential new 

entrants an opportunity to provide 

broadband services. Finally, the FCC 

seeks comment on whether to consider 

licensing these spectrum blocks set forth 

in this proposal on a different 

geographic basis. 

(ii) Proposals Based on Modified 700 

MHz Guard Bands 

18. Modification of the 700 MHz 

Guard Bands. The following three 

proposals are premised on: 1) a shift of 

the Guard Band A Block from 746–747/ 

776–777 MHz to 762–763/792–793 

MHz; 2) a reduction of the Guard Band 

B Block from 4 megahertz to 2 

megahertz; and 3) a shift of the Guard 

Band B Block from 762–764/792–794 

MHz to 775–776 MHz/805–806 MHz. 

These actions would make 32 megahertz 

of spectrum in the Upper 700 MHz Band 

(746–762 MHz/776–792 MHz) available 

for commercial licensing. 

19. Proposal 3. Access Spectrum/ 

Pegasus have submitted an alternative 

proposal to the Commission for 

modification of the Guard Bands in the 

Upper 700 MHz Band, which could also 

impact the configuration of the Upper 

700 MHz Band. According to Access 

Spectrum/Pegasus, its alternative plan 

would permit the auction of 32 

megahertz of commercial broadband 

spectrum but leave the size of the public 

safety allocation unchanged. They also 

argue that it would accommodate the 

consolidation of the public safety 

narrowband spectrum by addressing the 

Canadian interference issues and public 

safety relocation costs, discussed above. 

Finally, by proposing an 11 megahertz 

block immediately adjacent to the 

Lower 700 MHz C Block, Access 

Spectrum/Pegasus assert that the 

alternative proposal addresses 

interference concerns on the record by 

moving the Guard Band A Block. 

20. Access Spectrum/Pegasus propose 

to ‘‘shift’’ down the 700 MHz Public 

Safety Band by 1 megahertz to remedy 

potential narrowband interference 

issues with Canada and Mexico, if the 

FCC determines that a consolidation of 

the narrowband channels to the top of 

the public safety allocation is in the 

public interest. In implementing the 

‘‘shift,’’ the current A Block at 746–747 

MHz and 776–777 MHz would be 

displaced and relocated, and the Upper 

700 MHz C Block would become a 22- 

megahertz block (comprised of two 11- 

megahertz paired blocks) through 

redistribution of a total of 2 megahertz 

of current B Block spectrum. According 

to Access Spectrum/Pegasus, a 22- 

megahertz C Block would address 

potential interference concerns and 

would be responsive to record support 

for an 11-megahertz paired block. The 

alternative plan proposes that the D 

Block would be a 10-megahertz block, 

(comprised of two 5-megahertz paired 

blocks) and that the newly configured A 

Block would be reduced from a total of 

4 megahertz to 2 megahertz. In addition, 

with the displacement of the A Block, 

Access Spectrum/Pegasus propose that 

the FCC modify the licenses of the 

incumbent A Block licensees, 

essentially ‘‘repacking’’ the newly 

configured A Block with all current A 

and B Block licensees. 

21. Access Spectrum/Pegasus propose 

to work with the FCC to ensure that all 

current A Block and B Block licensees 

can be accommodated in the newly 

configured A Block. Subject to certain 

conditions, Access Spectrum/Pegasus 

would also agree to pay for the 

transition of public safety narrowband 

operations in the band. Their proposed 

conditions include: (a) the newly 

configured A Block sharing the same 

service rules as the Upper 700 MHz C 

and D Blocks, including application of 

our Secondary Markets rules; and (b) the 

Commission removing the cellular 

architecture restrictions on the newly 

configured A Block. 

22. The FCC seeks comment on 

Access Spectrum/Pegasus’ alternative 

proposal and its likely effects on both 

the commercial and public safety users 

in the 700 MHz Band. The FCC also 

seeks comment on whether, and to what 

extent, the Commission should: (a) 

Adopt certain, but not all, elements of 

the Access Spectrum/Pegasus 

alternative proposal; (b) modify any 

elements of the proposal, adopt any 

additional requirements, or adopt any 

alternative requirements to achieve the 

same or similar public interest goals; 

and (c) consider alternative approaches 

to encourage public-private partnerships 

for sharing spectrum between public 

safety users and commercial licensees in 

the 700 MHz Band. 

23. The Access Spectrum/Pegasus 

proposal to shift down the public safety 

block by 1 megahertz would result in 

the overlap of public safety spectrum 

onto 1 megahertz of each pair of the 

current Guard Bands B Block licenses, 

including licenses that are currently 

encumbered in certain areas of the 

country. As a proposed solution to this 

problem, Access Spectrum/Pegasus 

offers to work with the FCC and the 

current Guard Bands B Block licensees 

to repack all of the current Guard Bands 

licensees into the newly configured A 

Block. The FCC notes that, in addition 

to Access Spectrum/Pegasus, two other 

current Guard Bands B Block license 

holders, PTPMS II and Harbor Guard 

Band, LLC, have indicated that they will 

work with the Commission to develop a 

plan that treats each party fairly. The 

FCC seeks comment on the extent to 

which it may rely on these private 

negotiations to resolve the spectrum 

overlap problem. The FCC is concerned 

that, if all incumbent Guard Bands 

licensees do not come to an agreement 

consistent with Access Spectrum/ 

Pegasus’ alternative proposal, public 

safety and commercial operations in 

areas with incumbent B Block licensees 

would be significantly curtailed. The 

FCC tentatively concludes that the 

Commission should reject Access 

Spectrum/Pegasus’ alternative proposal 

if the incumbent licensees are unable to 

come to an agreement. 

24. Proposal 4. If the FCC determines 

that it is able to modify the Upper 700 

MHz Guard Bands in the manner 

proposed by Access Spectrum/Pegasus 

in connection with their alternative 

band plan proposal, it seeks comment 

on other options the Commission may 

take. For example, the FCC seeks 

specific comment on a band plan 

composed of a mix of REAG and EA 

geographic licensing areas for the Upper 

700 MHz Band. In conjunction with the 

tentative conclusion regarding the mix 

of geographic licensing areas in the 

Lower 700 MHz Band, this band plan 

closely approximates the balanced mix 

of geographic licensing sizes adopted by 

mmaher on DSK3CLS3C1PROD with $$_JOB

24242 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

6 Balanced Consensus Plan Comments in WT 

Docket No. 06–150 at Attachment. 

7 47 U.S.C. 309(j)(3). 

the Commission in the recent AWS 

auction. This band plan will provide 

opportunities for small providers in 

rural areas, as well as new entrants 

seeking to establish a nationwide 

wireless footprint. 

25. Specifically, this band plan 

proposes to license the C and D Blocks 

as two separate 11-megahertz licenses 

(each composed of two 5.5-megahertz 

paired blocks) on a REAG basis, with an 

E Block similar to the block that is the 

subject of the Frontline proposal 

discussed below licensed as a 10- 

megahertz license (composed of paired 

5-megahertz blocks) on an EA basis. The 

FCC seeks specific comment on whether 

this proposal regarding the C and D 

Blocks will provide interested bidders 

with an opportunity to combine the two 

blocks into a single 22-megahertz 

license, which some potential new 

entrants have suggested would provide 

unique opportunities to provide 

broadband services. The FCC also seeks 

specific comment on whether one or 

both of the C and D Blocks should be 

auctioned on a combinatorial basis in 

order to further facilitate the aggregation 

of a nationwide footprint, and if so, how 

this should be accomplished. 

26. In addition, the FCC proposes that 

if the Commission were to adopt the 

Frontline proposal discussed below 

(effectively treating the E block as a 

single national geographic license), it 

would license the D Block on an EA 

basis (and maintain the C Block on a 

REAG basis) in order to maintain a 

balanced mix of geographic license 

sizes. The FCC seeks comment on this 

proposal. 

27. Proposal 5. Finally, the FCC seeks 

comment on an additional alternative 

proposal that assumes that we modify 

the guard bands. As set out below, 

under this band plan the FCC would 

license the C and D blocks as two 11- 

megahertz licenses (each composed of 

two 5.5-megahertz paired blocks), with 

a 10-megahertz E Block (composed of 

paired 5-megahertz block). The C Block 

would be licensed on a REAG basis, and 

the D and E Blocks would be licensed 

on an EA basis. 

28. A number of parties have argued 

that a more flexible Upper 700 MHz 

band plan that includes a mix of 

licenses could better support a variety of 

business plans and ensures that the 

spectrum is made available to the 

bidders that value it most. There is a 

concern that a band plan with only 

REAGs in the Upper 700 MHz Band may 

artificially favor only the largest 

wireless incumbents or particular 

business models. These principles have 

been supported by a large number of 

commenters including large wireless 

providers, tribal governments, state 

regulators, and a large coalition of 

wireless providers.6 These principles 

reflect the Commission’s statutory 

obligation to ensure ‘‘an equitable 

distribution of licenses and services 

among geographic areas’’ and to ‘‘avoid 

[ ] excessive concentration of licenses * 

* * by disseminating licenses among a 

wide variety of applicants, including 

small businesses, rural telephone 

companies, and businesses owned by 

members of minority groups and 

women.’’ 7

29. The above band plan takes into 

account these several positions by 

providing for a mix of REAGs and EAs 

in the upper band plan based in part on 

the 700 MHz guard band and public 

safety spectrum restructuring advocated 

by Access Spectrum and Pegasus. By 

splitting the larger 22-megahertz block 

into two 11-megahertz blocks, the FCC 

increases the opportunity for all 

providers to actively participate in the 

auction. The FCC also would allow for 

combinatorial bidding on the C Block to 

facilitate the ability of entities to secure 

a national license. The FCC seeks 

comment on the merits of this proposal 

and on the specific areas selected for the 

blocks: two EAs and one REAG. Parties 

are also encouraged to comment on 

possible changes to this band plan in 

the event the FCC adopts a proposal 

similar to the one advanced by 

Frontline. Finally, the FCC seeks 

comment on the impact of this band 

plan on potential new entrants, some of 

which have argued that a larger 22- 

megahertz block is critical for their 

market entry business plans. 

