26032 Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Rules and Regulations 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: April 21, 2008. 

David I. Maurstad, 

Federal Insurance Administrator of the 

National Flood Insurance Program, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E8–10336 Filed 5–7–08; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 27 

[WT Docket Nos. 03–66; 03–67; 02–68; IB 

Docket No. 02–364; ET Docket No. 00–258; 

FCC 08–83] 

Facilitating the Provision of Fixed and 

Mobile Broadband Access, 

Educational and Other Advanced 

Services in the 2150–2162 and 2500–

2690 MHz Bands; Reviewing of the 

Spectrum Sharing Plan Among NonGeostationary Satellite Orbit Mobile 

Satellite Service Systems in the 1.6/2.4 

GHz Bands 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; declaratory ruling. 

SUMMARY: In this document, the 

Commission continues its efforts to 

transform its rules and policies 

governing the licensing of the 

Educational Broadband Service (EBS) 

and the Broadband Radio Service (BRS) 

in the 2495–2690 MHz (2.5 GHz) band, 

with respect to petitions for 

reconsideration filed in response to the 

Order on Reconsideration and Fifth 

Memorandum Opinion and Order and 

Third Memorandum Opinion and Order 

and Second Report and Order (Big LEO 

Order on Reconsideration and AWS 5th 

MO&O and BRS/EBS 3rd MO&O and 

2nd R&O). Also, the Commission’s 

actions in this proceeding further refine 

its rules to enable licensees to deploy 

new and innovative wireless services in 

the 2.5 GHz band. We believe that these 

actions will facilitate the promotion of 

broadband service to all Americans. 

DATES: Effective June 9, 2008, except for 

§ 27.1221(f), which contains information 

collection requirements that have not 

been approved by the Office of 

Management and Budget (OMB). The 

FCC will publish a document in the 

Federal Register announcing the 

effective date for that section. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. A copy of any 

comments on the Paperwork Reduction 

Act information collection requirements 

contained herein should be submitted to 

Judith B. Herman, Federal 

Communications Commission, Room 1–

B441, 445 12th Street, SW., Washington, 

DC 20554 or via the Internet at JudithB.Herman@fcc.gov. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding the Big 

LEO Third Order on Reconsideration 

and Sixth Memorandum Opinion and 

Order, please contact Howard Griboff, 

Policy Division, International Bureau, 

Federal Communications Commission, 

445 12th Street, SW., Washington, DC 

20554, at 202–418–0657 or via the 

Internet at Howard.Griboff@fcc.gov or 

Jamison Prime, Policy and Rules 

Division, Office of Engineering and 

Technology, Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554, at 202–418–

7474 or via the Internet at 

Jamison.Prime@fcc.gov. For further 

information concerning the BRS/EBS 

Fourth Memorandum Opinion and 

Order and Declaratory Ruling contact 

John Schauble, Deputy Chief, 

Broadband Division, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554, at 

(202) 418–0797 or via the Internet to 

John.Schauble@fcc.gov. For additional 

information concerning Paperwork 

Reduction Act information collection 

requirements contained in this 

document, contact Judith B. Herman at 

(202) 418–0214, or via the Internet at 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Third 

Order on Reconsideration and Sixth 

Memorandum Opinion and Order and 

Fourth Memorandum Opinion and 

Order (Big LEO 3rd Order on 

Reconsideration and AWS 6th MO&O 

and BRS/EBS 4th MO&O) and 

Declaratory Ruling, FCC 08–83, adopted 

on March 18, 2008 and released on 

March 20, 2008. The full text of this 

document, including attachments and 

related documents, is available for 

public inspection and copying during 

normal business hours in the FCC 

Reference Information Center, Room 

CY–A257, 445 12th Street, SW., 

Washington, DC 20554. The complete 

text of these documents and related 

Commission documents may be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc. (BCPI), Portals II, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, (202) 488–5300 

or (800) 387–3160, contact BCPI at its 

Web site: http://www.bcpiweb.com. 

When ordering documents from BCPI, 

please provide the appropriate FCC 

document number, for example, FCC 

08–83. The complete text of these 

documents is also available on the 

Commission’s Web site at http:// 

wireless.fcc.gov/edocs_public/ 

attachment/FCC–08–83A1doc. This full 

text may also be downloaded at: 

http://wireless.fcc.gov/releases.html. 

Alternative formats (computer diskette, 

large print, audio cassette, and Braille) 

are available by contacting Brian Millin 

at (202) 418–7426, TTY (202) 418–7365, 

or via e-mail to bmillin@fcc.gov. 

Summary 

I. Introduction and Executive Summary 

1. In this Big LEO 3rd Order on 

Reconsideration and AWS 6th MO&O 

and Order and BRS/EBS 4th MO&O, the 

Commission takes the following actions 

with respect to petitions for 

reconsideration filed in response to the 

Big LEO Order on Reconsideration and 

AWS 5th MO&O and BRS/EBS 3rd 

MO&O and 2nd R&O: 

• Grant a petition, in part, by 

adopting the part 1, subpart Q 

competitive bidding rules for future BRS 

auctions, seeking further comment on 

rules for future licenses for EBS 

spectrum, and directing WTB to review 

inventory and schedule auction(s) of 

unassigned BRS spectrum as soon as 

practicable. 

• Adopt the small business size 

standards and bidding credits proposed 

in the BRS/EBS FNPRM (‘‘small 

business’’—an entity with attributed 

average annual gross revenues not 

exceeding $40 million for the preceding 

three years; ‘‘very small business’’—an 

entity with attributed average annual 

gross revenues not exceeding $15 

million for the same period; and an 

‘‘entrepreneur’’—an entity with 

attributed annual average gross revenues 

not exceeding $3 million for the same 

period). 

• Deny a petition requesting that the 

Commission permit licensees to selftransition before January 21, 2009, the 

deadline for proponents to file an 

Initiation Plan with the Commission. 

• Grant a petition asking the 

Commission to correct the inconsistency 

between the BRS/EBS 3rd MO&O and 

the text of § 27.1236(b)(6), and on the 

Commission’s own motion, change 

references in §§ 27.1231(f), 27.1236(a), 

27.1236(b)(1) and 27.1236(b)(6) to dates 

certain. 

• Deny as moot a petition requesting 

that the Commission clarify the 

requirements for multichannel video 

programming distribution (MVPD) 

operators seeking to opt out of the 

transition. 


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Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Rules and Regulations 26033 

• Deny a petition seeking 

reconsideration on the effect of MVPD 

opt-out on adjacent licensees with 

overlapping Geographic Service Areas 

(GSAs). 

• Grant a petition asking the 

Commission to modify the height 

benchmarking rule to establish 

deadlines for compliance. 

• Grant a petition asking the 

Commission to modify the out-of-band 

emissions rule to establish deadlines for 

compliance. 

• Grant a petition asking the 

Commission to modify the out-of-band 

emissions rule to provide that out-ofband emissions are to be measured from 

the outermost edge of the channels 

when two or more channels are 

combined. 

• Deny a petition and reaffirm that 

only first adjacent channel licensees 

may file an interference complaint 

concerning adjacent channel 

interference. 

• Deny a petition and affirm the 

Commission’s decision regarding out-ofband emissions for mobile digital 

stations. 

• Deny a petition asking to establish 

different deadlines for user stations to 

cure interference where an existing base 

station suffers interference from an 

outdoor antenna user station. 

• Grant a petition and allow licensees 

to maintain existing operations posttransition in the mid-band segment 

(MBS) at 2572–2614 MHz, even if such 

operations exceed the current ¥73.0 

dBW/m2 contour limit. 

• Deny a petition asking the 

Commission to adopt technical 

standards should it become necessary to 

‘‘split the football’’ to determine each 

licensee’s GSA. 

• Grant a petition and permit BRS 

Channels No. 1 and 2/2A licensees to 

operate simultaneously in the 2150–

2160/62 MHz and 2496–2690 MHz 

bands until every subscriber is relocated 

to the 2496–2690 MHz band. 

• Deny a petition asking the 

Commission to provide greater 

protection to BRS Channel No. 1 

operations by reducing the power flux 

density (PFD) radiated from the Mobile 

Satellite Service (MSS) in the 2496–

2500 MHz band. 

• Deny a petition and affirm the use 

of splitting the football for BRS 

Channels No. 2 and 2A licensees. 

