[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Proposed Rules]
[Pages 57750-57851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23045]



[[Page 57749]]

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Part III





Federal Communications Commission





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47 CFR Parts 27 and 90



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Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 
Implementing a Nationwide, Broadband, Interoperable Public Safety 
Network in the 700 MHz Band; Proposed Rule

Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / 
Proposed Rules

[[Page 57750]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 27 and 90

[WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-230]


Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 
Implementing a Nationwide, Broadband, Interoperable Public Safety 
Network in the 700 MHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on its 
tentative conclusions and proposals on how the Commission might modify 
its rules governing the public/private partnership, the D Block 
licensee, and the public safety broadband licensee. This Third Further 
Notice of Proposed Rulemaking (Third FNPRM) seeks comment on its 
tentative conclusion that it should continue to mandate a public/
private partnership between the D block licensee and the public safety 
broadband licensee on a number of proposals and tentative conclusions 
regarding the terms and conditions for the partnership.

DATES: Written comments are due on or before November 3, 2008, and 
reply comments are due on or before November 12, 2008.

ADDRESSES: You may submit comments, identified by WT Docket No. 06-150 
and PS Docket No. 06-229, by any of the identified methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> People with Disabilities: Contact the Commission to 
request reasonable accommodations (accessible format documents, sign 
language interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#397f7a7a0c090d795f5a5a175e564f"><span class="__cf_email__" data-cfemail="d99f9a9aece9ed99bfbabaf7beb6af">[email protected]</span></a> or phone: 
202-418-0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at (202) 418-7369, 
at <a href="/cdn-cgi/l/email-protection#a6d6c3d2c3d488d2d4c7c5ced2c3c8c4c3d4c1e6c0c5c588c1c9d0"><span class="__cf_email__" data-cfemail="09796c7d6c7b277d7b686a617d6c676b6c7b6e496f6a6a276e667f">[email protected]</span></a>, Spectrum and Competition Policy 
Division, Wireless Telecommunications Bureau; Jeffrey S. Cohen at (202) 
418-0799, <a href="/cdn-cgi/l/email-protection#8ae0efececa4e9e5e2efe4caece9e9a4ede5fc"><span class="__cf_email__" data-cfemail="711b1417175f121e19141f311712125f161e07">[email protected]</span></a>, Public Safety and Homeland Security 
Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
FNPRM, WT Docket No. 06-150, PS Docket No. 06-229, adopted on September 
25, 2008 and released September 25, 2008. The full text of the Third 
FNPRM is available for public inspection and copying during business 
hours in the FCC Reference Information Center, Portals II, 445 12th 
Street, SW., Room CY-A257, Washington, DC 20554. It also may be 
purchased from the Commission's duplicating contractor at Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the 
contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail <a href="/cdn-cgi/l/email-protection#b2f4f1f1f2f0f1e2fbe5f7f09cd1dddf"><span class="__cf_email__" data-cfemail="2d6b6e6e6d6f6e7d647a686f034e4240">[email protected]</span></a>. Copies of 
the public notice also may be obtained via the Commission's Electronic 
Comment Filing System (ECFS) by entering the docket numbers, WT Docket 
No. 06-150 and PS Docket No. 06-229. Additionally, the complete item is 
available on the Federal Communications Commission's Web site at http://www.fcc.gov.

Synopsis

    In the Second Report and Order, 72 FR 48814, August 24, 2007, the 
Commission adopted rules for the establishment of a mandatory public/
private partnership (the 700 MHz Public/Private Partnership) in the 
upper portions of the 698-806 MHz band (700 MHz Band) as the means for 
promoting the rapid construction and deployment of a nationwide, 
interoperable broadband public safety network that would serve public 
safety and homeland security needs. Specifically, the Commission 
required that the winning bidder of the commercial license in the Upper 
700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz 
Public/Private Partnership with the nationwide licensee of the public 
safety broadband spectrum (763-768/793-798 MHz) (Public Safety 
Broadband Licensee) to enable construction of this interoperable 
broadband network, which would span both the commercial D Block and 
public safety spectrum. In the recently concluded auction of commercial 
700 MHz licenses, bidding for the D Block license did not meet the 
applicable reserve price of $1.33 billion and, pursuant to the 
Commission's rules, there was no winning bid for that license. In the 
Second Further Notice of Proposed Rulemaking, 22 FCC Rcd 8047 (2008) 
(Second FNPRM), the Commission revisited its decisions concerning the 
700 MHz Public/Private Partnership, including revisions to this 
partnership as well as alternative rules the Commission should adopt in 
the event the D Block licensee is no longer required to enter into a 
mandatory public/private partnership.
    In the Third FNPRM, the Commission seeks comment on the tentative 
conclusions and proposals presented in this Third FNPRM, and on whether 
these proposals will lead to a successful auction and, more 
importantly, a successful partnership or partnerships that will fulfill 
the Commission's goal of making interoperable broadband wireless 
service available to public safety entities across the nation. The 
Commission tentatively concludes that it should continue to require 
that the D Block licensee enter into a public/private partnership with 
the Public Safety Broadband Licensee, and proposes to use competitive 
bidding to resolve two critical issues: (1) The appropriate geographic 
license area for the D Block, and (2) the need for a common broadband 
technology platform nationwide. The Commission also proposes 
significant clarifications and revisions of the parties' obligations 
regarding the construction and operation of the shared wireless 
broadband network as well as modifications to certain rules governing 
the establishment of the Network Sharing Agreement and the licensing of 
the D Block following bidding for D Block licenses. The Commission also 
addresses certain additional issues related to the auction process and 
the rules governing public safety users and the Public Safety Broadband 
Licensee, including narrowband relocation issues. This Third FNPRM is 
another step in the Commission's ongoing efforts to develop a 
regulatory framework that will address current and future public safety 
communications needs.