C. Performance Requirements 

30. Given the numerous and 

competing arguments offered by 

commenters, and considering the 

importance of rules that promote access 

to spectrum and the provision of 

service, the FCC seeks further comment 

on the performance requirements for the 

700 MHz Commercial Services 

licensees. As the basis for its 

consideration, the FCC proposes to 

combine performance requirements 

based on geographic benchmarks and a 

‘‘keep what you use’’ rule. Specifically, 

the FCC proposes that each licensee 

provide coverage of 25 percent of the 

geographic area of the license within 

three years of the grant of the initial 

license, 50 percent of this area within 

five years, and 75 percent of the area 

within eight years. The FCC seeks 

comment on this proposal, including its 

advantages and disadvantages. To the 

extent commenters believe these 

proposed benchmarks should be higher 

or lower, the FCC requests that they 

provide information that would 

corroborate the benefits of their 

proposed benchmarks and the costs and 

benefits of alternative approaches. 

Comments should address whether 

these specific geographic benchmarks 

would promote access to spectrum and 

the provision of service. 

31. The FCC also proposes to consider 

the relevant service area to exclude all 

government land. Under this approach, 

a licensee with a geographic service area 

that includes land owned or leased by 

government would be able to meet the 

build-out benchmarks by employing a 

signal level that is sufficient to provide 

service to the relevant percentages of 

land in the service area that is not 

owned or leased by government. If a 

licensee employs a signal level that 

provides coverage to land that is owned 

or leased by government, the FCC seeks 

comment on whether the licensee could 

count this land area and coverage as 

part of its service area for purposes of 

measuring compliance with the 

performance benchmark. Similarly, the 

FCC seeks comment on whether it 

should adopt a ‘‘keep what you use’’ 

standard that also excludes those 

portions of the licensed areas that 

encompass land owned or leased by 

government. In particular, the 

Commission asks how a ‘‘keep what you 

use’’ rule that excluded government 

land would be applied in areas, such as 

Alaska, in which vast portions of the 

state or region include such land. 

32. The FCC also seeks comment on 

the potential consequences for licensees 

that fail to meet the interim 

requirements to cover a minimum 

percentage of the geographic area of 

their license area. For example, 

licensees that fail to meet these 

benchmarks could have the length of 

their license term reduced. 

Alternatively, licensees that fail to meet 

the benchmarks could have their license 

area reduced under a proportionate 

‘‘keep what you use’’ approach. Under 

this alternative, the reduction of the 

license area would be sufficient to 

create a resulting license area in which 

the area currently covered meets the 

relevant interim benchmark. For 

example, if a licensee employs a signal 

level sufficient to provide service to 

only 20 percent of the geographic area 

by the three-year benchmark, the 

licensee would be required to return a 

portion of the licensee’s unserved area 

to the Commission, so that the covered 

area equals at least 25 percent of the 

remaining portion of the license area. A 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24243 

similar process would be used if a 

licensee fails to meet the five- and eightyear benchmarks. 

33. The FCC also seeks comment on 

how it might apply a ‘‘keep what you 

use’’ rule to this proposal. In particular, 

the FCC asks whether it should apply 

such a standard to all of the licensees 

for the unauctioned 700 MHz Band 

Commercial Services or only to those 

licensees that fail to meet their 

geographic benchmarks. For example, 

the FCC could apply the ‘‘keep what 

you use’’ rule at the end of the license 

term, regardless of the level of 

construction by the licensee. 

Alternatively, licensees that fail to meet 

the 75 percent geographic area coverage 

requirement could be subject to a ‘‘keep 

what you use’’ rule applied either at the 

8-year benchmark or at the end of the 

license term, while licensees that meet 

the 8-year benchmark could be exempt 

from a ‘‘keep what you use’’ rule. 

34. In addition, the FCC asks 

commenters to address the process by 

which it should reclaim unused 

spectrum under a ‘‘keep what you use’’ 

rule, and specifically, how such 

spectrum should be made available to 

new users. For example, the FCC seeks 

comment on whether parties that hold 

licenses for other spectrum in the same 

geographic area should be eligible to 

acquire the unused spectrum of another 

licensee after the Commission reclaims 

this spectrum and makes it available via 

competitive bidding. Similarly, the FCC 

seeks comment on whether the initial 

licensee should be eligible to bid on 

spectrum that it previously held as part 

of its original license. For both these 

alternatives, the FCC asks that 

commenters address how a particular 

policy would help promote service to 

the unserved area and whether there 

would be a risk of negative effects, such 

as a loss of potential competition. 

35. The FCC also proposes to apply its 

performance requirements on an EA and 

CMA basis only. Under such an 

approach, licensees with REAGs would 

be required to employ a signal level 

sufficient to provide adequate service to 

at least 25 percent of the geographic area 

of each EA in its license area within 

three years, 50 percent of the geographic 

area of each of these EAs within five 

years, and 75 percent of the geographic 

area of each of these EAs within eight 

years. REAG licensees that fail to meet 

the interim requirement in any EA 

within their license areas would lose a 

portion of the geographic area of that 

EA, such that the coverage of the 

remaining portion of the EA would be 

sufficient to meet the relevant 

benchmark. 

36. The FCC proposes that licensees 

demonstrate their compliance with 

benchmarks by filing maps and other 

supporting documents with the 

Commission. Would such information 

be sufficient to provide the FCC with 

easily identified areas, which could be 

reclaimed and reassigned via 

competitive bidding under a ‘‘keep what 

you use’’ approach? The FCC also asks 

for comment on whether it should 

reclaim the spectrum in unused areas in 

pre-defined units, such as counties. 

Those commenters that recommend a 

county-based ‘‘keep what you use’’ 

standard also should provide 

recommendations on how the FCC 

should apply this standard in the event 

a licensee serves only a small portion of 

a county, such as a highway or an area 

that is adjacent to a county that has 

more coverage by the licensee. The FCC 

seeks comment on these alternatives. 

37. In addition, assuming licensees 

with REAGs are required to meet the 

performance requirements on an EA 

basis, the FCC proposes that these 

licensees would have to demonstrate 

coverage for each EA within their 

license area. Licenses based on EAs or 

CMAs would have to demonstrate 

coverage for their respective geographic 

license areas. 

38. Finally, the FCC seeks comment 

on any other proposal that would 

similarly apply build-out requirements 

to these licensees more stringent than 

the substantial service standard applied 

under our current rules, and on how 

such proposals could be implemented. 

For example, should the FCC use 

population rather than geographic 

benchmarks? 

D. Incumbent Eligibility 

39. The FCC also seeks comment on 

the proposal presented by Media Access 

Project and the Ad Hoc Public Interest 

Spectrum Coalition (PISC) to encourage 

the entry of new competitors by 

excluding incumbent local exchange 

carriers (ILECs), incumbent cable 

operators, and large wireless carriers 

from eligibility for licenses in the 700 

MHz Band. In the alternative, PISC 

suggests that these incumbents only be 

eligible for licenses in the 700 MHz 

band through structurally separate 

affiliates, which it contends would 

make it possible to detect whether the 

incumbent receives more favorable 

treatment than unaffiliated providers. 

The FCC also seeks comment on 

whether it should encourage the entry of 

new broadband competitors through 

lesser restrictions on eligibility for 

obtaining new licenses, both at auction 

and in the secondary market. More 

particularly, it seeks comment on 

whether only parties not affiliated with 

existing wireline broadband service 

providers, including both DSL and cable 

providers, should be eligible to hold one 

or more blocks of the Upper 700 MHz 

C Block spectrum. Alternatively, should 

the FCC restrict eligibility for the Upper 

700 MHz C Block licenses to parties not 

affiliated with in-region wireline 

broadband service providers? Finally, as 

an alternative to limiting the parties 

eligible for new licenses in the 700 MHz 

Band, the FCC seeks comment on 

whether parties unaffiliated with 

incumbent wireline broadband service 

providers should receive a bidding 

credit on licenses in the Upper 700 MHz 

C Block. The FCC also seeks comment 

on how such new entrant bidding 

credits should be coordinated with 

existing bidding credits for small 

businesses, i.e., should new entrant 

credits be cumulative or exclusive of 

small business bidding credits. 

2. 700 MHz Guard Bands 

A. Band Plan Proposals 

40. The FCC tentatively concludes 

that it will not adopt the Broadband 

Optimization Plan (BOP), or other 

proposals, to the extent that they 

propose a reallocation of commercial 

spectrum for public safety use, or the 

reassignment of spectrum outside of the 

competitive bidding process. The FCC 

believes that Congress’s express 

instructions regarding the allocation of 

commercial and public safety spectrum 

in the 700 MHz Band statutorily 

prohibits it from reallocating this 

spectrum at this time, and it therefore 

cannot reallocate commercial spectrum 

for public safety use as proposed by the 

BOP and other plans. Similarly, the FCC 

believes that it is required to use a 

competitive bidding process to assign 

the spectrum that has been allocated for 

commercial use pursuant to these 

statutory instructions, and therefore 

must also deny the BOP and the critical 

infrastructure industries (CII) proposals 

on this basis. Even if the FCC possessed 

legal authority to adopt the BOP and CII 

proposals, the FCC believes these 

proposals are not in the public interest 

because they would assign additional 

spectrum to current licensees without 

competitive bidding. The FCC is also 

concerned that the BOP could result in 

interference between 700 MHz Band 

public safety and commercial 

operations. 