• Deny petitions concerning overlaps 

between grandfathered EBS E and F 

Group licensees and co-channel BRS E 

and F Group licensees and affirm the 

existing rule. 

• Deny a petition asking for 

procedural changes to the 90-day 

negotiation period for significant GSA 

overlaps (more than 50 percent) 

between grandfathered EBS E and F 

Group channel licensees and incumbent 

BRS E and F Group channel licensees. 

• Grant a petition and reinstate a Gulf 

of Mexico Service Area. 

• Establish the Gulf of Mexico 

boundary 12 nautical miles from the 

shore. 

• Apply the existing technical rules 

to the Gulf of Mexico Service Area. 

• Grant a petition and affirm that EBS 

excess capacity leases executed before 

January 10, 2005, are limited to 15 

years. 

• Deny a petition relating to pre-1998 

legacy, video-only excess capacity 

leases but affirm that leases executed 

before January 10, 2005, are limited to 

15 years. 

• Grant a petition and amend rules to 

permit lessees to offer EBS licensees/ 

lessors the actual equipment used or 

comparable equipment on lease 

termination. 

• Deny a petition asking that 

licensees be permitted to demonstrate 

substantial service based on pastdiscontinued service. 

• Grant a petition asking for a new 

safe harbor for heavily encumbered or 

highly truncated Basic Trading Areas 

(BTAs) and GSAs. 

• Grant a petition seeking minor 

changes in the EBS eligibility rule to 

conform it to other changes made by the 

Commission. 

• Grant a petition asking the 

Commission to adopt a rule that clarifies 

that commercial EBS licensees are not 

subject to educational programming 

requirements or the special EBS leasing 

restrictions. 

• Deny a petition asking the 

Commission to reinstate pending 

mutually exclusive applications for new 

EBS stations. 

• Grant in part requests for 

declaratory ruling and clarify how the 

splitting the football process for 

determining GSAs works with respect to 

licenses that were expired on January 

10, 2005. 

II. BRS/EBS Fourth Memorandum 

Opinion and Order 

A. Licensing Unassigned Spectrum in 

the Band 

2. In the BRS/EBS 4th MO&O, with 

respect to licensing unassigned 

spectrum in the band, the Commission 

adopts rules providing that new licenses 

for unassigned BRS spectrum will be 

assigned by BTA, with each license 

authorizing access for all BRS spectrum 

not otherwise assigned either at the time 

of licensing or in the future. Transitions 

in adjacent BTAs will be protected by 

the requirements in our technical rules 

that new BTA licensees operate 

pursuant to the post-transition band 

plan and provide protection to adjacent 

operations. We will require new 

licensees to operate pursuant to the new 

band plan. This requirement will 

protect existing licensees by ensuring 

that any future high-power video 

operations are restricted to the MBS. 

B. BRS Competitive Bidding Rules 

3. With respect to the assignment of 

new BRS licenses, we adopt the 

competitive bidding rules set forth in 

part 1, subpart Q, of the Commission’s 

rules, consistent with the bidding 

procedures that have been employed in 

many previous auctions. Specifically, 

we will adopt the part 1 rules governing, 

among other things, competitive bidding 

design, designated entities, application 

and payment procedures, collusion 

issues, and unjust enrichment. We note 

that such rules would be subject to any 

modifications by the Commission in our 

ongoing part 1 proceeding. In addition, 

consistent with current practice, matters 

such as the appropriate competitive 

bidding design, minimum opening bids 

and reserve prices, will be determined 

by the Wireless Telecommunications 

Bureau pursuant to its delegated 

authority. 

4. With respect to bidding credits, we 

adopt the proposal contained in the 

BRS/EBS FNPRM to define three 

categories: ‘‘small business’’—an entity 

with average annual gross revenues not 

exceeding $40 million for the preceding 

three years; ‘‘very small business’’—an 

entity with average gross revenues not 

exceeding $15 million for the same 

period; and ‘‘entrepreneur’’—an entity 

with average gross revenues not 

exceeding $3 million for the same 

period. We also adopt the proposal to 

provide qualifying ‘‘small businesses’’

with a bidding credit of 15%, qualifying 

‘‘very small businesses’’ with a bidding 

credit of 25%; and qualifying 

‘‘entrepreneurs’’ with a bidding credit of 

35%, consistent with § 1.2110(f)(2) of 

the Commission’s rules. 

C. Transition 

5. We reaffirm our decision that a 

licensee may not self-transition before 

January 21, 2009 and reiterate that a 

proponent-driven transition is the most 

efficient method of transitioning a BTA. 

In particular, we find that early selftransitions would complicate the 

transition process for the proponent and 

would not provide sufficient benefits to 

the self-transitioning licensee to offset 

those additional complications. 

6. We grant a petition asking the 

Commission to correct the inconsistency 


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between the BRS/EBS 3rd MO&O and 

the text of § 27.1236(b)(6), and on the 

Commission’s own motion, change 

references in §§ 27.1231(f), 27.1236(a), 

27.1236(b)(1) and 27.1236(b)(6) to dates 

certain. Also, we amend §§ 27.1231(f) 

and 27.1236(a), 27.1236(b)(1), and 

27.1236(b)(6) to specify dates certain. 

Thus, §§ 27.1231(f) and 27.1236(a) 

reference January 21, 2009, the date the 

Initiation Plan must be filed with the 

Commission; § 27.1236(b)(1) references 

April 21, 2009, the date a selftransitioning licensee must notify the 

Commission; and § 27.1236(b)(6) 

references October 20, 2010, the date 

self-transitions must be completed. 

Because the time line for self-transitions 

parallels the timeline for proponentdriven transitions, we note that 

proponent-driven transitions must also 

be completed on or before October 20, 

2010, unless stayed pending alternative 

dispute resolution. 

D. Multichannel Video Programming 

Distributors (MVPD) Opt-Out 

7. We dismiss as moot a petition for 

reconsideration asking us to adopt 

additional requirements for MVPD optout waiver requests because, at this 

point, such changes are unnecessary. 

The last date for filing requests to opt 

out of the transition plan was April 30, 

2007, and that date has passed. To the 

extent the petitioner contends that a 

specific showing is defective, we will 

consider its arguments in the context of 

any opposition or petitions filed against 

specific waiver requests. 

8. We also conclude that foreclosing 

an opt-out in the case of overlapping 

GSAs is unnecessary. Instead, the 

transitioning operator and the nontransitioning operator may resolve this 

situation among themselves or the 

transitioning licensee may file 

comments for Commission 

consideration in response to the nontransitioning operator’s opt-out waiver 

request. 

E. Technical Issues 

9. In the BRS/EBS 4th MO&O, we take 

the following actions with respect to the 

technical rules: 

• Height Benchmarking Rule. 

Requires a new or modified base station 

operating outside its height benchmark 

to cure interference to a base station 

operating within its height benchmark 

within 24 hours, either by limiting its 

received signal at the other party’s base 

station to no more than ¥107 dBm/5.5 

MHz or by reducing its antenna height 

to comply with the height benchmark. If 

the interferer is an existing base station 

that is causing interference to a new 

base station, the existing licensee has 90 

days to comply; modifies the formula to 

calculate the height benchmark as 

proposed by Wireless Communications 

Association International, Inc. (WCA); 

declines to establish a rule requiring 

that parties cooperate in good faith to 

avoid interference. 

• Out-of-band Emissions. Declines to 

require all user stations, as opposed to 

mobile digital user stations, to attenuate 

their emissions at least 55 + 10 (log (P) 

dB measured 5.5 megahertz from the 

channel edge; clarifies that when two or 

more contiguous channels are combined 

to form a single channel, out-of-band 

emissions are to be measured three 

megahertz from the outermost edges of 

the combined channel; requires that a 

new or modified base station comply 

with the out-of-band emission within 24 

hours of receipt of a documented 

interference complaint from the first 

adjacent channel licensee. If the 

interferer is an existing base station that 

is causing interference to a new base 

station, the existing licensee has 60 days 

to comply; affirms the decision to limit 

the right to file a documented 

interference complaint to first adjacent 

channel licensees. 

• Geographic Service Area 

Boundaries. Declines to modify the 

methodology used to divide overlapping 

geographic service areas; affirms the 

policies adopted for treating pending 

applications for new or modified 

stations in the geographic service area 

framework. 