Discussion

I. Introduction

    1. In this Third Further Notice of Proposed Rulemaking (Third 
FNPRM), the Commission takes the next step toward achieving the goal of 
a nationwide interoperable broadband wireless network for public safety 
entities. The Commission previously sought to achieve this goal through 
an innovative public/private partnership,

[[Page 57751]]

which required the winning bidder of the commercial license in the 
Upper 700 MHz D Block (758-763/788-793 MHz) (D Block) to partner with 
the nationwide licensee of the public safety broadband spectrum (763-
768/793-798 MHz) (Public Safety Broadband Licensee or PSBL) to enable 
construction of an interoperable broadband network that would serve 
both commercial and public safety users.\1\ Because the auction of the 
D Block did not result in a winning bid, the Commission issued the 
Second FNPRM revisiting the rules governing the mandatory public/
private partnership, the D Block licensee, and the Public Safety 
Broadband Licensee, seeking comment broadly on how the Commission might 
modify those rules to achieve the Commission goals, whether the 
Commission should continue to mandate a public/private partnership 
between the D Block licensee and Public Safety Broadband Licensee, and 
if so, under what terms and conditions.\2\ The Commission further 
indicated that, prior to adopting final rules, the Commission would 
present for public comment a detailed proposal regarding specific 
proposed rules to address these issues.\3\ In this Third FNPRM, the 
Commission now offers and seeks comment on the following proposals and 
tentative conclusions.
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    \1\ See Service Rules for the 698-746, 747-762 and 777-792 MHz 
Bands, WT Docket No. 06-150, Revision of the Commission's Rules to 
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC 
Docket No. 94-102, Section 68.4(a) of the Commission's Rules 
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309, 
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90 
to Streamline and Harmonize Various Rules Affecting Wireless Radio 
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper 
700 MHz Guard Band Licenses and Revisions to Part 27 of the 
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band, 
PS Docket No. 06-229, Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, WT Docket 
No. 96-86, Declaratory Ruling on Reporting Requirement under 
Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166, 
Second Report and Order, 22 FCC Rcd 15289 (2007) (Second Report and 
Order) recon. pending.
    \2\ See Service Rules for the 698-746, 747-762 and 777-792 
Bands; Implementing a Nationwide, Broadband, Interoperable Public 
Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket 
No. 06-229, 22 FCC Rcd 8047 (2008) (Second FNPRM).
    \3\ See id. at 8052 para. 7.
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    2. As an initial matter, the Commission tentatively concludes that 
it should continue to require, as a license condition, that the D Block 
licensee enter into a public/private partnership with the Public Safety 
Broadband Licensee for the purpose of constructing a wireless broadband 
network that will operate over both D Block spectrum and public safety 
broadband spectrum and provide broadband services to both commercial 
users and public safety entities (shared wireless broadband 
network).\4\ The Commission finds that a public/private partnership 
condition on the D Block remains the best option to achieve nationwide 
build-out of an interoperable broadband network for public safety 
entities, given the current absence of legislative appropriations for 
this purpose and the limited funding available to the public safety 
sector. The Commission also proposes to retain those current rules that 
will support this relationship. For example, the Commission proposes to 
continue requiring the parties to enter into a Network Sharing 
Agreement (NSA), and to make the NSA a condition of the grant of the D 
Block license(s). The Commission also proposes, however, to clarify and 
revise the rules to clearly establish the obligations of the parties to 
the partnership with greater specificity and detail. These 
clarifications and revisions address whether the D Block will be 
licensed on a nationwide or regional basis, the obligations of the 
parties regarding the construction and operation of the shared wireless 
broadband network, the rules governing the process for establishing an 
NSA between the parties, certain auction issues, and issues related to 
public safety users and the Public Safety Broadband Licensee. The 
Commission anticipates that, by establishing the rules governing the 
public/private partnership in a more comprehensive and detailed 
fashion, the Commission will enhance the certainty of bidders regarding 
their potential obligations as D Block licensees, and facilitate the 
rapid and successful negotiation of NSAs as the Commission would be 
significantly reducing the scope of issues that need to be 
negotiated.\5\ Equally important, the Commission seeks in its proposals 
to meet the needs of the public safety community in a commercially 
viable manner. With these goals in mind, the Commission makes the 
following proposals.
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    \4\ Under the Commission proposal, it is possible that there 
will be multiple regional D Block licenses or a single nationwide D 
Block license. Accordingly, references herein to ``the'' D Block 
license and licensee should be understood to incorporate reference 
to any of multiple D Block licenses or licensees, as appropriate. 
The Commission proposed rules should be interpreted in similar 
fashion.
    \5\ The Commission has appended an NSA term sheet, which 
provides a summary of major terms that the parties must include in 
their agreement(s). See, supra, Appendix D.
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    3. First, the Commission tentatively concludes that it should 
resolve two critical issues through the use of competitive bidding: (1) 
The appropriate geographic license area for the D Block, and (2) the 
need for a common broadband technology platform nationwide. The 
Commission tentatively concludes that it can resolve these issues 
through competitive bidding by offering alternative sets of D Block 
licenses with different license areas and broadband technology 
conditions. With regard to the appropriate geographic area, the 
Commission proposes to offer the D Block both as a single nationwide 
license and on a regional basis, using geographic areas that the 
Commission will refer to as Public Safety Regions (PSRs). PSRs would be 
comprised of fifty-five regions that mirror the geographic boundaries 
of the fifty-five 700 MHz Regional Planning Committee (RPC) regions, 
and three additional areas (for a total of 58 PSRs) to cover the whole 
country and match the geographic area of the nationwide license.\6\ 
With regard to the broadband technology platform, the Commission 
proposes to establish rules that will ensure that a single broadband 
air interface is used nationwide regardless of whether there is a 
single licensee or multiple regional licensees, to ensure that public 
safety users may communicate when they roam outside their home regions.
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    \6\ The three additional regions will cover (1) the Gulf of 
Mexico; (2) the Territory of Guam (Guam) and the Commonwealth of 
Northern Mariana Islands (Northern Mariana Islands); and (3) the 
Territory of American Samoa (American Samoa), and will be identical 
to the current Economic Area (EA) licensing areas for those same 
regions. See Appendix A.
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    4. To resolve both of these issues, the Commission therefore 
proposes to offer simultaneously three alternative sets of licenses 
that vary by geographic license area and by conditions regarding the 
technology platform that must be used by the licensee(s). Specifically, 
under this proposal, the Commission would offer (1) a single license 
for service nationwide with the technology platform to be determined by 
the licensee; (2) a nationwide set of PSR licenses conditioned on the 
use of Long Term Evolution (LTE) by the licensees; and (3) a nationwide 
set of PSR licenses conditioned on the use of Worldwide 
Interoperability for Microwave Access (WiMAX) by the licensees. The 
Commission will then award the D Block license(s) in the set that 
receives bids on licenses covering the greatest aggregate population, 
subject to the requirement that the license(s) must