41. In Section 337(a) of the 

Communications Act, Congress 

mandated that the FCC allocate 

‘‘spectrum between 746 MHz and 806 

MHz, inclusive’’ (i.e., the Upper 700 

MHz Band) by designating 24 megahertz 

mmaher on DSK3CLS3C1PROD with $$_JOB

24244 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

of the spectrum ‘‘for public safety 

services’’ and 36 megahertz of the 

spectrum ‘‘for commercial use to be 

assigned by competitive bidding 

pursuant to Section 309(j).’’ As directed 

by Congress, the FCC allocated 24 

megahertz of this spectrum for public 

safety use at 764–776 MHz and 794–806 

MHz and 36 megahertz of this spectrum 

for commercial use at 746–764 MHz and 

776–794 MHz. The 36 megahertz of 

Upper 700 MHz Band spectrum 

allocated for commercial use included 

the Guard Bands. The FCC finds that the 

reallocation of commercial spectrum to 

public safety contemplated by the 

various Guard Bands proposals—in 

particular, the BOP, the Ericsson plan, 

and the revised Alcatel-Lucent plan— 

would appear to be inconsistent with 

Section 337. Even if Section 337(a) does 

not establish a permanent legislative bar 

on reallocating the Upper 700 MHz 

Band, the FCC believes that it would be 

contrary to Congress’ intent in enacting 

Section 337 to consider modifying the 

commercial and public safety 

allocations in the band before the 

licensees have had a meaningful 

opportunity to use unencumbered 

spectrum as initially envisioned (an 

opportunity that is unlikely to be fully 

available before the end of the DTV 

transition in 2009). 

42. In accordance with Section 337’s 

mandate that commercial spectrum in 

the 700 MHz Band be assigned by 

competitive bidding, the FCC 

established a licensing framework 

providing that mutually exclusive 

applications in this band would be 

subject to competitive bidding pursuant 

to Section 309(j) of the Act. This 

licensing scheme resulted in two 

auctions of the Guard Band licenses. 

The FCC finds that it lacks legal 

authority to assign to proponents of the 

BOP, or CII, additional commercial 

spectrum in the Upper 700 MHz Band 

absent competitive bidding, because any 

such action would be inconsistent with 

the auction requirements in Sections 

337(a). Section 337(a)(2) prescribes 

competitive bidding as the method of 

assigning commercial spectrum in the 

Upper 700 MHz Band. The FCC finds 

that for the same reasons that it cannot 

reallocate the band at this time, it 

cannot alter the method of assignment at 

this time. 

43. The FCC also believes that the 

BOP proposal for assigning licenses 

outside the competitive bidding process 

would not serve the public interest. The 

FCC seeks comment on its public policy 

concerns and any similar policy 

concerns, including its assessment that 

license assignment by auction is 

preferable to license assignment by 

private negotiation or other non-auction 

methods. The FCC also seeks comment 

on potential interference concerns, 

including the possibility that operations 

in the proposed internal public safety 

guard band could be undertaken by 

public safety licensees. In addition, the 

FCC seeks comment on the possibility 

that a C Block licensee might have to 

limit emissions at the lower portion of 

its authorized spectrum block in some 

manner, which could limit its ability to 

fully utilize its block and thereby limit 

service offerings. 

44. Access Spectrum/Pegasus 

Alternative Proposal. Acknowledging 

potential legal concerns with the BOP, 

especially with respect to the proposed 

reallocation of spectrum from 

commercial use to public safety 

services, Access Spectrum/Pegasus have 

submitted an alternative proposal to the 

Commission for modification of the 

Guard Bands in the Upper 700 MHz 

Band, which is discussed in detail 

above. In addition to the FCC’s 

discussion of this proposal above, it 

notes its tentative conclusion above that 

Section 337 and the public interest 

weigh against awarding 700 MHz 

spectrum outside of the competitive 

bidding process at this time. The FCC 

also notes, however, that Access 

Spectrum/Pegasus do not seek any 

additional spectrum in their alternative 

proposal, but instead seek to have the 

FCC modify their 1 megahertz paired A 

Block license to specify operations in a 

new 1 megahertz paired A Block license 

at different frequencies. The FCC seeks 

comment on whether the alternative 

proposal sufficiently addresses Section 

337 and public interest concerns 

regarding the assignment of spectrum 

outside of the competitive bidding 

process. The FCC also seeks comment 

on whether the licensed geographic 

areas in the new A Block should be the 

same as in the current A Block. 

B. Other Guard Band Issues 

45. The FCC seeks further, limited 

comment on what it should do if it 

decides to leave the existing Guard 

Bands substantially intact. For example, 

assuming the FCC modifies the public 

safety allocation, the B Block’s role as a 

critical juncture between adjacent 

commercial and public safety 

broadband spectrum would potentially 

be enhanced. After a reconfiguration of 

the public safety allocation, the B Block 

would rest between large commercial 

and public safety spectrum blocks, both 

of which are well-suited for broadband 

communications. In that context, the 

FCC could provide incumbent B Block 

licensees, as well as future licensees via 

auction, greater technical and 

operational flexibility than currently 

exists by revising its rules regarding 

restrictions on cellular architectures, 

and mandating low-site, low-power 

system architectures. Such initiatives 

could afford B Block licensees the 

previously unavailable potential to offer 

compatible broadband services within 

their paired 2 megahertz of spectrum, 

thereby creating additional 

opportunities for efficient and effective 

use of the spectrum. These 

opportunities could include entering 

into public/private partnerships with 

the adjacent public safety broadband 

operator(s), partnering with other 

commercial licensees to deploy 

commercial broadband systems, and 

attracting a broader pool of potential 

leasing partners interested in deploying 

broadband. 

46. Because the FCC is committed to 

resolving the issues raised in this 

FNPRM on an expedited basis, the 

Commission notes that if it were to 

retain the existing band plan, it could 

simultaneously require that the B Block 

licensees deploy low-site, low-power 

system architectures, and permit them 

to deploy cellular systems. At the same 

time, the FCC would likely request 

detailed comment on these and any 

additional prospects for enhancing the 

utility of the B Block in order to 

augment the record developed in 

response to the 700 MHz Guard Bands 

Notice. The FCC seeks comment on 

these ideas, specifically whether the 

low-site, low-power system architecture 

requirement, together with removal of 

the restriction on cellular architectures, 

is a positive step toward enhancing the 

B Block should the Commission 

ultimately decide not to adopt any 

proposal to eliminate or substantially 

modify the Guard Band B Block. 

47. The FCC also seeks comment on 

whether it should make changes to the 

A Block Guard Bands spectrum under 

the current band plan. For example, the 

FCC seeks seek comment on whether 

the technical flexibility it might allow 

for the B Block would also be possible 

in the A Block. Are low-site, low-power 

system architectures technically feasible 

for the upper Guard Bands A Block 

immediately adjacent to the Public 

Safety spectrum allocation? If not, 

would it nevertheless be useful to 

provide such flexibility for the lower 

Guard Bands A Block? With the lower 

A Block’s proximity to both the Lower 

700 MHz C Block and the Upper 700 

MHz C Block, certain technical 

modifications might improve 

compatibilities in the band. The FCC 

also seeks comment on whether, similar 

to its discussion above for the Guard 

Bands B Block, there would be a public 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24245 

interest benefit to allowing the current 

A Block licensees to include their 

spectrum in the auction inventory in a 

‘‘two-sided’’ auction. 

3. Competitive Bidding Procedures 

48. The FCC seeks comment on 

whether it should use limited 

information (or ‘‘anonymous bidding’’) 

procedures in the upcoming auction of 

new 700 MHz licenses, in order to deter 

anticompetitive behavior that may be 

facilitated by the release of information 

on bidder interests and identities. 

Current competitive bidding rules 

permit withholding information on 

bidder interests and identities prior to 

the close of bidding. Accordingly, the 

FCC can make a final decision regarding 

the procedures for the auction as part of 

the regular pre-auction process. The 

FCC seeks comment here in light of the 

potential importance of this band with 

respect to competition in broadband 

services and in order to assess whether 

the use of anonymous bidding should be 

a factor in determining the final band 

plan for new 700 MHz licenses. 

49. In prior auctions, the FCC has 

adopted procedures, contingent on preauction assessments of likely 

competition in the auction, for 

withholding public release until the 

close of the auction of: (1) Bidders’ 

license selections on their short form 

applications and the amount of their 

upfront payments; and (2) the identities 

of bidders placing bids. In the context 

of those prior auctions, the FCC noted 

that there may be potential harms as 

well as benefits from publicly revealing 

all information during the auction 

process. In this proceeding, the Ad Hoc 

Public Interest Spectrum Coalition 

asserts that anonymous bidding for new 

700 MHz licenses is critical to 

promoting competitive entry in wireless 

broadband. In contrast, United States 

Cellular Corporation contends that 

smaller auction participants need 

information about larger entities’ bids 

during the auction and that smaller 

auction participants may encounter 

difficulties with financing, if the FCC 

withholds the information during the 

auction. 

50. The FCC seeks comment on the 

balance of potential harms and potential 

benefits from releasing information on 

bidder identities and interests during 

the auction of new 700 MHz licenses. In 

recent auctions where the FCC has 

considered withholding information 

about bidder identities and interests 

during the auction, it has assessed likely 

competition in the auction and 

determined that, given the anticipated 

level of competition, the benefits of 

releasing the information outweighed 

the potential harms. However, if the 

potential harms of releasing the 

information are substantial enough, or 

the potential benefits of releasing the 

information so slight, it may be 

appropriate to withhold the information 

regardless of the likely level of 

competition. For this auction, the FCC 

seeks comment on whether the potential 

to use new 700 MHz licenses to create 

alternatives to existing broadband 

networks increases the benefits from 

anonymous bidding by making it harder 

for existing providers to identify and 

impede the efforts of potential new 

entrants to win. Does the lack of readily 

available technologies for use in the 

band, relative to existing broadband 

networks in other bands, reduce the 

potential benefit of using bidders’ 

identities to guess what technologies 

will be deployed? Given the potential 

harms and benefits from releasing 

information on bidder identities and 

interests during the auction of new 700 

MHz licenses, should the Commission 

make its decision regarding the release 

of the information contingent on an 

assessment of likely competition? If so, 

should the Commission change how it 

makes its pre-auction assessment of 

likely competition? 