• Grandfathering EBS Facilities. 

Allows EBS facilities in the Middle 

Band Segment to exceed the ¥73.0 

dBW/m2 signal strength limit posttransition if needed to comply with the 

mandate that an EBS licensee be 

provided with facilities substantially 

similar to its pre-transition facilities. 

• Technical Corrections. Corrects 

various typographical errors in the 

existing rules. 

• Simultaneous Operation on Old 

and New BRS Channels 1 and 2/2A. 

Allows BRS Channel 1 and 2/2A 

licensees to operate simultaneously in 

their old channel locations in the 2150–

2160/62 MHz band and their temporary, 

pre-transition locations at 2496–2500 

MHz and 2686–2690 MHz band until 

every subscriber is relocated to the 2.5 

GHz band. 

10. In the Big LEO 3rd Order on 

Reconsideration and AWS 6th MO&O, 

we defer consideration of a petition for 

reconsideration filed by the Society of 

Broadcast Engineers asking us to adopt 

a revised band plan for Broadcast 

Auxiliary Service (BAS) Channels A8–

A10 that would remove BAS operations 

from the 2496–2502 MHz band. We 

deny BellSouth’s request that we modify 

the pfd limits applicable to Code 

Division Multiple Access Mobile 

Satellite Service licensees in the 2496–

2500 MHz band to correspond to the 

more stringent limits set forth in United 

States proposals to the World Radio 

Conference regarding protection of 

terrestrial operations in the 2500–2690 

MHz band. 

11. In the BRS/EBS 4th MO&O, we 

deny a request that primary BRS 

Channel 2 licensees not be required to 

split the football with secondary BRS 

Channel 2 licensees or with BRS 

Channel 2A licensees. 

F. Grandfathered E and F Group 

Channel EBS Stations 

12. In the 4th MO&O, the Commission 

denies petitions concerning overlaps 

between grandfathered EBS E and F 

Group licensees and co-channel BRS E 

and F Group licensees and affirm the 

existing rule § 27.1206 to eliminate 

overlaps of 50 percent or greater 

between grandfathered E and F Group 

channel EBS stations and co-channel 

incumbent BRS stations by splitting the 

football. Also, the Commission denies a 

petition asking for procedural changes 

to the 90-day negotiation period for 

significant GSA overlaps (more than 50 

percent) between grandfathered EBS E 

and F Group channel licensees and 

incumbent BRS E and F Group channel 

licensees. In the case where the GSAs 

overlap 50% or greater, the Commission 

concluded that different treatment was 

warranted. Where there is a major 

overlap of service areas, splitting the 

football may no longer be the best 

solution for accommodating the needs 

of both licensees. In those cases, the 

Commission established a 90-day 

mandatory negotiation period during 

which both the BRS and EBS licensees 

have an explicit duty to work to 

accommodate each other’s 

communications requirements. If, at the 

end of 90 days, the parties cannot reach 

a mutual agreement, the Commission 

then will split the football on its own 

accord. 

13. All BRS and EBS licensees, 

including grandfathered E and F Group 

channel EBS licensees and incumbent 

BRS licenses that ‘‘split-the-football’’

with such licensees, may partition, 

disaggregate, assign, or transfer their 

spectrum. The use of the splitting the 

football mechanism to divide 

overlapping service areas does not 

preclude subsequent agreements to 

partition, disaggregate, assign, or 

transfer spectrum. The E and F 

channels, however, are classified as 

both EBS and BRS spectrum. We have 

granted waivers to allow assignments or 

transfers of grandfathered EBS stations 


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Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Rules and Regulations 26035 

to BRS licensees upon a suitable public 

interest showing. Similarly, upon a 

similar showing, an EBS licensee could 

partition part of its service area or 

disaggregate its spectrum to its cochannel BRS licensee. 

G. Gulf of Mexico Proceeding and 

Related Issues 

14. In this 4th MO&O, we reestablish 

three service areas in the Gulf of Mexico 

as requested by the American Petroleum 

Institute, establish the boundary of 

those service areas 12 nautical miles 

from the shore, and apply our existing 

technical rules to the Gulf Service Area 

which will provide Gulf licensees with 

the flexibility necessary to provide 

service. 

H. Leasing 

15. The Commission clarifies that EBS 

excess capacity leases entered into prior 

to January 10, 2005 and that contain an 

automatic renewal clause, are 

grandfathered after January 10, 2005 if 

they have an automatic renewal clause 

effective after January 10, 2005, only to 

the extent that such leases do not 

exceed 15 years in total length 

(including the automatic renewal 

period(s)). This decision is consistent 

with our decision in the Two-Way Order 

on Reconsideration. Thus, these leases 

cannot be extended in perpetuity. To 

further clarify, lease terms for EBS 

leases entered under the rules and 

policies of the BRS/EBS R&O (those 

entered into between January 10, 2005 

and July 18, 2006) are not limited by the 

Commission’s rules (but are subject to 

relevant state laws limiting the length of 

contracts). Leases entered into under the 

rules and policies of the BRS/EBS 3rd 

MO&O (on or after July 19, 2006) may 

be up to 30 years in length, so long as 

the EBS licensee retains the right at year 

15 and every 5 years thereafter to review 

its educational needs. 

16. The Commission declines to void 

EBS leases for one-way only video 

services entered into prior to the release 

of the Two-Way Order. While we are 

concerned by the situation, we do not 

have the authority to void contracts 

executed by two private parties under 

the laws of individual states. We find, 

however, that the alleged unknown start 

date is contrary to the rules and policies 

adopted by the Commission in the TwoWay Order, which limited the term of 

EBS leases to 15 years from the date 

they are executed between the parties. 

Any other interpretation of the TwoWay Order would permit the 

warehousing of valuable spectrum for 

decades and is contrary to the 

underlying purpose of the rule. 

17. In the 4th MO&O, the Commission 

grants a petition and amends rules to 

permit lessees to offer EBS licensees/ 

lessors the actual equipment used or 

comparable equipment on lease 

termination. In the BRS/EBS 3rd MO&O, 

the Commission amended § 27.1214(c) 

to clarify that the EBS licensee/lessor 

could ‘‘purchase or lease dedicated 

common equipment used for 

educational purposes in the event that 

the spectrum leasing arrangement’’ was 

terminated by either the EBS licensee/ 

lessor or the lessee. We agree that the 

proposed rule change is an appropriate 

modification that reflects the fact that 

equipment is often shared among 

multiple licensees. 

I. Substantial Service 

18. In the 4th MO&O, the Commission 

denies a petition asking that licensees 

be permitted to demonstrate substantial 

service based solely on pastdiscontinued service. The Commission 

adopted a substantial service standard 

to ensure the prompt delivery of service 

to rural areas, to prevent stockpiling or 

warehousing of spectrum by licensees or 

permittees, to promote investment in 

and rapid deployment of new 

technologies and services, and to 

facilitate the availability of broadband to 

all Americans. Permitting licensees to 

demonstrate substantial service by using 

past-discontinued service alone would 

not achieve any of these goals. 

Nevertheless, the Commission, by 

permitting the use of past-discontinued 

service as a factor in the substantial 

service determination, struck the 

appropriate balance between 

encouraging broadband development in 

the 2.5 GHz band and recognizing that 

licensees were permitted to discontinue 

service in anticipation of the transition 

to the new band plan and technical 

rules. 

19. In the 4th MO&O, the Commission 

agrees that it is appropriate to give some 

relief to licensees whose GSAs are 

heavily truncated to remedy a situation 

created by several factors and grants a 

petition asking for a new safe harbor for 

heavily encumbered or highly truncated 

BTAs and GSAs. We adopt a rule 

allowing licensees whose GSA is less 

than 1924 square miles in size to 

demonstrate substantial service by 

combining its GSA with an overlapping 

co-channel station licensed or leased by 

the licensee or its affiliate. 

J. EBS Eligibility 

20. We grant a petition asking us to 

update the EBS eligibility rules to reflect 

the wider variety of services EBS 

licensees will use and offer. In 

particular, as written, the rules 

contemplate video programming where 

the licensee will know the specific 

content being offered in advance. We 

amend § 27.1201(a)(3) of the 

Commission’s rules to clarify that an 

educational institution may receive 

education-enhancing broadband 

services, which it intends to use in 

furtherance of its educational mission. 