[[Page 57752]]

authorize service in areas covering at least half of the nation's 
population. If more than one set of licenses meeting these requirements 
cover the same population, the Commission will award the D Block 
licenses in the set that receives the highest aggregate gross bid. The 
Commission also proposes to establish auction procedures that will 
encourage bidding on licenses covering as much population as possible, 
including procedures to reduce minimum opening bids on unsold regional 
licenses during bidding under circumstances the Commission specifically 
describes below. The Commission also tentatively concludes that package 
bidding on licenses in the regional sets would serve the public 
interest and that it should direct the Wireless Telecommunications 
Bureau to propose and implement detailed package bidding procedures 
prior to bidding. The Commission tentatively concludes that this method 
of assigning D Block licenses will be most likely to result in the 
successful development of a nationwide interoperable broadband network 
for public safety use, and provides a better means of addressing these 
issues than by specifying a single geographic licensing area or 
broadband technology in advance of competitive bidding. At the same 
time, it will provide all interested bidders with the necessary 
certainty at the time they make their bids of what conditions will be 
applicable to them should their bids be successful.
    5. The Commission proposes significant clarifications and revisions 
of the parties' obligations regarding the construction and operation of 
the shared wireless broadband network. These clarifications and 
revisions address (1) the use of spectrum in the shared wireless 
broadband network, including requirements regarding public safety 
priority access to commercial capacity in emergencies; (2) the 
technical requirements of the shared wireless broadband network; (3) 
the performance requirements of the D Block licensee(s); and (4) the 
respective operational roles of the D Block licensee(s) and the Public 
Safety Broadband Licensee. With regard to spectrum use, the Commission 
first tentatively concludes that a D Block licensee may construct and 
operate its shared wireless broadband network using the entire 20 
megahertz of D Block spectrum and public safety broadband spectrum as a 
combined, blended resource. Under this proposal, public safety users 
will still be guaranteed unconditionally preemptive access to 10 
megahertz of capacity at all times, but the shared wireless broadband 
network may flexibly and dynamically assign frequencies from either the 
D Block or public safety spectrum to provide that capacity. Second, the 
Commission proposes to revise the rules governing public safety 
priority access to D Block spectrum capacity in emergencies. The 
Commission proposed revisions include: (1) Specifying in detail the 
circumstances that trigger public safety priority access to commercial 
spectrum capacity; (2) providing that, in this context, ``priority 
access'' means only that a public safety user would be assigned the 
next available channel within the commercial spectrum over a commercial 
user, and does not include a right to preempt any ongoing commercial 
calls being carried over commercial spectrum capacity; (3) limiting the 
additional capacity that must be provided to public safety users in 
emergencies to a specified percentage of the D Block spectrum capacity; 
(4) requiring that public safety priority access to D Block spectrum 
capacity be limited to the time and geographic scope affected by the 
emergency; and (5) specifying the procedures for requesting and 
obtaining such access. Third, the Commission tentatively concludes that 
the current rules for commercial access to public safety spectrum 
should remain the same subject to the Commission's clarification 
regarding blended use. Thus, the Commission proposes that commercial 
users will have secondary access to public safety's 10 megahertz of 
spectrum capacity subject to unconditional and immediate preemption 
when the spectrum capacity is needed by public safety users. Fourth, 
the Commission finds that the Commission tentative proposals regarding 
spectrum use are consistent with the requirements of Section 337 of the 
Communications Act, as amended.
    6. With regard to the technical requirements of the network, in 
addition to the Commission's proposal regarding the broadband 
technology platform, it makes detailed proposals regarding (1) 
interoperability and public safety roaming; (2) availability, 
robustness, and hardening of the network; (3) capacity, throughput, and 
quality of service; (4) security and encryption; (5) power limits, 
power flux density limits, and related notification and coordination 
requirements; and (6) ensuring the availability of a satellite-capable 
handset.
    7. With regard to the D Block license term and performance 
requirements, the Commission proposes to extend the license term to 
fifteen years and to adopt performance benchmarks applicable at the 
fourth, tenth, and fifteenth years following the license grant date. 
For the first two benchmarks, the Commission proposes to require D 
Block licensees to provide signal coverage and offer service to at 
least 40 percent of the population in each PSR by the end of the fourth 
year, and at least 75 percent by the end of the tenth year. For the 
final benchmark at the fifteenth year, the Commission proposes to adopt 
a ``tiered'' approach, applying one of three different population 
coverage requirements depending on the population density of the PSR: 
(1) For PSRs with an average population density of less than 100 people 
per square mile, the licensee would be required to provide signal 
coverage and offer service to at least 90 percent of the population 
within that PSR; (2) for PSRs with an average population density of at 
least 100 people per square mile and less than 500 people per square 
mile, the licensee would be required to provide signal coverage and 
offer service to at least 94 percent of the population within that PSR; 
and (3) for PSRs with an average population density of at least 500 
people per square mile, the licensee would be required to provide 
signal coverage and offer service to at least 98 percent of the 
population within that PSR.
    8. The Commission also proposes modifications to certain rules 
governing the establishment of the Network Sharing Agreement and the 
licensing of the D Block following bidding for D Block licenses, in 
order to increase the likelihood of successful, rapid deployment of the 
shared wireless broadband network. First, the Commission tentatively 
proposes that it shall be able to offer any D Block license to a second 
highest bidder in the event that the original winning bidder is not 
assigned the license, either due to a failure to enter into an NSA or 
for any reason. Second, the Commission tentatively concludes that a 
winning bidder for a D Block license that is otherwise qualified will 
be liable for default payments only if it chooses not to execute a 
Commission-approved NSA. Thus, an otherwise-qualified winning bidder 
for a D Block license will not be liable for default payments if the 
lack of a Commission-approved NSA results from any other party's 
failure to execute the agreement or a Commission determination that 
there is no acceptable resolution to a dispute regarding terms to be 
included in the agreement. Finally, given the Commission decision to 
offer alternative D Block licenses by auction, the Commission 
tentatively concludes that it should adopt a D Block-specific rule 
regarding the amount of additional