51. The FCC also seeks comment on 

whether the potential use of anonymous 

bidding should be a factor in 

determining the final band plan. Would 

a band plan with a greater number of 

small licenses be more or less 

appropriate if bidders are able to bid 

anonymously for those licenses? 

Commenters should make clear what 

factors support their position on 

anonymous bidding, how these factors 

apply to this auction, and the extent to 

which these factors may depend upon 

the final band plan adopted. 

Commenters should address whether 

their views are dependent on whether 

the FCC conditions the implementation 

of such limits on a measure of the 

anticipated competitiveness of the 

auction, such as the eligibility ratio or 

a modified version of the eligibility 

ratio. 

4. 700 MHz Public Safety Spectrum 

52. The FCC tentatively concludes to 

redesignate the public safety wideband 

spectrum for broadband use consistent 

with a nationwide interoperability 

standard, and to prohibit wideband 

operations on a going forward basis. 

Further, should the FCC adopt this 

broadband approach, it tentatively 

concludes that the Commission should 

consolidate the existing narrowband 

allocations to the upper half of the 700 

MHz Public Safety Band, and locate 

broadband communications in the lower 

half of this band. In addition, the FCC 

tentatively concludes that it should 

establish an internal guard band 

between the narrowband and broadband 

allocations. The FCC also seeks 

comment on a limited number of issues 

relating to use of the 700 MHz public 

safety spectrum, should it reallocate the 

wideband spectrum to broadband use. 

A. Broadband 

53. The current distribution of 

channels in the 700 MHz Public Safety 

Band includes a mix of narrowband and 

wideband channels. The FCC tentatively 

concludes that providing broadband 

spectrum for advanced public safety 

communications would best serve its 

goal of enabling first responders to 

protect safety of life, health and 

property. While some commenters argue 

that the FCC should continue to allow 

public safety entities the flexibility to 

deploy either wideband or broadband 

applications, the FCC tentatively 

concludes that providing such 

flexibility could hinder efforts to deploy 

a nationwide, interoperable broadband 

network by perpetuating a balkanization 

of public safety spectrum licenses, 

networks, and technology deployment. 

Further, only through use of broadband 

networks could public safety leverage 

advanced commercial technologies and 

infrastructure to reduce costs and speed 

deployment, and enable the potential 

for priority access to commercial 

networks during emergencies. 

Accordingly, the FCC believes that only 

broadband applications consistent with 

a nationwide interoperability standard 

should be deployed in the current 

wideband allocation of the 700 MHz 

Band. The FCC thus tentatively 

concludes to reallocate spectrum 

previously designated for wideband use 

to broadband use only, and prohibit 

wideband operations on a going forward 

basis. The FCC seeks comment on these 

tentative conclusions. 

B. Band Plan Issues 

54. Having tentatively concluded that 

only broadband applications consistent 

with a nationwide interoperability 

standard may be deployed in the current 

wideband allocation for public safety in 

the 700 MHz Band, the FCC seeks to 

take further steps to optimize the band 

plan for this spectrum, essentially 

building upon the public safety-related 

proposals in the BOP and the record 

developed pursuant to the 700 MHz 

Guard Bands Notice and 700 MHz 

Public Safety Eighth Notice. 

Specifically, the FCC tentatively 

concludes that, assuming it decides to 

adopt this broadband approach, it will 

consolidate the existing narrowband 

mmaher on DSK3CLS3C1PROD with $$_JOB

24246 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

allocations to the upper half of the 700 

MHz Public Safety block, and will 

designate the lower half of the block for 

broadband operations. Additionally, it 

tentatively concludes that it will adopt 

a 1 megahertz internal guard band at the 

top of the resulting broadband 

allocation to buffer it from the 

narrowband allocation and thus prevent 

interference. 

55. In addition, the FCC seeks 

comment on whether it should revise 

the out-of-band emission (OOBE) limit 

required for Upper 700 MHz 

Commercial Services Band base stations 

to protect public safety operations in the 

band if it adopts the tentative 

conclusions discussed above. In 

particular, the FCC seeks comment on 

whether it should replace the existing 

limit of 76 + 10 log P applicable to 

emissions into the 700 MHz Public 

Safety spectrum with the 43 + 10 log P 

OOBE standard that protects 

commercial services in the 700 MHz 

Band. 

56. It also seeks comment on a limited 

number of related questions regarding: 

(1) Whether to allow limited use of the 

internal guard band in areas along the 

Canadian border to the extent that 

Canadian broadcasters cause 

interference to the relocated 

narrowband channels; (2) whether to 

adopt a transition plan, and what that 

plan should be; and (3) whether and 

how such transition should be funded. 

C. Power Limits for Public Safety 

Broadband 

57. The FCC has modified its power 

limit rules for the Upper and Lower 700 

MHz Commercial Services Band by 

implementing a PSD model for defining 

power limits, permitting increased 

power in rural areas, and permitting 

radiated power levels to be measured on 

an average, rather than peak, basis. This 

action will permit higher power and 

increased flexibility for 700 MHz 

Commercial Services Band licensees 

implementing wider band technologies, 

with certain measures in place to 

protect against any possible increased 

interference, especially to 700 MHz 

public safety users. 

58. The FCC also tentatively 

concludes to permit only broadband 

applications in the 700 MHz Public 

Safety Band consistent with a 

nationwide interoperability standard in 

the channels presently allocated for 

wideband. The FCC seeks comment on 

whether it is appropriate to provide the 

same flexibility to 700 MHz Public 

Safety broadband operations as that 

afforded 700 MHz Commercial Services 

Band licensees by implementing a PSD 

model for defining power limits, 

permitting increased power in rural 

areas, and permitting measurement of 

power levels on an average, versus peak, 

basis. The FCC also seeks comment on 

whether the technical restrictions 

adopted today for the 700 MHz 

Commercial Services Band with respect 

to interference protection, if applied to 

public safety broadband spectrum, will 

protect adjacent band operations. 

5. Frontline’s Proposal 

59. The FCC seeks comment on 

Frontline’s proposed ‘‘Public Safety 

Broadband Deployment Plan’’ and 

associated service rules. Under 

Frontline’s proposal, the FCC would 

alter the upper portion of the Upper 700 

MHz Commercial Services Band to 

designate a 10 megahertz ‘‘E Block’’ for 

a commercial licensee and impose 

specific conditions on that licensee 

requiring it to construct and operate a 

nationwide, interoperable broadband 

network for sharing with a national 

public safety licensee providing 

broadband service in the lower portion 

of the 700 MHz Public Safety spectrum. 

The ‘‘E Block’’ would consist of the 

paired 757–762 MHz and 787–792 MHz 

frequencies. The FCC also seeks 

comment on service rules proposed by 

Frontline. 

60. With respect to the newly created 

‘‘E Block,’’ Frontline proposes imposing 

the following obligations, among others, 

on this nationwide licensee: 

61. The ‘‘E Block’’ licensee would be 

required to construct a common, 

interoperable network infrastructure 

that can be used by both the public 

safety broadband network and the ‘‘E 

Block’’ licensee’s commercial network. 

The details of the network would be 

specified in a Network Sharing 

Agreement negotiated by the ‘‘E Block’’ 

licensee and the National Public Safety 

Licensee. 

62. The ‘‘E Block’’ licensee would be 

required to provide coverage to 75 

percent of the United States population 

within four years of the 700 MHz 

‘‘auction clearing date’’; provide 

coverage to 95 percent of the United 

States population within seven years; 

and provide coverage to 98 percent of 

the United States population within 10 

years. As regards Alaska, the licensee 

would be required to provide coverage 

to all Alaskan cities of 10,000 or more 

within four years of the 700 MHz 

auction clearing date. 

63. The ‘‘E Block’’ licensee would be 

responsible for managing and operating 

the public safety broadband network, 

and would be permitted to collect a 

reasonable network management fee. 

This fee, and the terms and conditions 

governing the ‘‘E Block’’ licensee’s 

management of the network, would be 

specified in the Network Sharing 

Agreement. 

64. The ‘‘E Block’’ licensee would be 

required to provide priority access to 

public safety broadband operations 

during times of emergency. These 

requirements would be specified in the 

Network Sharing Agreement. 

65. Frontline also sets forth several 

additional elements of its proposal. The 

term of the ‘‘E Block’’ license would be 

for 15 years, and would be subject to a 

renewal expectancy upon the 

completion of ‘‘substantial service.’’ 

Participation by public safety would be 

purely voluntary, and that public safety 

would remain free to build its own 

network in the 700 MHz spectrum. In 

addition, Frontline proposes that the ‘‘E 

Block’’ licensee be required to operate 

as a wholesale provider with respect to 

commercial use of the ‘‘E Block’’ 

spectrum. Frontline also proposes that 

the ‘‘E Block’’ licensee be required to 

provide open access to its network, 

allowing the attachment of any device to 

the network and permitting users to 

access services and content provided by 

unaffiliated parties. As proposed, this 

requirement would apply not only to 

the ‘‘E Block’’ license, but to all other 

licenses owned or controlled by the ‘‘E 

Block’’ licensee. Similarly, Frontline 

recommends that the ‘‘E Block’’ licensee 

be required to offer roaming to any 

provider with customers utilizing 

devices compatible with the ‘‘E Block’’ 

network, and that such obligation be 

extended to all spectrum holdings of the 

‘‘E Block’’ licensee. 