We also amend the language in 

§ 27.1201(a)(3) regarding the distance 

from the transmit site for qualified 

schools supplying letters to be based on 

distance from the proposed center 

reference point, and should be further 

qualified to ensure that such school will 

be within the proposed geographic 

service area. 

21. The Commission amends 

paragraph (d) of § 27.1201 of the 

Commission’s rules to clarify that 

commercial EBS licensees are not 

subject to the educational programming 

requirements in § 27.1203(b) through (d) 

of the Commission’s rules or the special 

EBS leasing requirements contained in 

§ 27.1214 of the Commission’s rules. 

K. Mutually Exclusive Applications 

22. In the 4th MO&O, the Commission 

denies a petition asking the Commission 

to reinstate pending mutually exclusive 

applications for new EBS stations. The 

Commission rejects the argument that 

D.C. Circuit’s holding in Kessler v. FCC 

prohibited the dismissal of mutually 

exclusive applications. The dismissal of 

the mutually exclusive applications was 

necessary because neither the 

Commission nor the parties could 

resolve this mutual exclusivity under 

the then applicable site-based licensing 

scheme. The dismissal of those 

applications, therefore, furthers the 

Commission’s goal of developing a 

licensing scheme that not only resolves 

issues of mutual exclusivity, but also 

ensures the efficient use of EBS 

spectrum by educators. Allowing the 

mutually exclusive applications to 

remain on file would create 

considerable uncertainty for potential 

proponents who would be uncertain of 

the ultimate licensee in a market. 

III. Declaratory Ruling 

23. In this Declaratory Ruling, we 

clarify the treatment of the splitting the 

football policy for overlapping GSAs. 

On January 25, 2007, the Broadband 

Division of the Wireless 

Telecommunications Bureau granted 

waivers nunc pro tunc to 41 late-filed 

EBS renewal applications. On 

September 28, 2007, Clearwire, Catholic 

Television Network/National ITFS 

Association (CTN/NIA), WCA, 

NextWave, Sprint Nextel, and Xanadoo 

(the Joint Commenters) filed a letter 


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proposing clarifications that they 

believe represent a consensus position 

of a majority of the 2.5 GHz industry 

and that, on balance, most effectively 

and fairly advance the Commission’s 2.5 

GHz band goals and objectives. The 

Joint Commenters ask that we clarify 

our splitting the football treatment of 

expired licenses. 

24. In addition, four licensees—

Instructional Telecommunications 

Foundation, Inc. (ITF), New Trier 

Township, High School District 203 

(New Trier), Shekinah Network 

(Shekinah) and Boston Catholic 

Television Center (BCTC)—have asked 

the Commission to issue a declaratory 

ruling that their Stations do not have to 

split the football with overlapping 

stations that were expired on January 

10, 2005. 

25. In response to the petitions for 

declaratory ruling and other filings we 

have considered, we issue the following 

clarifications of our splitting the football 

policy: 

• An active BRS or EBS licensee 

whose former protected service area 

overlapped with a co-channel license 

that was expired on January 10, 2005 

need not split the football with such 

expired license if the licensee has not 

had its license reinstated. 

• If a BRS or EBS license was expired 

on January 10, 2005, and such license is 

later reinstated nunc pro tunc pursuant 

to a waiver granted for a late-filed 

renewal application granted after the 

adoption date of this BRS/EBS Fourth 

Memorandum Opinion and Order, that 

licensee’s geographic service shall not 

include any portion of its former 

protected service area that overlapped 

with another licensee whose license was 

in active status on January 10, 2005 and 

on the date the expired licensee’s latefiled renewal application was granted, 

unless a finding is made that splitting 

the football is appropriate because of 

manifest Commission error or other 

unique circumstances. 

IV. Procedural Matters 

26. Paperwork Reduction Analysis: 

This document contains new 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. OMB, the general public, and 

other Federal agencies are invited to 

comment on the new information 

collection requirements contained in 

this proceeding. In addition, we note 

that pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

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

we previously sought specific comment 

on how the Commission might ‘‘further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees.’’

27. In this present document, we have 

assessed the effects of requiring 

licensees to provide information 

concerning their base stations to any 

nearby licensee upon request, and find 

that this requirement will benefit 

companies with fewer than 25 

employees because it will help them to 

enjoy interference-free operations. We 

anticipate that the information exchange 

will consist of a limited number of 

technical parameters of a licensee’s 

operations that licensees will have 

already established and recorded for 

their own operational purposes. Because 

licensees will already have such 

information at their disposal, it will not 

be burdensome to convey such 

information when requested. 

Additionally, because licensees will 

only be required to submit such 

information upon request from a 

neighboring licensee, this significantly 

limits the amount of potential requests 

for information. Therefore, we conclude 

that this information exchange will not 

burden companies with fewer than 25 

employees. 

28. In addition to filing comments 

with the Secretary, a copy of any 

comments on the information 

collections contained herein should be 

submitted to Judith Boley Herman, 

Federal Communications Commission, 

445 12th Street, SW., Room 1–B441, 

Washington, DC 20554, or via the 

Internet to <Judith-B.Herman@fcc.gov>, 

and to Nicholas Fraser, Office of 

Management and Budget (OMB), via email to Nicholas_A._Fraser@ 

omb.eop.gov or via fax at 202–395–5167. 

V. Final Regulatory Flexibility Analysis 

for BRS/EBS Fourth Memorandum 

Opinion and Order 

29. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), we incorporated an Initial 

Regulatory Flexibility Analysis (IRFA) 

of the possible significant economic 

impact on a substantial number of small 

entities by the policies and rules 

proposed in the Further Notice of 

Proposed Rule Making (FNPRM). 

Because we amend the rules in this 

BRS/EBS 4th MO&O, we have included 

this Final Regulatory Flexibility 

Analysis (FRFA). This present FRFA 

conforms to the RFA. 

A. Need for, and Objectives of the Rules 

30. In the BRS/EBS 4th MO&O, we 

continue to modify our rules to enable 

the transition of the 2.5 GHz band and 

the provision of new and innovative 

wireless services. Today, we adopt part 

I, subpart Q as the competitive bidding 

rules for available and unassigned 

Broadband Radio Service (BRS) 

spectrum; designated entity rules to 

provide bidding credits for small 

businesses, very small businesses, and 

entrepreneurs; modify technical rules 

concerning emission limits, signal 

strength limits, and height 

benchmarking; special safe harbors for 

licensees whose Geographic Service 

Area (GSA) is heavily encumbered or 

highly truncated; and create three Gulf 

of Mexico Service Area zones. 

31. We believe the rules we adopt 

today will both encourage the 

enhancement of existing services using 

this band and promote the development 

of new innovative services to the public, 

such as providing wireless broadband 

services, including high-speed Internet 

access and mobile services. We also 

believe that our new rules will allow 

licensees to adapt quickly to changing 

market conditions and the marketplace, 

rather than to government regulation, in 

determining how this band can best be 

used. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

FRFA 

32. No comments were submitted 

specifically in response to the IRFA. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

33. 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. The RFA generally 

defines the term ‘‘small entity’’ as 

having the same meaning as the terms, 

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small governmental jurisdiction.’’

In addition, the term ‘‘small business’’

has the same meaning as the term small 

business concern’’ under the Small 

Business Act. 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 SBA. A small 

organization is generally ‘‘any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field.’’ Nationwide, as of 

2002, there were approximately 1.6 

million small organizations. 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.’’


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The term ‘‘small governmental 

jurisdiction’’ is defined generally as 

‘‘governments of cities, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than fifty thousand.’’ Census 

Bureau data for 2002 indicate that there 

were 87,525 local governmental 

jurisdictions in the United States. We 

estimate that, of this total, 84,377 

entities were ‘‘small governmental 

jurisdictions.’’ Thus, we estimate that 

most governmental jurisdictions are 

small. Below, we discuss the total 

estimated numbers of small businesses 

that might be affected by our actions. 

34. Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). In connection with the 1996 

BRS auction, the Commission 

established a small business size 

standard as an entity that had annual 

average gross revenues of no more than 

$40 million in the previous three 

calendar years. The BRS auctions 

resulted in 67 successful bidders 

obtaining licensing opportunities for 

493 Basic Trading Areas (BTAs). Of the 

67 auction winners, 61 met the 

definition of a small business. BRS also 

includes licensees of stations authorized 

prior to the auction. At this time, we 

estimate that of the 61 small business 

BRS auction winners, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

392 incumbent BRS licensees that are 

considered small entities. After adding 

the number of small business auction 

licensees to the number of incumbent 

licensees not already counted, we find 

that there are currently approximately 

440 BRS licensees that are defined as 

small businesses under either the SBA 

or the Commission’s rules. Some of 

those 440 small business licensees may 

be affected by the decisions in this BRS/ 

EBS 4th MO&O. 

35. In addition, the SBA has 

developed a small business size 

standard for Cable and Other Program 

Distribution, which includes all such 

companies generating $13.5 million or 

less in annual receipts. According to 

Census Bureau data for 2002, there were 

a total of 1,191 firms in this category 

that operated for the entire year. Of this 

total, 1,087 firms had annual receipts of 

under $10 million, and 43 firms had 

receipts of $10 million or more but less 

than $25 million. Consequently, we 

estimate that the majority of providers 

in this service category are small 

businesses that may be affected by the 

rules and policies adopted herein. This 

SBA small business size standard is 

applicable to EBS. There are presently 

2,032 EBS licensees. All but 100 of these 

licenses are held by educational 

institutions. Educational institutions are 

included in this analysis as small 

entities. Thus, we estimate that at least 

1,932 licensees are small businesses. 

36. There are presently 2,032 EBS 

licensees. All but 100 of these licenses 

are held by educational institutions. 

Educational institutions may be 

included in the definition of a small 

entity. EBS is a non-profit non-broadcast 

service. We do not collect, nor are we 

aware of other collections of, annual 

revenue data for EBS licensees. We find 

that up to 1,932 of these educational 

institutions are small entities that may 

take advantage of our amended rules to 

provide additional flexibility to EBS. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

37. This BRS/EBS 4th MO&O modifies 

the reporting, recordkeeping, or other 

compliance requirements previously 

adopted in this proceeding. We are 

adopting competitive bidding 

procedures for available and unassigned 

BRS spectrum, including small business 

size standards and bidding credits for a 

‘‘small business’’ (an entity with 

attributed average annual gross revenues 

not exceeding $40 million for the 

preceding three years), a ‘‘very small 

business’’ (an entity with attributed 

average gross revenues not exceeding 

$15 million for the preceding three 

years), and an ‘‘entrepreneur’’ (an entity 

with attributed average gross revenues 

not exceeding $3 million the preceding 

three years). We are also adopting two 

new safe harbors to enable BRS and EBS 

licensees whose GSA is heavily 

encumbered or highly truncated to meet 

the performance requirements for the 

2.5 GHz band. We are also creating three 

new Gulf of Mexico GSAs, which will 

enable the provision of 2.5 GHz band 

wireless services in the Gulf of Mexico 

in the future. We are changing the 

technical rules concerning emission 

limits, signal strength limits, and 

antenna height benchmarking, including 

requiring licensees to exchange 

information. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

38. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): ‘‘(1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for 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 small entities.’’

39. Regarding our decision to adopt 

competitive bidding rules, we anticipate 

that our decision to adopt small 

business size standards and bidding 

credits for entities that meet the 

definition of small business, very small 

business, or entrepreneur will not have 

a significant economic impact on small 

entities. Because the BRS spectrum in 

the 2.5 GHz band was auctioned in 

1996, only 70 BTA licenses (of the 493 

licenses originally available in 1996) are 

available for reassignment by 

competitive bidding. 

40. Regarding our decision to adopt 

two new safe harbors for the 

demonstration of substantial service 

compliance, we do not anticipate any 

significant economic impact on small 

entities. These two safe harbors apply 

only to licensees that have heavily 

encumbered or highly truncated GSAs. 

Although the applicability of these two 

safe harbors is limited, they will enable 

licensees to meet both our performance 

requirements and our interference 

protection rules. 

41. Regarding our decision to adopt 

three new Gulf of Mexico Service Area 

Zones, we do not anticipate any 

significant impact on small entities. We 

anticipate that spectrum in these GSAs 

will be used on oil platforms in the Gulf 

of Mexico. 

42. Regarding our decision to modify 

various technical rules, we do not 

anticipate any significant impact on 

small entities. These modifications are 

minor. 

43. The rules set forth in the BRS/EBS 

4th MO&O will affect all entities that 

intend to provide BRS or EBS service in 

the 2.5 GHz band. 

VI. Report to Congress 

44. The Commission will send a copy 

of this Fourth Memorandum Opinion 

and Order, including this FRFA, in a 


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report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act. In addition, the Commission will 

send a copy of this Fourth 

Memorandum Opinion and Order, 

including this FRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. A copy of this 

Fourth Memorandum Opinion and 

Order and FRFA (or summaries thereof) 

will also be published in the Federal 

Register. 

VII. Ordering Clauses 

45. Accordingly, it is ordered, 

pursuant to sections 1, 2, 4(i), 7, 10, 201, 

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

319, 324, 332, 333 and 706 of the 

Communications Act of 1934, 47 U.S.C. 

151, 152, 154(i), 157, 160, 201, 214, 301, 

302, 303, 307, 308, 309, 310, 319, 324, 

332, 333, and 706, that this Third Order 

on Reconsideration, Sixth Memorandum 

Opinion and Order, and Fourth 

Memorandum Opinion and Order is 

hereby adopted. 

46. It is further ordered that the 

Petitions for Reconsideration filed in 

these proceedings are granted to the 

extent indicated and are otherwise 

denied. 

47. It is further ordered, pursuant to 

section 4(i) of the Communications Act 

of 1934, 47 U.S.C. 154(i), and § 1.2 of 

the Commission’s rules, 47 CFR 1.2, that 

the petitions for declaratory ruling filed 

by Instructional Telecommunications 

Foundation, Inc. on March 13, 2007, 

New Trier High School District #203 on 

July 26, 2007, Shekinah Network on 

November 27, 2007, and Boston 

Catholic Television Center, Inc. on 

December 14, 2007 are granted to the 

extent indicated herein and are 

otherwise denied. 

48. It is further ordered that the 

proceeding entitled Amendment of parts 

21 and 74 of the Commission’s rules 

with regard to licensing in the 

Multipoint Distribution Service and in 

the Instructional Television Fixed 

Service for the Gulf of Mexico, WT 

Docket No. 02–68 is reinstated. 

49. It is further ordered that the Final 

Regulatory Flexibility Analysis is 

adopted. 

50. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Third Order on Reconsideration, 

Sixth Memorandum Opinion and Order, 

and Fourth Memorandum Opinion and 

Order and Second Notice of Proposed 

Rulemaking and Declaratory Ruling, 

including the Final Regulatory 

Flexibility Analysis and Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 27 

Communications common carriers, 

Communications equipment, Equal 

employment opportunity, Radio, 

Reporting and recordkeeping 

requirements, Satellites, Securities, 

Telecommunications. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 27 as 

follows: 

PART 27—MISCELLANEOUS 

WIRELESS COMMUNICATIONS 

SERVICES 

■ 1. The authority citation for part 27 

continues to read as follows: 

Authority: 47 U.S.C. 154, 301, 302, 303, 

307, 309, 332, 336, and 337 unless otherwise 

noted. 

■ 2. Amend § 27.5 by revising paragraph 

(i)(2)(iii) and the note to paragraph (i)(2) 

to read as follows: 

§ 27.5 Frequencies. 

(i) * * * 

(2) * * * 

(iii) Upper Band Segment (UBS): The 

following channels shall constitute the 

Upper Band Segment: 

BRS Channel KH1: 2614.00000–

2614.33333 MHz. 

BRS Channel KH2: 2614.33333–

2614.66666 MHz. 

BRS Channel KH3: 2614.66666–

2615.00000 MHz. 

EBS Channel KG1: 2615.00000–

2615.33333 MHz. 

EBS Channel KG2: 2615.33333–

2615.66666 MHz. 

EBS Channel KG3: 2615.66666–

2616.00000 MHz. 

BRS Channel KF1: 2616.00000–

2616.33333 MHz. 

BRS Channel KF2: 2616.33333–

2616.66666 MHz. 

BRS Channel KF3: 2616.66666–

2617.00000 MHz. 

BRS Channel KE1: 2617.00000–

2617.33333 MHz. 

BRS Channel KE2: 2617.33333–

2617.66666 MHz. 

BRS Channel KE3: 2617.66666–

2618.00000 MHz. 

BRS Channel 2: 2618–2624 MHz. 