[[Page 57753]]

payments owed by any defaulting bidder. The Commission proposes a rule 
equivalent to the Commission's standard rule with respect to non-
package bidding auctions, i.e., that the Commission will provide that 
the additional payment will be between 3 and 20 percent of the 
applicable bid.
    9. The Commission also addresses certain additional issues related 
to the auction process. In particular, in order to further facilitate 
applications from potentially qualified parties, the Commission 
tentatively concludes that it will not restrict the eligibility to bid 
of any party that may qualify to hold a D Block license and that no 
reserve price beyond the minimum opening bid(s) will apply. 
Furthermore, given the oversight that already applies to the D Block, 
the Commission will codify an existing exception to the Commission's 
designated entity eligibility rules with respect to the spectrum 
capacity of D Block licenses, so that a designated entity applicant or 
licensee with lease or resale (including wholesale) arrangement(s) for 
more than 50% of the spectrum capacity of any D Block license will not 
on that basis alone lose its eligibility for designated entity 
benefits.\7\
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    \7\ Because this exception does not extend to arrangements for 
use of the spectrum capacity of licenses other than the D Block 
license, if an applicant or licensee has an impermissible material 
relationship with respect to the spectrum capacity of any other 
license(s), the normal operation of the Commission's rules will 
continue to render it ineligible for designated entity benefits for 
the D Block license.
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    10. The Commission also makes a number of tentative conclusions and 
proposals with regard to the rules governing public safety users and 
the Public Safety Broadband Licensee. The Commission tentatively 
concludes that eligible users of the public safety broadband spectrum 
capacity must be providers of ``public safety services'' as defined in 
the Act.\8\ The Commission also proposes to reaffirm the Commission 
prior decision to grant the Public Safety Broadband Licensee sole 
discretion regarding whether to permit Federal public safety agency use 
of the public safety broadband spectrum capacity. Further, the 
Commission tentatively concludes not to require eligible public safety 
users to subscribe to the shared broadband network.
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    \8\ See 47 U.S.C. 337(f)(1).
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    11. With respect to the Public Safety Broadband Licensee, the 
Commission tentatively concludes that it should remain a non-profit 
entity, and proposes certain restrictions on its business relationships 
to avoid the potential for conflicts of interest. Specifically, the 
Commission proposes that an entity serving as an advisor, agent, or 
manager of the Public Safety Broadband Licensee will be ineligible to 
become a D Block licensee unless such entity completely severs its 
business relationship with the Public Safety Broadband Licensee no 
later than thirty days following release of an oder adopting final 
rules in this proceeding. Further, the Commission proposes to prohibit 
advisors, agents, or managers of the Public Safety Broadband Licensee 
from establishing business relationships with third party entities 
having a financial interest in the decisions of the Public Safety 
Broadband Licensee.
    12. With respect to the mechanism of funding the Public Safety 
Broadband Licensee, the Commission tentatively concludes that the 
nationwide D Block licensee or, if the D Block is licensed on a 
regional basis, each regional D Block licensee, will make an annual 
payment to the Public Safety Broadband Licensee, which would constitute 
the sole allowable source of funding for the Public Safety Broadband 
Licensee's annual operating and administrative costs. The Commission 
further tentatively concludes that the Public Safety Broadband Licensee 
must establish an audited annual budgeting process, and must submit its 
proposed annual budget to the Commission for approval. The Commission 
also reserves the right to request an audit of the Public Safety 
Broadband Licensee's expenses at any time. The Commission further 
tentatively concludes that it should establish fixed nationwide service 
fees that the D Block licensee may charge to public safety users based 
on a discounted rate schedule.
    13. The Commission proposes several changes to the Public Safety 
Broadband Licensee's articles of incorporation and by-laws. 
Specifically, the Commission proposes replacing the Public Safety 
Broadband Licensee board of directors position currently held by the 
National Emergency Management Association (NEMA) with the National 
Regional Planning Council (NRPC). The Commission also tentatively 
concludes that the positions of Chairman of the Board and Chief 
Executive Officer must be filled by separate individuals; that the 
Public Safety Spectrum Trust Corporation (PSST) may not hire a new 
individual to fill the CEO position until the D Block licensee(s) has 
made funding available to the PSST for its administrative and 
operational costs; and that any individual appointed as CEO cannot have 
served on the Public Safety Broadband Licensee executive committee 
during the period three years prior to his or her appointment as CEO. 
The Commission also tentatively concludes that the PSST board should 
elect a new executive committee with proposed new conditions on term 
limits, consecutive terms, and committee size. Further, the Commission 
tentatively concludes that it will require three-fourths supermajority 
voting on all major decisions by the board, that board meetings be open 
to the public (with some exceptions), that the minutes of each board 
meeting must be made publicly available (again with some exceptions), 
and several other conditions. The Commission tentatively declines to 
rescind the present PSST's license and reissue the license to a new 
licensee.
    14. In relation to narrowband relocation issues, the Commission 
tentatively concludes that the Commission will extend the current 
February 17, 2009 deadline for completing such relocation twelve months 
from the date upon which narrowband relocation funding is made 
available by the D Block licensee(s). The Commission also proposes that 
the current $10 million cap on narrowband relocation costs should be 
increased to $27 million. The Commission also tentatively concludes 
that the existing August 30, 2007 cut-off date for narrowband 
deployments outside of the consolidated narrowband spectrum should not 
be changed, and propose conditions under which waiver relief may be 
granted for deployment of narrowband equipment beyond that date.
    15. The Commission seeks comment on all of the tentative 
conclusions and proposals presented in this Third FNPRM, and on whether 
these proposals will lead to a successful auction and, more 
importantly, a successful partnership or partnerships that will fulfill 
the Commission's goal of making interoperable broadband wireless 
service available to public safety entities across the Nation.