66. The FCC seeks comment on the 

proposal’s likely effects on both the 

commercial and public safety users in 

the 700 MHz Band, and whether it 

would be in the public interest for the 

FCC to adopt such a proposal, or 

alternatives to achieve the same or 

similar public interest goals. The FCC 

also seeks comment on whether, and to 

what extent, it should: (a) Adopt certain, 

but not all, elements of the Frontline 

proposal; (b) modify any elements of the 

proposal, adopt any additional 

requirements, or adopt any alternative 

requirements to achieve the same or 

similar public interest goals; and (c) 

consider alternative approaches to 

encourage public-private partnerships 

for sharing spectrum between public 

safety users and commercial licensees in 

the 700 MHz Band. 

67. The FCC seeks comment on the 

extent to which adoption of the 

Frontline, or similar, proposal should 

have an impact on its decisions 

regarding the Guard Bands. Under 

Frontline’s proposal, Guard Band B 

Block would be located between the 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24247 

new ‘‘E Block’’ and the public safety 

spectrum. The FCC seeks comment on 

whether the Guard Band B Block should 

be integrated with a new block of 

spectrum to be made available in the 

Upper 700 MHz Band for purposes of 

implementing the Frontline Plan or 

similar proposal. 

68. Similarly, the FCC seeks comment 

on the extent to which adoption of the 

Frontline, or similar, proposal should 

affect its decisions regarding the 

remainder of the commercial spectrum 

blocks in the Upper 700 MHz Band that 

it is required to auction. The FCC asks 

that Frontline’s proposal be evaluated 

within the context of the Commission’s 

other proposals expressed in the 

FNPRM regarding the size of spectrum 

blocks and geographic service areas, 

including a comparison of Frontline’s 

proposal that the 757–762 MHz and 

787–792 MHz spectrum be designated 

for the new ‘‘E Block.’’ If the FCC 

adopted the Frontline proposal, the 

amount of spectrum to be auctioned for 

commercial services pursuant to flexible 

service and technical rules in the Upper 

and Lower 700 MHz Band would 

decrease by ten megahertz, from 60 to 

50 megahertz. 

69. The FCC seeks comment as well 

on Frontline’s view that there is no need 

to impose any CALEA, E911, or similar 

obligations on the ‘‘E Block’’ licensee 

because it believes that retail service 

providers using the ‘‘E Block’’ spectrum 

will already be subject to those 

requirements. Should the FCC adopt 

any specific requirements applicable to 

retail service providers or equipment 

manufacturers in regard to the ‘‘E 

Block?’’ For example, should some or all 

public safety equipment operating on an 

‘‘E Block’’ built network be capable of 

accessing satellite communications 

(including handsets and other mobile or 

fixed receivers)? Should the FCC require 

the ‘‘E Block’’ licensee to incorporate 

satellite-based technology into its 

network infrastructure? 

70. The FCC notes Frontline’s view 

that the proposed ‘‘E Block’’ licensee 

and a potential national public safety 

licensee would have strong incentives to 

reach agreement on suitable terms for a 

lease and that the Commission should 

not attempt to adopt detailed rules to 

implement its proposal but should rely 

on a requirement that the ‘‘E Block’’ 

licensee negotiate in good faith. 

Frontline proposes that the FCC should 

leave to the ‘‘Network Sharing 

Agreement’’ negotiations the definition 

of ‘‘emergency’’ for purposes of the 

requirement that the ‘‘E Block’’ licensee 

provide priority access to affected 

public safety broadband operations 

during emergencies. 

71. The FCC tentatively concludes 

that if it adopted Frontline’s proposal or 

some similar proposal, it will need to 

impose conditions on the ‘‘E Block’’ 

license as well as the national public 

safety license to deal with the 

circumstance where the bidder winning 

the new ‘‘E Block’’ at auction and the 

national public safety licensee are 

unable to reach agreement on a Network 

Sharing Agreement. Successful 

negotiation of that agreement is a 

critical first step to achieving the 

benefits to public safety under the 

Frontline proposal. The FCC is 

concerned that under certain 

circumstances the parties may not be 

able to reach agreement, which could 

result in a significant delay in 

implementation. To avoid this result, 

the FCC tentatively concludes that it 

will not grant a license to the bidder 

winning the ‘‘E Block’’ at auction until 

the winning bidder files a Network 

Sharing Agreement with the 

Commission for approval. The FCC 

would also condition the national 

public safety license on the licensee 

submitting to binding arbitration in the 

event it cannot reach agreement with 

the ‘‘E Block’’ winner. If the winning 

bidder and the national public safety 

licensee are unable to reach agreement, 

they would be required to enter into 

binding arbitration to resolve 

outstanding issues. 

72. The FCC seeks comment on this 

tentative conclusion, and whether 

imposing such conditions would be an 

incentive for the parties to reach a 

suitable and speedy resolution in order 

to avoid arbitration. If the parties are 

unable to reach an agreement and thus 

have to submit to binding arbitration, 

would this condition then facilitate the 

ability of the parties to reach such an 

agreement? The FCC seeks comment on 

whether any particular requirements 

should be adopted in connection with 

such conditions, including a 

requirement that the parties report to 

the FCC on the status of the 

negotiations. The FCC also asks 

commenters to consider whether there 

are other conditions that should be 

placed on an ‘‘E Block’’ licensee to 

ensure that an agreement is reached 

quickly and in a manner that is 

satisfactory to public safety, or if there 

is additional oversight that the 

Commission should exercise. Should 

the FCC require that an agreement to be 

reached by a certain date? Should the 

FCC require status reports or other 

periodic reporting from the ‘‘E Block’’ 

licensee? If the FCC does not adopt a 

binding arbitration proposal, what 

should be the consequence for failing to 

reach agreement in a timely manner, or 

for otherwise failing to comply with the 

Network Sharing Agreement 

requirement? Should the FCC have 

authority to appoint board members to 

the governance of the ‘‘E Block’’ 

licensee? 

73. The FCC also has serious 

concerns, based on Frontline’s proposed 

requirements, about whether it should 

offer any bidding preferences, such as 

bidding credits, to applicants for the ‘‘E 

Block’’ license, based on their status as 

a small business, or designated entity. 

The FCC finds that the capital 

requirements for effective use of the 

proposed nationwide ‘‘E Block’’ license 

likely will be very high. In the past, the 

FCC has declined to adopt designated 

entity provisions for certain services, 

such as the direct broadcast satellite 

service and the digital audio radio 

service, which have extremely high 

implementation costs. 

74. The FCC’s concerns regarding the 

capital needed to implement a 

nationwide service are especially acute 

in this instance because the ‘‘E Block’’ 

licensee would be responsible for 

constructing a robust network to meet 

the needs of critical public safety 

service providers—and the public—in 

times of emergency. The FCC finds that 

in these circumstances, the public 

interest would not appear to favor 

giving applicants a preference when 

bidding for the ‘‘E Block’’ license based 

on their limited financial resources. 

75. The FCC finds that the proposed 

restriction on such a licensee’s ability to 

provide spectrum-based services 

directly to the public is also of concern 

when considering whether to offer such 

benefits. The FCC prohibits licensees 

from both receiving designated entity 

benefits and having wholesale 

agreements for more than fifty percent 

(50%) of the spectrum capacity of any 

license that they hold, which are 

defined as impermissible material 

relationships. In the event that the FCC 

offered bidding preferences with respect 

to such an ‘‘E Block’’ license, the 

existing rule plainly would preclude 

any licensee that is required to operate 

only as a wholesale provider from 

receiving designated entity benefits. For 

all these reasons, the FCC tentatively 

concludes that designated entity 

benefits for the ‘‘E Block’’ license 

proposed by Frontline, would not be 

available, and seeks comment on this 

tentative conclusion. 

76. The FCC also seeks comment on 

whether any service specific rules are 

needed to address what actions the 

Commission may or must take in the 

event that the ‘‘E Block’’ licensee 

encounters financial or other problems 

mmaher on DSK3CLS3C1PROD with $$_JOB

24248 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

8 47 CFR 1.200 et seq. 

9 See 47 CFR 1.1206(b)(2). 

10 47 CFR 1.1206(b). 

11 The RFA, see 5 U.S.C. 601–612, has been 

amended by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (‘‘SBREFA’’), 

Pub. L. No. 104–121, Title II, 110 Stat. 857 (1996). 

12 See 5 U.S.C. 603. Although we are conducting 

an IRFA at this stage in the process, it is foreseeable 

that ultimately we will certify this action pursuant 

to the RFA, because we anticipate at this time that 

any rules adopted pursuant to this Notice will have 

no significant economic impact on a substantial 

number of small entities. See 5 U.S.C. 605(b). 

that prevent compliance with any of its 

obligations, regarding build-out or other 

duties. Frontline contends that the 

Commission’s general rules regarding 

reclaiming and re-auctioning the 

spectrum are sufficient to address this 

possibility. The FCC seeks comment on 

whether the particular obligations 

proposed for the ‘‘E Block’’ would make 

additional provisions in the public 

interest. For example, should there be 

some special process for public safety 

entities or others to challenge the ‘‘E 

Block’’ licensee’s compliance with its 

public safety or wholesale obligations? 

Should the ‘‘E Block’’ license cancel 

automatically based on failure to 

comply with specified obligations? 

Should the FCC establish an unjust 

enrichment requirement to be paid in 

the event the Commission is unable to 

reclaim the license for any reason upon 

failure of the ‘‘E Block’’ licensee to 

comply with its obligations? If so, how 

should the amount of such a payment be 

calculated? If the FCC were to reclaim 

the license, could it also hold any 

network infrastructure built by the 

licensee in trust for public safety to 

avoid interruption of service to first 

responders? Alternatively, should the 

FCC provide for a rebate of a portion of 

the net bid amount paid by the ‘‘E 

Block’’ licensee at auction upon 

satisfaction of the conditions of the 

license and, if so, what should be the 

amount of such rebate? What other 

enforcement mechanisms might be 

appropriate? 