BRS/EBS Channel E1: 2624–2629.5 

MHz. 

BRS/EBS Channel E2: 2629.5–2635 

MHz. 

BRS/EBS Channel E3: 2635–2640.5 

MHz. 

BRS/EBS Channel F1: 2640.5–2646 

MHz. 

BRS/EBS Channel F2: 2646–2651.5 

MHz. 

BRS/EBS Channel F3: 2651.5–2657 

MHz. 

BRS Channel H1: 2657–2662.5 MHz. 

BRS Channel H2: 2662.5–2668 MHz. 

BRS Channel H3: 2668–2673.5 MHz. 

EBS Channel G1: 2673.5–2679 MHz. 

EBS Channel G2: 2679–2684.5 MHz. 

EBS Channel G3: 2684.5–2690 MHz. 

Note to paragraph (i)(2): No 125 kHz 

channels are provided for channels in 

operation in this service. The 125 kHz 

channels previously associated with these 

channels have been reallocated to Channel 

G3 in the upper band segment. 

* * * * * 

■ 3. Amend § 27.13 by adding new 

paragraph (h) to read as follows: 

§ 27.13 License period. 

* * * * * 

(h) BRS and EBS. BRS and EBS 

authorizations shall have a term not to 

exceed ten years from the date of 

original issuance or renewal. Unless 

otherwise specified by the Commission, 

incumbent BRS authorizations shall 

expire on May 1 in the year of 

expiration. 

■ 4. Amend § 27.14 by adding new 

paragraph (o) to read as follows: 

§ 27.14 Construction requirements; 

Criteria for renewal. 

* * * * * 

(o) BRS and EBS licensees must make 

a showing of ‘‘substantial service’’ no 

later than May 1, 2011. Incumbent BRS 

licensees must file their ‘‘substantial 

service’’ showing with their renewal 

application. ‘‘Substantial service’’ is 

defined as service which is sound, 

favorable, and substantially above a 

level of mediocre service which just 

might minimally warrant renewal. 

Substantial service for BRS and EBS 

licensees is satisfied if a licensee meets 

the requirements of paragraph (o)(1) or 

(o)(2) of this section. If a licensee has 

not met the requirements of paragraph 

(o)(1) or (o)(2) of this section, then 

demonstration of ‘‘substantial service’’

shall proceed on a case-by-case basis. 

All substantial service determinations 

will be made on a license-by-license 

basis. Except for BTA licenses, BRS 

licensees must file their ‘‘substantial 

service’’ showing with their renewal 

applications. Failure by any licensee to 

meet this requirement will result in 

forfeiture of the license and the licensee 

will be ineligible to regain it. 

(1) A BRS or EBS licensee has 

provided ‘‘substantial service’’ by: 


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(i) Constructing six permanent links 

per one million people for licensees 

providing fixed point-to-point services; 

(ii) Providing coverage of at least 30 

percent of the population of the licensed 

area for licensees providing mobile 

services or fixed point-to-multipoint 

services; 

(iii) Providing service to ‘‘rural areas’’

(a county (or equivalent) with a 

population density of 100 persons per 

square mile or less, based upon the most 

recently available Census data) and 

areas with limited access to 

telecommunications services: 

(A) For mobile service, where 

coverage is provided to at least 75% of 

the geographic area of at least 30% of 

the rural areas within its service area; or 

(B) for fixed service, where the BRS or 

EBS licensee has constructed at least 

one end of a permanent link in at least 

30% of the rural areas within its 

licensed area. 

(iv) Providing specialized or 

technologically sophisticated service 

that does not require a high level of 

coverage to benefit consumers; or 

(v) Providing service to niche markets 

or areas outside the areas served by 

other licensees. 

(2) An EBS licensee has provided 

‘‘substantial service’’ when: 

(i) The EBS licensee is using its 

spectrum (or spectrum to which the EBS 

licensee’s educational services are 

shifted) to provide educational services 

within the EBS licensee’s GSA; 

(ii) the EBS licensee’s license is 

actually being used to serve the 

educational mission of one or more 

accredited public or private schools, 

colleges or universities providing formal 

educational and cultural development 

to enrolled students; or 

(iii) the level of service provided by 

the EBS licensee meets or exceeds the 

minimum usage requirements specified 

in § 27.1214. 

(3) An EBS or BRS licensee may be 

deemed to provide substantial service 

through a leasing arrangement if the 

lessee is providing substantial service 

under paragraph (o)(1) of this section. 

The EBS licensee must also be 

otherwise in compliance with this 

Chapter (including the programming 

requirements in § 27.1203 of this 

subpart). 

(4) If the GSA of a licensee is less than 

1924 square miles in size, and there is 

an overlapping co-channel station 

licensed or leased by the licensee or its 

affiliate, substantial service may be 

demonstrated by meeting the 

requirements of paragraph (o)(1) or 

(o)(2) of this section with respect to the 

combined GSAs of both stations. 

(5) If the GSA of a BTA authorization 

holder, is less than one-half of the area 

within the BTA for every BRS channel, 

substantial service may be demonstrated 

for the licenses in question by meeting 

the requirements of paragraph (o)(1) or 

(o)(2) of this section with respect to the 

combined GSAs of the BTA 

authorization holder, together with any 

incumbent authorizations licensed or 

leased by the licensee or its affiliates. 

■ 5. Amend § 27.53 by revising 

paragraph (m) introductory text and 

paragraphs (m)(2) and (m)(4) to read as 

follows: 

§ 27.53 Emission limits. 

* * * * * 

(m) For BRS and EBS stations, the 

power of any emissions outside the 

licensee’s frequency bands of operation 

shall be attenuated below the 

transmitter power (P) measured in watts 

in accordance with the standards below. 

If a licensee has multiple contiguous 

channels, out-of-band emissions shall be 

measured from the upper and lower 

edges of the contiguous channels. 

* * * * * 

(2) For digital base stations, the 

attenuation shall be not less than 43 + 

10 log (P) dB, unless a documented 

interference complaint is received from 

an adjacent channel licensee with an 

overlapping Geographic Service Area. 

Mobile Satellite Service licensees 

operating on frequencies below 2495 

MHz may also submit a documented 

interference complaint against BRS 

licensees operating on channel BRS No. 

1 on the same terms and conditions as 

adjacent channel BRS or EBS licensees. 

Provided that a documented 

interference complaint cannot be 

mutually resolved between the parties 

prior to the applicable deadline, then 

the following additional attenuation 

requirements shall apply: 

(i) If a pre-existing base station suffers 

harmful interference from emissions 

caused by a new or modified base 

station located 1.5 km or more away, 

within 24 hours of the receipt of a 

documented interference complaint the 

licensee of the new or modified base 

station must attenuate its emissions by 

at least 67 + 10 log (P) dB measured at 

3 megahertz, above or below, from the 

channel edge of its frequency block and 

shall immediately notify the 

complaining licensee upon 

implementation of the additional 

attenuation. No later than 60 days after 

the implementation of such additional 

attenuation, the licensee of the 

complaining base station must attenuate 

its base station emissions by at least 67 

+ 10 log (P) dB measured at 3 

megahertz, above or below, from the 

channel edge of its frequency block of 

the new or modified base station. 

(ii) If a pre-existing base station 

suffers harmful interference from 

emissions caused by a new or modified 

base station located less than 1.5 km 

away, within 24 hours of receipt of a 

documented interference complaint the 

licensee of the new or modified base 

station must attenuate its emissions by 

at least 67 + 10 log (P)¥20 log (Dkm/ 

1.5) dB measured at 3 megahertz, above 

or below, from the channel edge of its 

frequency block of the complaining 

licensee, or if both base stations are colocated, limit its undesired signal level 

at the pre-existing base station 

receiver(s) to no more than ¥107 dBm 

measured in a 5.5 megahertz bandwidth 

and shall immediately notify the 

complaining licensee upon such 

reduction in the undesired signal level. 

No later than 60 days after such 

reduction in the undesired signal level, 

the complaining licensee must attenuate 

its base station emissions by at least 67 

+ 10 log (P) dB measured at 3 

megahertz, above or below, from the 

channel edge of its frequency block of 

the new or modified base station. 