II. Background

    16. In this section, the Commission reviews the history of its 
efforts to establish a public/private partnership to address the need 
for nationwide interoperable public safety communications and to 
promote public safety access to advanced broadband communication 
systems and technologies. The Commission first describes the rules it 
promulgated in the Second Report and Order, which established two 
nationwide 700 MHz licenses, the Public Safety Broadband License and 
the commercial D Block license, and required the licensees to

[[Page 57754]]

enter into a public/private partnership for the purpose of constructing 
and operating a nationwide wireless broadband network meeting specified 
terms. The Commission reviews petitions for reconsideration of the 
Second Report and Order that raised issues related to this proceeding. 
The Commission briefly discusses Auction 73, the auction of commercial 
700 MHz licenses concluded earlier this year in which the Commission 
auctioned the D Block under the public/private partnership rules but 
did not receive a winning bid. Finally, the Commission summarizes the 
Second FNPRM, which commenced the process of revisiting and 
reconsidering the public/private partnership rules that the Commission 
continues now in the present Third FNPRM.
A. 700 MHz Second Report and Order
    17. The commercial and public safety spectrum bands at issue in 
this proceeding are part of the 700 MHz Band (698-806 MHz), which is 
currently occupied by television broadcasters, but which must be 
cleared of such transmissions and made available for wireless services 
by February 17, 2009, as part of the digital television (DTV) 
transition.\9\ Pursuant to Congress's direction in the Balanced Budget 
Act of 1997 (Balanced Budget Act), codified at section 337(a) of the 
Act, the Commission has allocated, in the Upper 700 MHz Band (746-806 
MHz), 24 megahertz of spectrum for public safety services and 36 
megahertz for commercial services.\10\
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    \9\ See Deficit Reduction Act of 2005, Public Law No. 109-171, 
120 Stat. 4 (2006).
    \10\ See Balanced Budget Act of 1997, Public Law No. 105-33, 111 
Stat. 251 sec. 3004 (1997) (adding new sec. 337 of the 
Communications Act); Reallocation of Television Channels 60-69, the 
746-806 MHz Band, ET Docket No. 97-157, Report and Order, 12 FCC Rcd 
22953, 22955 para. 5 (1998), recon. 13 FCC Rcd 21578 (1998) (Upper 
700 MHz Reallocation Order).
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    18. In the Second Report and Order, the Commission established, 
among other rules regarding the 700 MHz Band, rules for the 700 MHz 
public safety spectrum and one block of the Upper 700 MHz commercial 
spectrum that would promote the creation of a nationwide, interoperable 
broadband public safety network. With regard to the public safety 
spectrum, the Commission designated the lower half of the spectrum (the 
763-768 MHz and 793-798 MHz bands) for public safety broadband 
communications, and consolidated existing narrowband allocations, 
previously located in both the lower and upper ends of the public 
safety spectrum, in the upper half of the spectrum (the 769-775 MHz and 
799-805 MHz bands) exclusively.\11\ The Commission also created a 
single nationwide license for the public safety broadband spectrum, the 
Public Safety Broadband License, and the Commission specified the 
criteria, selection process, and responsibilities of the licensee 
assigned this spectrum, including a requirement that the licensee must 
be a non-profit organization.\12\
---------------------------------------------------------------------------

    \11\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322. 
The Commission also created an internal guard band in the 768-769 
MHz and 798-799 MHz bands located between the broadband and 
narrowband allocations. Id.
    \12\ See Second Report and Order, 22 FCC Rcd at 15406 para. 322.
---------------------------------------------------------------------------

    19. With regard to the commercial spectrum in the 700 MHz Band, and 
as described in greater detail below, the Commission created a 
nationwide license in the D Block (the 758-763 MHz and 788-793 MHz 
bands, located adjacent to the public safety broadband spectrum), and 
required the D Block licensee, working with the Public Safety Broadband 
Licensee in a public/private partnership (the 700 MHz Public/Private 
Partnership) and using the spectrum associated with both licenses, to 
construct and operate a nationwide network that would be shared by 
commercial and public safety users.\13\
---------------------------------------------------------------------------

    \13\ Id. at 15428 para. 386.
---------------------------------------------------------------------------

    20. 700 MHz Public/Private Partnership. The Commission mandated the 
700 MHz Public/Private Partnership between two nationwide licensees to 
promote the rapid deployment of a nationwide, interoperable, broadband 
public safety network that was robust, cost effective, spectrally 
efficient, and based on a flexible IP-based, modern architecture.\14\ 
The Commission found that nationwide licensing would best serve these 
goals by centralizing the responsibilities for implementing and 
administering a broadband network across the entire country, creating 
economies of scale, and avoiding a fragmented approach to network 
construction. The Commission further determined that the public/private 
partnership, by promoting commercial investment in the build-out of a 
shared network infrastructure for both commercial and public safety 
users, would address ``the most significant obstacle to constructing a 
public safety network--the limited availability of public funding.'' 
\15\ The Commission concluded that providing for a shared 
infrastructure using the D Block and the public safety broadband 
spectrum would help achieve significant cost efficiencies. The 
Commission noted that this would allow public safety agencies ``to take 
advantage of commercial, off-the-shelf technology and otherwise benefit 
from commercial carriers' investments in research and development of 
advanced wireless technologies.'' \16\ The Commission stated that this 
approach would also benefit the public safety community by providing it 
with access to an additional 10 megahertz of broadband spectrum during 
emergencies.\17\ Most importantly, the Commission anticipated that this 
particular public/private partnership approach would provide all of 
these public safety benefits on a nationwide basis.\18\ The Commission 
noted that the 700 MHz Public/Private Partnership would also provide 
the D Block licensee with benefits, including the right to operate 
commercial services in the 10 megahertz of public safety broadband 
spectrum on a secondary, preemptible basis, which would both help to 
defray the costs of build-out and ensure that the spectrum is used 
efficiently.\19\
---------------------------------------------------------------------------