77. The FCC also seeks comment on 

Frontline’s proposal that the ‘‘E Block’’ 

licensee be required to operate a 

wholesale network. Frontline claims 

that this requirement would encompass 

freedom of equipment choice 

concerning the attachment of devices or 

multiple devices to the network. It also 

states that this proposal would provide 

non-discriminatory access, and that the 

‘‘E Block’’ licensee could not 

discriminate against any retail service 

provider, and would operate ‘‘as an 

open network available on a wholesale 

basis to a host of innovative service 

providers.’’ The FCC seeks comment on 

these issues. The FCC also seeks 

comment on proposals filed by Media 

Access Project and the Ad Hoc Public 

Interest Spectrum Coalition, which 

support a condition on licenses for at 

least 30 megahertz of 700 MHz 

Commercial Services spectrum that 

would require a licensee to provide 

‘‘open access,’’ including the right of a 

consumer to use any equipment, 

content, application or service on a nondiscriminatory basis. 

Ex Parte Presentations 

78. The rulemaking shall be treated as 

a ‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules.8 Persons making oral ex 

parte presentations are reminded that 

memoranda summarizing the 

presentations must contain summaries 

of the substance of the presentations 

and not merely a listing of the subjects 

discussed. More than a one or two 

sentence description of the views and 

arguments presented generally is 

required.9 Other requirements 

pertaining to oral and written 

presentations are set forth in § 1.1206(b) 

of the Commission’s rules.10

Comment Period and Procedures 

79. Pursuant to § § 1.415 and 1.419 of 

the Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS), (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

<bullet≤ Electronic Filers: Comments 

may be filed electronically using the 

Internet by accessing the ECFS: http:// 

www.fcc.gov/cgb/ecfs/ or the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Filers should 

follow the instructions provided on the 

website for submitting comments. 

<bullet≤ For ECFS filers, if multiple 

docket or rulemaking numbers appear in 

the caption of this proceeding, filers 

must transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

<bullet≤ Paper Filers: Parties who 

choose to file by paper must file an 

original and four copies of each filing. 

If more than one docket or rulemaking 

number appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

<bullet≤ The Commission’s contractor 

will receive hand-delivered or 

messenger-delivered paper filings for 

the Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

<bullet≤ Commercial overnight mail 

(other than U.S. Postal Service Express 

Mail and Priority Mail) must be sent to 

9300 East Hampton Drive, Capitol 

Heights, MD 20743. 

<bullet≤ U.S. Postal Service firstclass, Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

<bullet≤ Parties should send a copy of 

their filings to Paul D’Ari, Wireless 

Telecommunications Bureau, 445 12th 

Street, SW., Washington, DC 20554, or 

by e-mail to paul.d’ari@fcc.gov. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (Braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

Initial Regulatory Flexibility Act 

Analysis 

80. As required by the Regulatory 

Flexibility Act of 1980, as amended (the 

‘‘RFA’’),11 the Commission has prepared 

this Initial Regulatory Flexibility 

Analysis (‘‘IRFA’’) of the possible 

significant economic impact of the 

policies and rules proposed in the 

Further Notice of Proposed Rulemaking 

(‘‘FNPRM’’) on a substantial number of 

small entities.12 Written public 

comments are requested on this IRFA. 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24249 

13 See 5 U.S.C. 603(a). 

14 See 5 U.S.C. 603(a). 

15 In particular, this exemption extends to the 

requirements imposed by Chapter 6 of Title 5, 

United States Code, Section 3 of the Small Business 

Act (15 U.S.C. 632) and Sections 3507 and 3512 of 

Title 44, United States Code. Consolidated 

Appropriations Act 2000, Pub. L. No. 106–113, 113 

Stat. 2502, Appendix E, Sec. 213(a)(4)(A)–(B); see 

145 Cong. Rec. H12493–94 (Nov. 17, 1999); 47 

U.S.C.A. 337 note at Sec. 213(a)(4)(A)–(B). 

16 5 U.S.C. 603(b)(3). 

17 5 U.S.C. 601(6). 

18 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.’’ 

19 15 U.S.C. 632. 

20 See SBA, Programs and Services, SBA 

Pamphlet No. CO–0028, at page 40 (July 2002). 

21 Independent Sector, The New Nonprofit 

Almanac & Desk Reference (2002). 

22 5 U.S.C. 601(5). 

23 U.S. Census Bureau, Statistical Abstract of the 

United States: 2006, Section 8, pages 272–273, 

Tables 415 and 417. 

Comments must be identified as 

responses to the IRFA and must be filed 

by the deadlines for comments on the 

FNPRM provided in paragraph 297 of 

the item. The Commission will send a 

copy of the FNPRM, including this 

IRFA, to the Chief Counsel for Advocacy 

of the Small Business Administration 

(‘‘SBA’’).13 In addition, the FNPRM and 

IRFA (or summaries thereof) will be 

published in the Federal Register.14

81. 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,15 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 IRFA contains an analysis of this 

impact in connection with all spectrum 

that falls within the scope of this 

FNPRM, including spectrum in the 746– 

806 MHz Band. 

A. Need for, and Objectives of, the 

Proposed Rules 

82. The FNPRM encompasses issues 

pertinent to all three of our 700 MHz 

proceedings, as well as to Frontline’s 

proposal. First, based on the record 

developed in connection with the 700 

MHz Commercial Services Notice, the 

FNPRM proposes several band plans 

that include a mix of small, medium 

and large geographic area licenses. 

83. Second, the FNPRM also proposes 

to replace the current substantial service 

requirement with a geographic-based 

performance requirement, and seeks 

comment on this suggestion. 

84. Third, the FNPRM tentatively 

concludes that the Commission can 

adopt neither the Broadband 

Optimization Plan (BOP), nor the 

proposals to reallocate and reassign 

commercial spectrum to critical 

infrastructure industries (CII) or public 

safety entities, because we do not have 

the statutory authority to adopt key 

components of the proposals. 

Irrespective of the lack of statutory 

authority, the FNPRM also tentatively 

concludes that the BOP and CII 

proposals would not be in the public 

interest, because of the manner in which 

they propose to assign commercial 

licenses outside of a competitive 

bidding context, and because they could 

introduce an increased possibility of 

interference. 

85. Fourth, the FNPRM asks certain 

questions specifically related to the 

current Upper 700 MHz Guard Bands, in 

the event that the Commission 

maintains the current sizes and 

locations of either block of the Guard 

Bands licenses. The FNPRM also seeks 

comment on the alternative Guard 

Bands proposal recently submitted by 

Access Spectrum and Pegasus, as well 

as variations on that proposal. 

86. Fifth, the FNPRM 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 FNPRM 

tentatively concludes to redesignate the 

wideband spectrum to broadband use 

that would be consistent with a 

nationwide interoperability standard, 

and to prohibit wideband operations on 

a going forward basis. The FNPRM then 

seeks comment on a tentative 

conclusion to consolidate the 

narrowband spectrum to the top of the 

Public Safety Band, locate the 

broadband spectrum at the bottom of the 

Public Safety Band, and divide these 

segments with an internal guard band. 

Given this tentative conclusion, the 

FNPRM also seeks comment on a 

limited set of issues that would need to 

be resolved in order to effectuate the 

reconfiguration. This proposed 

reconfiguration would reduce the 

amount of spectrum necessary to 

separate and protect the public safety 

broadband and narrowband allocations, 

and could facilitate partnerships 

between public safety broadband 

operations and adjacent commercial 

broadband technologies, thereby 

optimizing the 700 MHz public safety 

band plan. 

87. Finally, the FNPRM seeks 

comment on the ‘‘Public Safety 

Broadband Deployment Plan’’ proposal 

submitted very recently by Frontline 

Wireless, which if adopted in some form 

potentially would affect decisions in all 

three proceedings. 

B. Legal Basis 

88. The legal authority for the actions 

proposed in this rulemaking are 

contained in sections 1, 2, 4(i), 5(c), 7, 

10, 201, 202, 208, 214, 301, 302, 303, 

307, 308, 309, 310, 311, 314, 316, 319, 

324, 332, 333, 336, 337, 614, 615, and 

710 of the Communications Act of 1934, 

as amended, 47 U.S.C. § § 151, 152, 

154(i), 155(c), 157, 160, 201, 202, 208, 

214, 301, 302, 303, 307, 308, 309, 310, 

311, 314, 316, 319, 324, 332, 333, 336, 

and 337. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply 

89. 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.16 The 

RFA generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ 17 In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act.18 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’’).19

90. Small Businesses. Nationwide, 

there are a total of approximately 22.4 

million small businesses, according to 

SBA data.20

91. Small Organizations. Nationwide, 

there are approximately 1.6 million 

small organizations.21

92. 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.’’ 

22 As of 2002, there were approximately 

87,525 governmental jurisdictions in the 

United States.23 This number includes 

38,967 county 

mmaher on DSK3CLS3C1PROD with $$_JOB

24250 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

24 13 CFR 121.201, NAICS code 517211. 

25 13 CFR 121.201, NAICS code 517212. 

26 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). 

27 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.’’ 

28 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). 

29 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.’’ 

30 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). 

31 Id. at 5343 ¿ 108. 

32 Id. 

33 Id. At 5343 ¿ 108 n.246 (for the 746–764 MHz 

and 776–704 MHz bands, the Commission is 

exempt from 15 U.S.C. 632, which requires Federal 

agencies to obtain Small Business Administration 

approval before adopting small business size 

standards). 

34 See ‘‘700 MHz Guard Bands Auction Closes: 

Winning Bidders Announced,’’ Public Notice, 15 

FCC Rcd 18026 (2000). 

35 See ‘‘700 MHz Guard Bands Auctions Closes: 

Winning Bidders Announced,’’ Public Notice, 16 

FCC Rcd 4590 (WTB 2001). 

36 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). 

37 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). 

38 See Reallocation and Service Rules for the 698– 

746 MHz Spectrum Band (Television Channels 52– 

59), Report and Order, 17 FCC Rcd 1022 (2002). 