(iii) If a new or modified base station 

suffers harmful interference from 

emissions caused by a pre-existing base 

station located 1.5 km or more away, 

within 60 days of receipt of a 

documented interference complaint the 

licensee of each base station must 

attenuate its base station emissions by at 

least 67 + 10 log (P) dB measured at 3 

megahertz, above or below, from the 

channel edge of its frequency block of 

the other licensee. 

(iv) If a new or modified base station 

suffers harmful interference from 

emissions caused by a pre-existing base 

station located less than 1.5 km away, 

within 60 days of receipt of a 

documented interference complaint: (a) 

The licensee of the new or modified 

base station must attenuate its OOBE by 

at least 67 + 10 log (P)¥20 log (Dkm/ 

1.5) measured 3 megahertz above or 

below, from the channel edge of its 

frequency block of the other licensee, or 

if the base stations are co-located, limit 

its undesired signal level at the other 

base station receiver(s) to no more than 

¥107 dBm measured in a 5.5-megahertz 

bandwidth; and (b) the licensee causing 

the interference must attenuate its 

emissions by at least 67 + 10 log (P) dB 

measured at 3 megahertz, above or 

below, from the channel edge of its 

frequency block of the new or modified 

base station. 

(v) For all fixed digital user stations, 

the attenuation factor shall be not less 


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than 43 + 10 log (P) dB at the channel 

edge. 

* * * * * 

(4) For mobile digital stations, the 

attenuation factor shall be not less than 

43 + 10 log (P) dB at the channel edge 

and 55 + 10 log (P) dB at 5.5 megahertz 

from the channel edges. Mobile Satellite 

Service licensees operating on 

frequencies below 2495 MHz may also 

submit a documented interference 

complaint against BRS licensees 

operating on BRS Channel 1 on the 

same terms and conditions as adjacent 

channel BRS or EBS licensees. 

* * * * * 

■ 6. Amend § 27.55 by revising 

paragraphs (a)(4)(i), (ii), and (iii) to read 

as follows: 

§ 27.55 Power strength limits. 

(a) * * * 

(4) * * * 

(i) Prior to transition, the signal 

strength at any point along the 

licensee’s GSA boundary does not 

exceed the greater of that permitted 

under the licensee’s Commission 

authorizations as of January 10, 2005 or 

47 dBμV/m. 

(ii) Following transition, for stations 

in the LBS and UBS, the signal strength 

at any point along the licensee’s GSA 

boundary must not exceed 47 dBμV/m. 

This field strength is to be measured at 

1.5 meters above the ground over the 

channel bandwidth (i.e., each 5.5 MHz 

channel for licensees that hold a full 

channel block, and for the 5.5 MHz 

channel for licensees that hold 

individual channels). 

(iii) Following transition, for stations 

in the MBS, the signal strength at any 

point along the licensee’s GSA 

boundary must not exceed the greater of 

¥73.0 + 10 log(X/6) dBW/m2, where X 

is the bandwidth in megahertz of the 

channel, or for facilities that are 

substantially similar to the licensee’s 

pre-transition facilities (including 

modifications that do not alter the 

fundamental nature or use of the 

transmissions), the signal strength at 

such point that resulted from the 

station’s operations immediately prior 

to the transition, provided that such 

operations complied with paragraph 

(a)(4)(i) of this section. 

* * * * * 

■ 7. Amend § 27.1201 by revising 

paragraphs (a)(3) and (d) to read as 

follows: 

§ 27.1201 EBS eligibility. 

(a) * * * 

(3) Those applicant organizations 

whose eligibility is established by 

service to accredited institutional or 

governmental organizations must 

submit documentation from proposed 

receive sites demonstrating that they 

will receive and use the applicant’s 

educational usage. In place of this 

documentation, a State educational 

television (ETV) commission may 

demonstrate that the public schools it 

proposes to serve are required to use its 

proposed educational usage. 

Documentation from proposed receive 

sites which are to establish the 

eligibility of an entity not serving its 

own enrolled students for credit should 

be in letter form, written and signed by 

an administrator or authority who is 

responsible for the receive site’s 

curriculum planning. No receive site 

more than 35 miles from the proposed 

station’s central reference point, or 

outside the applicants’ proposed GSA, 

shall be used to establish basic 

eligibility. Where broadband or data 

services are proposed, the letter should 

indicate that the data services will be 

used in furtherance of the institution’s 

educational mission and will be 

provided to enrolled students, faculty 

and staff in a manner and in a setting 

conducive to educational usage. Where 

traditional educational or instructional 

video services are proposed, the letter 

should indicate that the applicant’s 

program offerings have been viewed and 

that such programming will be 

incorporated in the site’s curriculum. 

Where educational or instructional 

video services are proposed, the letter 

should discuss the types of 

programming and hours per week of 

formal and informal programming 

expected to be used and the site’s 

involvement in the planning, 

scheduling and production of 

programming. If other levels of authority 

must be obtained before a firm 

commitment to utilize the service can be 

made, the nature and extent of such 

additional authorization(s) must be 

provided. 

* * * * * 

(d) This paragraph applies to EBS 

licensees and applications licensed or 

filed pursuant to the provisions of 

§ 27.1201(c) contained in the edition of 

47 CFR parts 20 through 39, revised as 

of October 1, 2005, or §§ 74.990 through 

74.992 contained in the edition of 47 

CFR parts 70 through 79, revised as of 

October 1, 2004, and that do not meet 

the eligibility requirements of paragraph 

(a) of this section. Such licensees may 

continue to operate pursuant to the 

terms of their existing licenses, and 

their licenses may be renewed, assigned, 

or transferred, so long as the licensee is 

otherwise in compliance with this 

chapter. Applications filed pursuant to 

the provisions of § 27.1201(c) contained 

in the edition of 47 CFR parts 20 

through 39, revised as of October 1, 

2005 or §§ 74.990 through 74.992 

contained in the edition of 47 CFR parts 

70 through 79, revised as of October 1, 

2004 may be processed and granted, so 

long as such applications were filed 

prior to July 19, 2006. The provisions of 

§§ 27.1203(b) through (d) and 27.1214 of 

this subpart do not apply to licenses 

governed by this paragraph. 

■ 8. Amend § 27.1207 by revising 

paragraph (a) and the introductory text 

of paragraph (b) to read as follows: 

§ 27.1207 BTA license authorization. 

(a) Winning bidders must file an 

application (FCC Form 601) for an 

initial authorization. 

(b) Initial authorizations for BRS 

granted after January 1, 2008, shall be 

blanket licenses for all BRS frequencies 

identified in § 27.5(i)(2) and based on 

the geographic areas identified in 

§ 27.1208. Blanket licenses cover all 

mobile and response stations. 

* * * * * 

■ 9. Revise § 27.1208 to read as follows: 

§ 27.1208 BTA Service areas. 

Except for incumbent BRS licenses, 

BRS service areas are Basic Trading 

Areas (BTAs) or additional service areas 

similar to BTAs adopted by the 

Commission. BTAs are based on the 

Rand McNally 1992 Commercial Atlas & 

Marketing Guide, 123rd Edition, at 

pages 38–39. The following are 

additional BRS service areas in places 

where Rand McNally has not defined 

BTAs: American Samoa; Guam; Gulf of 

Mexico Zone A; Gulf of Mexico Zone B; 

Gulf of Mexico Zone C; Northern 

Mariana Islands; Mayaguez/AguadillaPonce, Puerto Rico; San Juan, Puerto 

Rico; and the United States Virgin 

Islands. The boundaries of Gulf of 

Mexico Zone A are from an area twelve 

nautical miles from the shoreline at 

mean high tide on the north and east, to 

the limit of the Outer Continental Shelf 

to the south, and to longitude 91°00′ to 

the west. The boundaries of Gulf of 

Mexico Zone B are from an area twelve 

nautical miles from the shoreline at 

mean high tide on the north, to the limit 

of the Outer Continental Shelf to the 

south, to longitude 91°00′ to the east, 

and to longitude 94°00′ to the west. The 

boundaries of Gulf of Mexico Zone C are 

from an area twelve nautical miles from 

the shoreline at mean high tide on the 

north and west, to longitude 94°00′ to 

the east, and to a line 281 kilometers 

from the reference point at Linares, N.L., 

Mexico on the southwest. The 

Mayaguez/Aguadilla-Ponce, PR, service 


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Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Rules and Regulations 26041 

area consists of the following 

municipios: Adjuntas, Aguada, 

Aguadilla, Anasco, Arroyo, Cabo Rojo, 

Coamo, Guanica, Guayama, Guayanilla, 

Hormigueros, Isabela, Jayuya, Juana 

Diaz, Lajas, Las Marias, Maricao, 

Maunabo, Mayaguez, Moca, Patillas, 

Penuelas, Ponce, Quebradillas, Rinco ́n, 

Sabana Grande, Salinas, San German, 

Santa Isabel, Villalba and Yauco. The 

San Juan service area consists of all 

other municipios in Puerto Rico. 