    \14\ Id. at 15420 para. 369, 15431 para. 396. See also 
Implementing a Nationwide, Broadband, Interoperable Public Safety 
Network in the 700 MHz Band, Development of Operational, Technical 
and Spectrum Requirements for Meeting Federal, State and Local 
Public Safety Communications Requirements Through the Year 2010, PS 
Docket No. 06-229, WT Docket No. 96-86, Ninth Notice of Proposed 
Rulemaking, 21 FCC Rcd 14837, 14842-43 (2006) (700 MHz Public Safety 
Ninth Notice).
    \15\ Second Report and Order, 22 FCC Rcd at 15431 para. 396.
    \16\ Id.
    \17\ Id.
    \18\ Id.
    \19\ Id.
---------------------------------------------------------------------------

    21. To ensure that the 700 MHz Public/Private Partnership would 
serve the needs of the public safety community and to address concerns 
about its success, the Commission specified certain mandatory features. 
First, the Commission specified requirements regarding the shared 
network to be constructed and the timing for that construction. In 
particular, the Commission established certain technical requirements 
for the shared network, including requirements relating to the network 
technology platform, signal coverage, robustness and reliability, 
capacity, security, operational capabilities and control, and certain 
equipment specifications.\20\ With regard to the spectrum shared by the 
common network, the Commission required that the Public Safety 
Broadband Licensee lease the public safety broadband spectrum for 
commercial use by the D Block licensee on a secondary, preemptible 
basis, and that the public safety entities have priority access to the 
D Block spectrum

[[Page 57755]]

during emergencies.\21\ To ensure timely construction and nationwide 
coverage, the Commission specified performance requirements, including 
three population-based build-out benchmarks requiring the D Block 
licensee to provide signal coverage and offer service to (1) at least 
75 percent of the population of the nationwide D Block license area by 
the end of the fourth year after the DTV transition date, (2) at least 
95 percent of the population of the nationwide license area by the end 
of the seventh year, and (3) at least 99.3 percent of the population of 
the nationwide license area by the end of the tenth year.\22\
---------------------------------------------------------------------------

    \20\ Id. at 15433-34 para. 405.
    \21\ Id. at 15432 para. 399, 15434-43 paras. 407-31.
    \22\ Id. at 15432 para. 399, 15433-44 paras. 403-06, 15443-46 
paras. 432-43.
---------------------------------------------------------------------------

    22. Next, while finding it appropriate to establish these mandatory 
terms, the Commission also concluded that many details of the 700 MHz 
Public/Private Partnership should be left to the parties to 
negotiate.\23\ Accordingly, the Commission established that the terms 
of the 700 MHz Public/Private Partnership would be governed both by 
Commission rules and by a Network Sharing Agreement (NSA) between the 
winning bidder for the D Block license and the Public Safety Broadband 
Licensee.\24\ The Commission further provided rules governing the 
process by which the parties would establish the NSA, requiring among 
other things that negotiations begin by a date certain and conclude 
within six months, and providing that the D Block license application 
would not be granted until the parties obtained Commission approval of 
the agreement, executed the approved agreement, and then filed it with 
the Commission.\25\ The Commission further specified rules to govern in 
the event of a negotiation dispute. Specifically, the Commission 
provided that if, at the end of the six month negotiation period, or on 
their own motion at any time, the Chiefs of the Public Safety and 
Homeland Security Bureau (PSHSB) and the Wireless Telecommunications 
Bureau (WTB) found that negotiations had reached an impasse, they could 
take actions including but not limited to issuing a decision on the 
disputed issues and requiring the submission of a draft agreement 
consistent with their decision.\26\ The Commission also provided that 
if the D Block winning bidder failed to comply with the procedures the 
Commission established for negotiation or dispute resolution, failed to 
receive final Commission approval of an NSA, or failed to execute an 
approved NSA, it would be deemed to have defaulted on its license and 
would be subject to the default payments required by Section 1.2109 of 
the Commission rules.\27\
---------------------------------------------------------------------------

    \23\ Id. at 15488 para. 447.
    \24\ Id. at 15432 paras. 399-400, 15447-49 paras. 444-54.
    \25\ Id. at 15448 para. 447.
    \26\ Id. at 15465 para. 508.
    \27\ Id. at 15466 para. 511.
---------------------------------------------------------------------------

    23. The Commission also established a number of measures to 
safeguard the interests of public safety on an ongoing basis after the 
NSA is executed. These measures included: (1) Requirements related to 
the organization and structure of the 700 MHz Public/Private 
Partnership, intended to protect the D Block license and network assets 
from being drawn into a bankruptcy proceeding; (2) a prohibition on 
discontinuance of service provided to public safety entities; (3) 
special remedies in the event that the D Block licensee or Public 
Safety Broadband Licensee fails to comply with either the Commission's 
rules or the terms of the NSA; (4) a special, exclusive process for 
resolving any disputes related to the execution of the terms of the 
NSA; and (5) ongoing reporting obligations.\28\
---------------------------------------------------------------------------

    \28\ Id. at 15466-71 para. 513-30.
---------------------------------------------------------------------------