39 Id. at 1087–88 ¿ 172. 

40 Id. 

41 Id. at 1088 ¿ 173. 

42 See Letter to Thomas Sugrue, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated August 10, 1999. 

43 See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 17 FCC Rcd 17272 (WTB 2002). 

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. 

93. Wireless Service Providers. The 

SBA has developed a small business 

size standard for wireless firms within 

the two broad economic census 

categories of ‘‘Paging’’ 24 and ‘‘Cellular 

and Other Wireless 

Telecommunications.’’ 25 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.26 Of this total, 804 firms had 

employment of 999 or fewer employees, 

and three firms had employment of 

1,000 employees or more.27 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.28 Of this 

total, 1,378 firms had employment of 

999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more.29 Thus, under this second 

category and size standard, the majority 

of firms can, again, be considered small. 

94. Under this FNPRM, any of the 

changes to the Commission’s rules 

which may occur as a result of the 

FNPRM would be limited to the 698– 

806 MHz spectrum band. Since this 

rulemaking proceeding applies to 

services in that band, this IRFA analyzes 

the number of small entities affected on 

a service-by-service basis. When 

identifying small entities that could be 

affected by the Commission’s new rules, 

this IRFA provides information 

describing auctions results, including 

the number of small entities that were 

winning bidders. However, the number 

of winning bidders that qualify as small 

businesses at the close of an auction 

does not necessarily reflect the total 

number of small entities currently in a 

particular service. The Commission 

does not generally require that licensees 

later provide business size information, 

except in the context of an assignment 

or transfer of control application where 

unjust enrichment issues are implicated. 

Consequently, to assist the Commission 

in analyzing the total number of 

potentially affected small entities, the 

Commission requests commenters to 

estimate the number of small entities 

that may be affected by any rule changes 

that might result from this FNPRM. 

95. 700 MHz Guard Band Licenses. In 

the 700 MHz Guard Band Order, the 

Commission adopted size standards for 

‘‘small businesses’’ and ‘‘very small 

businesses’’ for purposes of determining 

their eligibility for special provisions 

such as bidding credits and installment 

payments.30 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.31 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.32

SBA approval of these definitions is not 

required.33 An auction of 52 Major 

Economic Area (MEA) licenses 

commenced on September 6, 2000, and 

closed on September 21, 2000.34 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.35

96. Upper 700 MHz Band Licenses. 

The Commission released a Report and 

Order authorizing service in the Upper 

700 MHz band.36 An auction for these 

licenses, previously scheduled for 

January 13, 2003, was postponed.37

97. 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.38 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.39 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.40 Additionally, the Lower 

700 MHz Band has a third category of 

small business status that may be 

claimed for Metropolitan/Rural Service 

Area (MSA/RSA) licenses. The third 

category is entrepreneur, which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years.41 The SBA has approved 

these small size standards.42 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. Seventytwo of the winning bidders claimed 

small business, very small business or 

entrepreneur status and won a total of 

329 licenses.43 A second auction 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24251 

44 See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 18 FCC Rcd 11873 (WTB 2003). 

45 Id. 

46 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. 

47 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. 

48 U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Employment Size of 

Establishments for the United States: 2002,’’ Table 

2, NAICS code 517212. 

49 Id. 

50 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. 

51 13 CFR 121.201, NAICS code 334220. 

52 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. 

53 Id. An additional 18 establishments had 

employment of 1,000 or more. 

commenced on May 28, 2003, and 

closed on June 13, 2003, and included 

256 licenses: 5 EAG licenses and 476 

CMA licenses.44 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.45

98. 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.46 The SBA rules 

contain a small business size standard 

for cellular and other wireless 

telecommunications companies, which 

encompasses business entities engaged 

in wireless communications employing 

no more than 1,500 persons.47

According to Census Bureau data for 

2002, in this category there were 8,863 

firms that operated for the entire year.48

Of this total, 401 firms had 100 or more 

employees, and the remainder had 

fewer than 100 employees.49 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. 

99. Wireless Communications 

Equipment Manufacturers; Radio and 

Television Broadcasting and Wireless 

Communications Equipment 

Manufacturing. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in manufacturing 

radio and television broadcast and 

wireless communications equipment. 

Examples of products made by these 

establishments are: Transmitting and 

receiving antennas, cable television 

equipment, GPS equipment, pagers, 

cellular phones, mobile 

communications equipment, and radio 

and television studio and broadcasting 

equipment.’’ 50 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.51

According to Census Bureau data for 

2002, there were a total of 1,041 

establishments in this category that 

operated for the entire year.52 Of this 

total, 1,010 had employment of under 

500, and an additional 13 had 

employment of 500 to 999.53 Thus, 

under this size standard, the majority of 

firms can be considered small. 

D. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

100. Performance Requirements. The 

FNPRM proposes to replace the current 

substantial service requirement with a 

geographic-based performance 

requirement, and seeks comment on this 

suggestion. 

101. Incumbent Eligibility. The 

FNPRM seeks comment on a proposal to 

encourage the entry of new competitors 

by excluding incumbent local exchange 

carriers (ILECs), incumbent cable 

operators, and large wireless carriers 

from eligibility for licenses in the 700 

MHz Band. The FNPRM also seeks 

comment on whether incumbents 

should only be eligible for licenses in 

the 700 MHz band through structurally 

separate affiliates, which would make it 

possible to detect whether the 

incumbent receives more favorable 

treatment than unaffiliated providers. 

The FNPRM seeks comment on whether 

the Commission should encourage the 

entry of new broadband competitors 

through lesser restrictions on eligibility 

for obtaining new licenses, both at 

auction and in the secondary market. 

Finally, as an alternative to limiting the 

parties eligible for new licenses in the 

700 MHz Band, the FNPRM seeks 

comment on whether parties 

unaffiliated with incumbent wireline 

broadband service providers should 

receive a bidding credit on licenses in 

the Upper 700 MHz C Block, and how 

such new entrant bidding credits should 

be coordinated with existing bidding 

credits for small businesses (i.e., 

whether new entrant credits should be 

cumulative or exclusive of small 

business bidding credits). 

102. Anonymous Bidding. The 

FNPRM seeks comment on whether the 

Commission should use limited 

information (or ‘‘anonymous bidding’’) 

procedures in the upcoming auction of 

new 700 MHz licenses, in order to deter 

anticompetitive behavior that may be 

facilitated by the release of information 

on bidder interests and identities. 

103. Public Safety Broadband. The 

FNPRM tentatively concludes to 

redesignate the wideband spectrum to 

broadband use that would be consistent 

with a nationwide interoperability 

standard, and to prohibit wideband 

operations on a going forward basis. The 

Commission has issued no licenses for 

wideband channels. Furthermore, 

although two special temporary 

authorizations (STAs) have been issued 

for wideband operations, to the extent a 

public safety entity has constructed, 

deployed and is currently operating, as 

of the release date of the accompanying 

Report and Order, a wideband system 

pursuant to a grant of STA, and has 

reason to continue such operations 

beyond the current term of the STA, the 

FNPRM states that the Commission will 

work with such entity to extend such 

authority. The FNPRM also seeks 

comment on a tentative conclusion to 

consolidate the narrowband channels to 

the top of the public safety band, locate 

the broadband spectrum at the bottom of 

the public safety band, and divide these 

segments with an internal guard band. 

mmaher on DSK3CLS3C1PROD with $$_JOB

24252 Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 

54 5 U.S.C. 603(c)(1)–(4). 

55 See, e.g., DirecTV/EchoStar Comments in WT 

Docket 06–150 at 9; Navajo Nation Comments in 

WT Docket 06–150 at 2–3; RCA Comments in WT 

Docket 06–150 at 8–10; Vermont Department of 

Public Service, et al. Comments in WT Docket 06– 

150 at 5–8. The Navajo Nation, RCA, and the 

Vermont Department of Public Service, et al. 

favorably discuss both benchmarks and a ‘‘keepwhat-you-use’’ approach. 

56 See AT&T Comments in WT Docket 06–150 at 

12–13; CTIA Comments in WT Docket 06–150 at 10; 

Dobson Comments in WT Docket 06–150 at 5; Leap 

Comments in WT Docket 06–150 at 10. 

57 See, e.g., Aloha Comments in WT Docket 06– 

150 at 2; Blooston Comments in WT Docket 06–150 

at 3; Dobson Comments in WT Docket 06–150 at 3; 

Frontier Comments in WT Docket 06–150 at 4; 

NTCA Comments in WT Docket 06–150 at 3–5; RCA 

Comments in WT Docket 06–150 at 3–4; RTG 

Comments in WT Docket 06–150 at 4–5. 

These tentative conclusions may entail 

additional reporting, recordkeeping or 

other compliance efforts by existing 

public safety entities. The FNPRM does 

not otherwise propose any additional 

reporting, recordkeeping or other 

compliance requirements. 