■ 10. Amend § 27.1214 by revising 

paragraph (c) to read as follows: 

§ 27.1214 EBS spectrum leasing 

arrangements and grandfathered leases. 

* * * * * 

(c) All spectrum leasing arrangements 

involving EBS spectrum must afford the 

EBS licensee an opportunity to purchase 

or to lease the dedicated or common 

EBS equipment used for educational 

purposes, or comparable equipment in 

the event that the spectrum leasing 

arrangement is terminated. 

* * * * * 

■ 11. Add § 27.1217 to read as follows: 

§ 27.1217 Competitive Bidding Procedures 

for the Broadband Radio Service. 

Mutually exclusive initial 

applications for BRS licenses in the 

2500–2690 MHz band are subject to 

competitive bidding. The general 

competitive bidding procedures set 

forth in part 1, subpart Q of this chapter 

will apply unless otherwise provided in 

this subpart. 

■ 12. Add § 27.1218 to read as follows: 

§ 27.1218 Designated Entities. 

(a) Eligibility for small business 

provisions. (1) A small business is an 

entity that, together with all attributed 

parties, has average gross revenues that 

are not more than $40 million for the 

preceding three years. 

(2) A very small business is an entity 

that, together with all attributed parties, 

has average gross revenues that are not 

more than $15 million for the preceding 

three years. 

(3) An entrepreneur is an entity that, 

together with all attributed parties, has 

average gross revenues that are not more 

than $3 million for the preceding three 

years. 

(b) Bidding credits. (1) A winning 

bidder that qualifies as a small business, 

as defined in this section, or a 

consortium of small businesses, may use 

a bidding credit of 15 percent, as 

specified in § 1.2110(f)(2)(iii) of this 

chapter, to lower the cost of its winning 

bid on any of the licenses in this 

subpart. 

(2) A winning bidder that qualifies as 

a very small business, as defined in this 

section, or a consortium of very small 

businesses, may use a bidding credit of 

25 percent, as specified in 

§ 1.2110(f)(2)(ii) of this chapter, to lower 

the cost of its winning bid on any of the 

licenses in this subpart. 

(3) A winning bidder that qualifies as 

an entrepreneur, as defined in this 

section, or a consortium of 

entrepreneurs, may use a bidding credit 

of 15 percent, as specified in 

§ 1.2110(f)(2)(i) of this chapter, to lower 

the cost of its winning bid on any of the 

licenses in this subpart. 

■ 13. Amend § 27.1221 by revising 

paragraphs (b) through (e) and adding a 

new paragraph (f) to read as follows: 

§ 27.1221 Interference protection. 

* * * * * 

(b) Height Benchmarking. Height 

benchmarking is defined for pairs of 

base stations, one in each of two 

proximate geographic service areas 

(GSAs). The height benchmark, which is 

defined in meters (hbm) for a particular 

base station relative to a base station in 

another GSA, is equal to the distance, in 

kilometers, from the base station along 

a radial to the nearest point on the GSA 

boundary of the other base station 

squared (Dkm2) and then divided by 17. 

That is, hb (m) = Dkm2/17. A base station 

antenna will be considered to be within 

its applicable height benchmark relative 

to another base station if the height in 

meters of its centerline of radiation 

above average elevation (HAAE) 

calculated along the straight line 

between the two base stations in 

accordance with §§ 24.53(b) and (c) of 

this chapter does not exceed the height 

benchmark (hbm). A base station 

antenna will be considered to exceed its 

applicable height benchmark relative to 

another base station if the HAAE of its 

centerline of radiation calculated along 

the straight line between the two base 

stations in accordance with §§ 24.53(b) 

and (c) of this chapter exceeds the 

height benchmark (hbm). 

(c) Protection for Receiving Antennas 

not Exceeding the Height Benchmark. 

Absent agreement between the two 

licensees to the contrary, if a 

transmitting antenna of one BRS/EBS 

licensee’s base station exceeds its 

applicable height benchmark and such 

licensee is notified by another BRS/EBS 

licensee that it is generating an 

undesired signal level in excess of ¥107 

dBm/5.5 megahertz at the receiver of a 

co-channel base station that is within its 

applicable height benchmark, then the 

licensee of the base station that exceeds 

its applicable height benchmark shall 

either limit the undesired signal at the 

receiver of the protected base station to 

¥107dBm/5.5 megahertz or less or 

reduce the height of its transmission 

antenna to no more than the height 

benchmark. If the interfering base 

station has been modified to increase 

the EIRP transmitted in the direction of 

the protected base station, it shall be 

deemed to have commenced operations 

on the date of such modification. Such 

corrective action shall be completed no 

later than: 

(i) 24 hours after receiving such 

notification, if the base station that 

exceeds its height benchmark 

commenced operations after the station 

that is within its applicable height 

benchmark; or 

(ii) 90 days after receiving such 

notification, if the base station that 

exceeds its height commenced 

operations prior to the station that is 

within its applicable height benchmark. 

For purposes of this section, if the 

interfering base station has been 

modified to increase the EIRP 

transmitted in the direction of the 

victim base station, it shall be deemed 

to have commenced operations on the 

date of such modification. 

(d) No Protection from a Transmitting 

Antenna not Exceeding the Height 

Benchmark. The licensee of a base 

station transmitting antenna less than or 

equal to its applicable height benchmark 

shall not be required pursuant to 

paragraph (c) of this section to limit that 

antennas undesired signal level to 

¥107dBm/5.5 megahertz or less at the 

receiver of any co-channel base station. 

(e) No Protection for a ReceivingAntenna Exceeding the Height 

Benchmark. The licensee of a base 

station receive antenna that exceeds its 

applicable height benchmark shall not 

be entitled pursuant to paragraph (c) of 

this section to insist that any co-channel 

base station limit its undesired signal 

level to ¥107dBm/5.5 megahertz or less 

at the receiver. 

(f) Information Exchange. A BRS/EBS 

licensee shall provide the geographic 

coordinates, the height above ground 

level of the center of radiation for each 

transmit and receive antenna, and the 

date transmissions commenced for each 

of the base stations in its GSA within 30 

days of receipt of a request from a cochannel BRS/EBS licensee with an 

operational base station located in a 

proximate GSA. Information shared 

pursuant to this section shall not be 

disclosed to other parties except as 

required to ensure compliance with this 

section. 

■ 14. Amend § 27.1231 by revising 

paragraph (f) introductory text to read as 

follows: 

§ 27.1231 Initiating the transition. 

* * * * * 


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26042 Federal Register / Vol. 73, No. 90 / Thursday, May 8, 2008 / Rules and Regulations 

(f) Initiation Plan. To initiate a 

transition, a potential proponent(s) must 

submit an Initiation Plan to the 

Commission at the Office of the 

Secretary in Washington, DC on or 

before January 21, 2009. 

* * * * * 

■ 15. Amend § 27.1236 by revising 

paragraphs (a), (b)(1), and (b)(6) to read 

as follows: 

§ 27.1236 Self-transitions. 

(a) If an Initiation Plan is not filed on 

or before January 21, 2009 for a BTA, 

BRS and EBS licensees in that BTA may 

self-transition by relocating to their 

default channel locations specified in 

§ 27.5(i)(2) and complying with 

§§ 27.50(h), 27.53, 27.55 and 27.1221. 

* * * * * 

(b) * * * 

(1) Notify the Secretary of the 

Commission on or before April 21, 2009 

that it will self-transition (see paragraph 

(a) of this section); 

* * * * * 

(6) Complete the self-transition on or 

before October 20, 2010. 

* * * * * 

[FR Doc. E8–10099 Filed 5–7–08; 8:45 am] 

BILLING CODE 6712–01–P 


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