    24. Reserve Price for the Auction of the D Block. In the Second 
Report and Order, the Commission also concluded that block-specific 
aggregate reserve prices should be established for each commercial 
license block--the A, B, C, D, and E Blocks--to be auctioned in Auction 
73, and directed WTB to adopt and publicly disclose those reserve 
prices prior to the auction, pursuant to its existing delegated 
authority and consistent with the Commission directions.\29\ For the D 
Block, the Commission concluded that WTB should consider certain 
factors in setting the D Block reserve price, including the 700 MHz 
Public/Private Partnership conditions, which might suggest a reserve 
price of $1.33 billion. The Commission provided that, in the event that 
bids for the D Block license did not meet the reserve price, the 
Commission would leave open the possibility of offering the license on 
the same terms or re-evaluating the D Block license conditions.\30\
---------------------------------------------------------------------------

    \29\ See id. at 15400 para. 301.
    \30\ See id. at 15404 para. 314.
---------------------------------------------------------------------------

    25. Narrowband Relocation. As discussed above, to promote public 
safety access to a nationwide, interoperable broadband network, the 
Commission designated the lower half of the public safety spectrum for 
public safety broadband communications, and consolidated existing 
narrowband allocations, previously located in both the lower and upper 
ends of the public safety spectrum, in the upper half of the 
spectrum.\31\ The Commission also shifted the entire public safety band 
down one megahertz, so that it would be immediately adjacent to the D 
Block spectrum, to further facilitate the development of a shared 
wireless broadband network over both D Block and public safety 
broadband spectrum.\32\ Both the 1-megahertz shift and the narrowband 
consolidation, however, left certain existing public safety narrowband 
operations outside of the spectrum now designated for narrowband 
services.
---------------------------------------------------------------------------

    \31\ See id. at 15406 para. 322. The Commission also created an 
internal guard band in the 768-769 MHz and 798-799 MHz bands located 
between the broadband and narrowband allocations. Id.
    \32\ See id. at 15333 para. 111.
---------------------------------------------------------------------------

    26. The Commission provided in the Second Report and Order that all 
700 MHz narrowband public safety operations outside of the newly 
consolidated narrowband spectrum must be relocated to that spectrum no 
later than the DTV transition date.\33\ To effectuate the consolidation 
of the narrowband channels, the Commission required the D Block 
licensee to pay the costs of relocating narrowband radios and capped 
the disbursement amount for such relocation costs at $10 million.\34\ 
The Commission also cautioned that any narrowband equipment deployed in 
the 764-770 MHz and 794-800 MHz bands (channels 63 and 68), or in the 
775-776 MHz and 805-806 MHz bands (the upper one megahertz of channels 
64 and 69), more than 30 days following the adoption date of the Second 
Report and Order would be ineligible for relocation funding.\35\ In 
addition, the Commission prohibited authorization of any new narrowband 
operations in that spectrum, as of 30 days following the adoption date 
of the Second Report and Order.\36\ Subsequent to the release of the 
Second Report and Order, the Commission granted limited waivers to two 
parties that permitted them to continue to deploy new narrowband 
operations outside the consolidated narrowband spectrum after August 
30, 2007.\37\ The Commission deferred

[[Page 57756]]

decision on other issues raised by their requests, however, including 
the appropriate duration of the relief and whether the parties would be 
entitled to reimbursement for the costs of relocating narrowband 
operations deployed after August 30, 2007.
---------------------------------------------------------------------------

    \33\ Id. at 15410 para. 332.
    \34\ Id. at 15412 para. 341.
    \35\ Id. at 15412 para. 339.
    \36\ Id.
    \37\ See Implementation of a Nationwide, Broadband, 
Interoperable Public Safety Network in the 700 MHz Band; Development 
of Operational, Technical and Spectrum Requirements for Meeting 
Federal, State and Local Public Safety Communications Requirements 
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86, 
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band; 
Development of Operational, Technical and Spectrum Requirements for 
Meeting Federal, State and Local Public Safety Communications 
Requirements Through the Year 2010; Request for Waiver of Pierce 
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC 
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------

B. Petitions for Reconsideration
    27. Ten parties filed petitions for reconsideration seeking review 
of various aspects of the Second Report and Order.\38\ Three of the 
petitions sought reconsideration of the rules governing the 700 MHz 
Public/Private Partnership specifically.\39\ All three of these 
petitioners argued that the application of the default payment rules to 
the D Block winner in the event of a failure to establish an NSA should 
be modified, for example, by imposing such payment obligations only if 
the D Block winner is found to have negotiated in bad faith.\40\ One 
petitioner also argued that network requirements should be specified 
more precisely for potential bidders prior to auction.\41\ Conversely, 
another of these petitioners argued that, in some respects, the 
technical requirements in the rules were too specific, and that the 
Commission should ``not prematurely rule on specific technical issues, 
[and] should instead allow the [Public Safety Broadband Licensee] and D 
Block winner to develop those details as they negotiate the NSA * * * 
.'' \42\
---------------------------------------------------------------------------