104. Frontline Proposal. The FNPRM 

seeks comment on Frontline’s proposed 

‘‘Public Safety Broadband Deployment 

Plan.’’ This plan would alter the upper 

portion of the band plan and service 

rules in order to auction a single 

nationwide 10-megahertz license (a new 

‘‘E Block’’). The ‘‘E Block’’ licensee 

would be required to meet certain buildout benchmarks, and would be required 

to provide priority access for public 

safety broadband operations during 

times of emergency as specified in a 

Network Sharing Agreement. Under the 

proposal, the ‘‘E Block’’ licensee would 

be required to operate as a wholesale 

provider with respect to commercial use 

of the ‘‘E Block’’ spectrum. It also would 

be required to provide open access to its 

network, allowing the attachment of any 

device to the network and permitting 

users to access services and content 

provided by unaffiliated parties. In 

addition, Frontline’s proposal would 

require the ‘‘E Block’’ licensee to offer 

roaming to any provider with customers 

utilizing devices compatible with the ‘‘E 

Block’’ network, with such obligation 

extended to all spectrum holdings of the 

‘‘E Block’’ licensee. Frontline’s proposal 

also would require the ‘‘E Block’’ 

licensee to operate only as a wholesale 

provider with respect to commercial use 

of the ‘‘E Block’’ license, i.e., it must 

have wholesale agreements for 100 

percent of its spectrum capacity. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities and 

Significant Alternatives Considered 

105. The RFA requires an agency to 

describe any significant, specifically 

small business, alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): ‘‘(1) the establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance and reporting requirements 

under the rule for such small entities; 

(3) the use of performance rather than 

design standards; and (4) an exemption 

from coverage of the rule, or any part 

thereof, for such small entities.’’ 54

106. Performance Requirements. 

Commenters who are small carriers 

could be found among commenters who 

supported both a substantial service 

requirement and a ‘‘keep what you use’’ 

framework. Some small CMRS providers 

recommended a combination of both 

population- and geography-based 

construction benchmark in the context 

of a ‘‘keep-what-you-use’’ approach.55

The FNPRM proposes to replace the 

current substantial service requirement 

with a geographic-based performance 

requirement, and seeks comment on this 

suggestion. 

107. By establishing clear 

benchmarks, the Commission would 

provide small licensees with regulatory 

certainty regarding the requirements 

that they must meet or, if they do not, 

permit other providers to gain access to 

the spectrum to provide services to 

consumers. The adoption of more 

stringent benchmarks also would 

complements the Commission’s 

determination to auction additional 

licenses based on smaller geographic 

areas to promote access to spectrum and 

the provision of service, especially in 

rural areas. 

108. The Commission recognizes that 

the existing substantial service standard 

could allow providers, including small 

carriers, additional flexibility with 

regard to their development and 

deployment of certain services.56 The 

Commission determines, however, that 

given the excellent propagation 

characteristics of this spectrum, the 

benefits of service being offered before 

the end of the license term, and the 

public interest that would be served by 

ensuring additional service in the more 

rural and remote areas of this country, 

more rigorous requirements may be 

appropriate for these 700 MHz 

Commercial Services licenses.57

109. Incumbent Eligibility. The 

proposals to prevent incumbents from 

being eligible to participate in the 700 

MHz auctions can benefit small entities 

to the extent that they find less 

competition at auction from large 

entities such as established incumbent 

licensees, including wireline providers. 

Additionally, the proposal to provide 

bidding credits with regard to the Upper 

700 MHz C Block for parties unaffiliated 

with incumbent wireline broadband 

service providers could encourage new 

entry by small entities. 

110. Anonymous Bidding. Smaller 

auction participants can benefit from 

having access to information about 

larger entities’ bids during the auction, 

and smaller auction participants may 

encounter difficulties with financing if 

the Commission withholds the 

information during the auction. 

However, the potential to use new 700 

MHz licenses to create alternatives to 

existing broadband networks increases 

the benefits from anonymous bidding by 

making it harder for existing providers 

to identify and impede the efforts of 

potential new entrants to win. 

Accordingly, in seeking comment on 

whether to require anonymous bidding 

for 700 MHz auctions, the Commission 

balances the difficulties it may cause to 

smaller auction participants, against the 

opportunities for new entrants— 

including small entities—that may 

result from anonymous bidding. 

111. 700 MHz Band Plan Proposals. 

The FNPRM includes several proposals 

to reconfigure the 700 MHz Band plan. 

Under any revised band plan, the 

Commission seeks comment on whether 

the spectrum block adjacent to the 

Public Safety Band’s lower half would, 

pursuant to another tentative 

conclusion, be responsible for funding 

the reconfiguration of the public safety 

spectrum with the narrowband channels 

at the upper end and a broadband 

allocation at the lower end. This 

proposal would, if adopted, impose 

additional economic burdens on any 

small business that procured the 

spectrum block adjacent to the Public 

Safety Band’s proposed broadband 

allocation. 

112. The FNPRM also proposes to 

license the 700 MHz Band using a mix 

of small, medium and large geographic 

areas. These proposed service area 

definitions should benefit small 

businesses, because they would enhance 

the mix of licenses to be made available 

in the 700 MHz Band, and are consistent 

with the goals of providing greater 

access to spectrum for small providers 

and parties in rural areas, and 

improving the opportunity for a wider 

range of potential licensees to access 

this spectrum. 

113. Public Safety Broadband. The 

FNPRM tentatively concludes to 

reallocate the wideband spectrum to 

broadband use that would be consistent 

with a nationwide interoperability 

mmaher on DSK3CLS3C1PROD with $$_JOB

Federal Register / Vol. 72, No. 84 / Wednesday, May 2, 2007 / Proposed Rules 24253 

standard, and prohibit wideband 

operations 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, 

would enable partnerships with 

commercial licensees in adjacent 

broadband spectrum. As a result, the 

proposed band plan would ultimately 

enable public safety entities to utilize 

the 700 MHz spectrum in a more costeffective and spectrally efficient manner 

to address their homeland security and 

emergency response roles. Because the 

Commission does not anticipate that the 

proposal 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. 

114. The FNPRM also seeks comment 

on its tentative conclusion to 

consolidate the narrowband spectrum to 

the top of the public safety band and 

locate the broadband spectrum at the 

bottom of the public safety band, in 

light of the potentially significant 

benefits such reconfiguration would 

afford the public safety community. The 

alternative would be to retain the 

existing band plan. The FNPRM seeks 

comment on how to implement 

reconfiguration of the narrowband 

channels with minimum disruption to 

incumbent operations. The FNPRM 

invites comment on an appropriate 

transition mechanism, including how to 

accommodate public safety operations 

in the border areas with Canada and 

Mexico, and the costs of relocation and 

how such costs will be covered. The 

Commission expects that the number of 

entities impacted and expected cost of 

reconfiguration should be relatively 

minor. To assist the Commission in its 

analysis, however, commenters are 

requested to provide information 

regarding the number of narrowband 

radios that are deployed, as well as the 

number of radios that are in active use, 

and thus would be affected by the 

proposed changes to the 700 MHz 

public safety band plan as described in 

the FNPRM. The FNPRM recognizes 

that the public safety community’s 

ability to fund the reconfiguration may 

be limited. Thus, in addition to 

considering whether public safety 

should pay for its own relocation costs, 

the FNPRM seeks comment on several 

alternatives, including whether to 

impose funding requirements on 700 

MHz commercial licensees, and whether 

Federal or other grant monies could be 

used. In the event the Commission 

determines to license the broadband 

allocation to a nationwide public safety 

broadband licensee, the FNPRM also 

invites comment on whether that 

licensee should be assigned 

responsibility for funding the 

reconfiguration. 

115. Although the economic burden 

on public safety to effectuate 

reconfiguration is expected to be 

relatively small, the FNPRM will 

develop a record on the true costs that 

would be implicated. The Commission 

remains open to considering 

alternatives, however, should an 

alternative be stated in comments that 

would reach our objectives and 

minimize the impact on public safety 

entities. 

116. Frontline Proposal. In the 

FNPRM, the Commission seeks 

comment on Frontline’s proposed 

‘‘Public Safety Broadband Deployment 

Plan.’’ Although Frontline proposes that 

the Commission offer bidding credits to 

applicants based on their status as a 

small business, the Commission 

tentatively concludes in the FNPRM 

that it should not offer any bidding 

preferences, such as bidding credits, to 

applicants for the ‘‘E Block’’ license. 

The FNPRM states, however, that the 

public interest would not appear to 

favor giving applicants a preference 

when bidding for the ‘‘E Block’’ license 

based on their limited financial 

resources, as the Commission does 

when it offers bidding credits to small 

businesses in these circumstances. The 

Commission stated that its concerns 

regarding the capital needed to 

implement a nationwide service are 

especially acute in this instance, 

because the ‘‘E Block’’ licensee would 

be responsible for constructing a 

network to meet the needs of critical 

public safety providers. The 

Commission seeks comment on this 

tentative conclusion. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

117. None. 

Ordering Clauses 

118. It is further ordered pursuant to 

Sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 

208, 214, 301, 302, 303, 307, 308, 309, 

310, 311, 314, 316, 319, 324, 332, 333, 

336, 337, 614, 615, and 710 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 152, 154(i), 

155(c), 157, 160, 201, 202, 208, 214, 301, 

302, 303, 307, 308, 309, 310, 311, 314, 

316, 319, 324, 332, 333, 336, and 337, 

that this further notice of proposed 

rulemaking 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, WT Docket No. 96– 

86 and PS Docket No. 06–229 IS 

ADOPTED. 

119. It is further ordered that pursuant 

to applicable procedures set forth in § §

1.415 and 1.419 of the Commission’s 

Rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on the 

further notice of proposed rulemaking 

on or before May 23, 2007 and reply 

comments on or before May 30, 2007. 

120. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, SHALL SEND a 

copy of this further notice of proposed 

rulemaking, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

121. It is further ordered that the 

Commission shall send a copy of this 

further notice of proposed rulemaking 

in a report to be sent to Congress and 

the General Accounting Office pursuant 

to the Congressional Review Act, 5 

U.S.C. 801(a)(1)(A). 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E7–8440 Filed 5–1–07; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition to List the Sand Mountain Blue 

Butterfly (Euphilotes pallescens ssp. 

arenamontana) as Threatened or 

Endangered with Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12-month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce our 

12-month finding on a petition to list 

the Sand Mountain blue butterfly 

(Euphilotes pallescens arenamontana) 

as threatened or endangered under the 

Endangered Species Act of 1973, as 

amended (Act). After a thorough review 

of all available scientific and 

commercial information, we find that 

the petitioned action is not warranted. 

We ask the public to continue to submit 

to us any new information concerning 

mmaher on DSK3CLS3C1PROD with $$_JOB