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[Federal Register Volume 73, Number 90 (Thursday, May 8, 2008)]
[Rules and Regulations]
[Pages 26032-26042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10099]

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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 Non-
Geostationary Satellite Orbit Mobile Satellite Service Systems in the 
1.6/2.4 GHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule; declaratory ruling.

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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 Sec.  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 [email protected].

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 
[email protected] 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 [email protected]. 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 [email protected]. 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 [email protected].

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 [email protected].

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 self-transition 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 Sec.  
27.1236(b)(6), and on the Commission's own motion, change references in 
Sec. Sec.  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.

[[Page 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-of-band 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-of-band 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 post-transition 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 past-discontinued 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 Sec.  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 self-transitions 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

[[Page 26034]]

between the BRS/EBS 3rd MO&O and the text of Sec.  27.1236(b)(6), and 
on the Commission's own motion, change references in Sec. Sec.  
27.1231(f), 27.1236(a), 27.1236(b)(1) and 27.1236(b)(6) to dates 
certain. Also, we amend Sec. Sec.  27.1231(f) and 27.1236(a), 
27.1236(b)(1), and 27.1236(b)(6) to specify dates certain. Thus, 
Sec. Sec.  27.1231(f) and 27.1236(a) reference January 21, 2009, the 
date the Initiation Plan must be filed with the Commission; Sec.  
27.1236(b)(1) references April 21, 2009, the date a self-transitioning 
licensee must notify the Commission; and Sec.  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 
proponent-driven 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 opt-out 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 non-transitioning operator may resolve this situation among 
themselves or the transitioning licensee may file comments for 
Commission consideration in response to the non-transitioning 
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 post-transition 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 Sec.  
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

[[Page 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 co-channel 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 Two-Way 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 Two-Way 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 Sec.  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 past-discontinued 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 Sec.  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 Sec.  
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 Sec.  27.1201 of the 
Commission's rules to clarify that commercial EBS licensees are not 
subject to the educational programming requirements in Sec.  27.1203(b) 
through (d) of the Commission's rules or the special EBS leasing 
requirements contained in Sec.  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

[[Page 26036]]

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 late-filed 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 [email protected]>, and to Nicholas Fraser, Office 
of Management and Budget (OMB), via e-mail 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-for-profit 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.''

[[Page 26037]]

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

[[Page 26038]]

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 Sec.  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

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 27 as follows:

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
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.

0
2. Amend Sec.  27.5 by revising paragraph (i)(2)(iii) and the note to 
paragraph (i)(2) to read as follows:

Sec.  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.

* * * * *

0
3. Amend Sec.  27.13 by adding new paragraph (h) to read as follows:

Sec.  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.

0
4. Amend Sec.  27.14 by adding new paragraph (o) to read as follows:

Sec.  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:

[[Page 26039]]

    (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 Sec.  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 Sec.  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.

0
5. Amend Sec.  27.53 by revising paragraph (m) introductory text and 
paragraphs (m)(2) and (m)(4) to read as follows:

Sec.  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 co-located, 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

[[Page 26040]]

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.
* * * * *

0
6. Amend Sec.  27.55 by revising paragraphs (a)(4)(i), (ii), and (iii) 
to read as follows:

Sec.  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 dB[mu]V/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 dB[mu]V/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/m\2\, 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.
* * * * *

0
7. Amend Sec.  27.1201 by revising paragraphs (a)(3) and (d) to read as 
follows:

Sec.  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 Sec.  27.1201(c) 
contained in the edition of 47 CFR parts 20 through 39, revised as of 
October 1, 2005, or Sec. Sec.  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 Sec.  27.1201(c) contained in the edition of 47 CFR parts 
20 through 39, revised as of October 1, 2005 or Sec. Sec.  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 
Sec. Sec.  27.1203(b) through (d) and 27.1214 of this subpart do not 
apply to licenses governed by this paragraph.

0
8. Amend Sec.  27.1207 by revising paragraph (a) and the introductory 
text of paragraph (b) to read as follows:

Sec.  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 Sec.  
27.5(i)(2) and based on the geographic areas identified in Sec.  
27.1208. Blanket licenses cover all mobile and response stations.
* * * * *

0
9. Revise Sec.  27.1208 to read as follows:

Sec.  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/Aguadilla-Ponce, 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[deg]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[deg]00' to the east, 
and to longitude 94[deg]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[deg]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

[[Page 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, 
Rinc[oacute]n, Sabana Grande, Salinas, San German, Santa Isabel, 
Villalba and Yauco. The San Juan service area consists of all other 
municipios in Puerto Rico.

0
10. Amend Sec.  27.1214 by revising paragraph (c) to read as follows:

Sec.  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.
* * * * *

0
11. Add Sec.  27.1217 to read as follows:

Sec.  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.

0
12. Add Sec.  27.1218 to read as follows:

Sec.  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 
Sec.  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 Sec.  
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 Sec.  1.2110(f)(2)(i) of this 
chapter, to lower the cost of its winning bid on any of the licenses in 
this subpart.

0
13. Amend Sec.  27.1221 by revising paragraphs (b) through (e) and 
adding a new paragraph (f) to read as follows:

Sec.  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 (Dkm\2\) and then divided by 17. That is, hb (m) = 
Dkm\2\/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 Sec. Sec.  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 Sec. Sec.  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 Receiving-Antenna 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 co-channel 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.

0
14. Amend Sec.  27.1231 by revising paragraph (f) introductory text to 
read as follows:

Sec.  27.1231  Initiating the transition.

* * * * *

[[Page 26042]]

    (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.
* * * * *

0
15. Amend Sec.  27.1236 by revising paragraphs (a), (b)(1), and (b)(6) 
to read as follows:

Sec.  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 Sec.  
27.5(i)(2) and complying with Sec. Sec.  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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