    \38\ AT&T Inc. Petition for Reconsideration and Clarification, 
WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) 
(AT&T Petition for Reconsideration); Blooston Rural Carriers 
Petition for Partial Reconsideration and/or Clarification, WT Docket 
No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (Blooston 
Petition for Reconsideration); Petition for Reconsideration of the 
Ad Hoc Public Interest Spectrum Coalition, WT Docket No. 06-150; PS 
Docket No. 06-229 (filed Sept. 24, 2007) (PISC Petition for 
Reconsideration); Cyren Call Communications Corporation Petition for 
Reconsideration and for Clarification, WT Docket No. 06-150; PS 
Docket No. 06-229 (filed Sept. 24, 2007) (Cyren Call Petition for 
Reconsideration); Frontline Wireless, LLC Petition for 
Reconsideration (filed Sept. 24, 2007); Pierce Transit Petition for 
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed 
Sept. 24, 2007) (Pierce Transit Petition for Reconsideration); Rural 
Telecommunications Group, Inc. Petition for Reconsideration, WT 
Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007) (RTG 
Petition for Reconsideration); Commonwealth of Virginia Petition for 
Reconsideration, WT Docket No. 06-150; PS Docket No. 06-229 (filed 
Sept. 24, 2007) (Virginia Petition for Reconsideration); NTCH, Inc. 
Petition for Partial Reconsideration, WT Docket No. 06-150; PS 
Docket No. 06-229 (filed Sept. 21, 2007) (NTCH Petition for 
Reconsideration); MetroPCS Communications, Inc. Petition for 
Clarification and Reconsideration, WT Docket No. 06-150; PS Docket 
No. 06-229 (filed Sept. 20, 2007) (MetroPCS Petition for 
Reconsideration).
    \39\ See AT&T Petition for Reconsideration; Cyren Call Petition 
for Reconsideration; Frontline Petition for Reconsideration. The 
Frontline September 20, 2007 Request also seeks changes to the rules 
governing the 700 MHz Public/Private Partnership. See Request to 
Further Safeguard Public Safety Service by Frontline Wireless, WT 
Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20, 
2007 Request).
    \40\ See AT&T Petition for Reconsideration at 7-9; Cyren Call 
Petition for Reconsideration at 5-7; Frontline Petition for 
Reconsideration at 23-25.
    \41\ See AT&T Petition for Reconsideration at 5.
    \42\ See Frontline Petition for Reconsideration at 22. See also 
Cyren Call Petition for Reconsideration at 7.
---------------------------------------------------------------------------

    28. Two of the ten petitioners sought reconsideration of the 
aggregate reserve prices set for the commercial license blocks, 
including the reserve price for the D Block.\43\ These petitioners 
presented related arguments in the pre-auction process.\44\ After 
considering the arguments, WTB established reserve prices consistent 
with the direction of the Second Report and Order, including setting a 
$1.33 billion reserve price for the D Block.\45\
---------------------------------------------------------------------------

    \43\ See, generally, Frontline Petition for Reconsideration; 
MetroPCS Petition for Reconsideration.
    \44\ See Auction of 700 MHz Band Licenses Scheduled for January 
24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and 
other Procedures for Auctions 73 and 76, Public Notice, 22 FCC Rcd 
18141, 18194-95 paras. 197-90 (2007) (Auction 73/76 Procedures 
Public Notice).
    \45\ See id. at 18193-96 paras. 194-200.
---------------------------------------------------------------------------

    29. Finally, two other parties filed petitions seeking 
reconsideration of some or all of the requirements regarding public 
safety narrowband relocation, as well as requests for waiver of some of 
these requirements.\46\ The requests for waiver have since been granted 
in part.\47\ The two petitions, however, together with the other 
petitions seeking reconsideration of the Second Report and Order, 
remain pending.
---------------------------------------------------------------------------

    \46\ See Virginia Petition for Reconsideration; Pierce Transit 
Petition for Reconsideration.
    \47\ See Implementation of a Nationwide, Broadband, 
Interoperable Public Safety Network in the 700 MHz Band; Development 
of Operational, Technical and Spectrum Requirements for Meeting 
Federal, State and Local Public Safety Communications Requirements 
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86, 
Order, 22 FCC Rcd 20290 (2007); Implementing a Nationwide, 
Broadband, Interoperable Public Safety Network in the 700 MHz Band; 
Development of Operational, Technical and Spectrum Requirements for 
Meeting Federal, State and Local Public Safety Communications 
Requirements Through the Year 2010; Request for Waiver of Pierce 
Transit, PS Docket No. 06-229, WT Docket No. 96-86, Order, 23 FCC 
Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------

C. Auction 73
    30. Results of the Auction. The auction of the D Block and other 
700 MHz Band licenses, designated Auction 73, commenced on January 24, 
2008, and closed on March 18, 2008.\48\ While the bids for licenses 
associated with the other 700 MHz Band blocks offered at Auction 73 
(the A, B, C, and E Blocks) exceeded the applicable aggregate reserve 
prices for those blocks, the nationwide D Block license received only a 
single bid that did not meet its reserve price of $1.33 billion and 
thus did not become a winning bid.\49\ On March 20, 2008, the 
Commission determined that the Commission would not proceed immediately 
to re-auction the D Block license in order to provide us additional 
time to consider the Commission options.\50\
---------------------------------------------------------------------------

    \48\ See Auction 73, 700 MHz Band, at http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
    \49\ See id.; see also Auction of 700 MHz Band Licenses Closes, 
Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz Auction 
Closing Public Notice). http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73. Specifically, a bid of $472 
million was entered by Qualcomm in Round 1 of the auction.
    \50\ See Auction of the D Block License in the 758-763 and 788-
793 Bands, AU Docket No. 07-157, Order, 23 FCC Rcd 5421, para. 5 
(2008) (D Block Post-Auction Order).
---------------------------------------------------------------------------

    31. Inspector General's Report. On April 25, 2008, the Office of 
Inspector General (OIG) issued a report on its investigation of 
allegations that certain statements made by an advisor to the Public 
Safety Broadband Licensee to potential bidders for the D Block license 
in Auction 73, particularly those regarding the spectrum lease payments 
that the Public Safety Broadband Licensee would request from the D 
Block licensee for use of public safety spectrum, had the effect of 
deterring various companies from bidding on the D Block.\51\ The OIG 
determined that the statements in question were ``not the only factor 
in the companies' decision not to bid on the D Block.'' Rather, it 
concluded that ``the uncertainties and risks associated with the D 
Block, including, but not limited to, the negotiation framework with 
[the Public Safety Broadband Licensee], the potential for default 
payment if negotiations failed, and the costs of the build-out and the 
operations of the network, taken together, deterred each of the 
companies from bidding on the D Block.'' \52\
---------------------------------------------------------------------------

    \51\ See Office of Inspector General Report, from Kent R. 
Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel. 
Apr. 25, 2008) (OIG Report).
    \52\ OIG Report at 2.
---------------------------------------------------------------------------

D. Second Further Notice of Proposed Rulemaking
    32. On May 14, 2008, to begin the process of reconsidering the 
appropriate rules for the D Block and the Public

[[Page 57757]]

Safety Broadband License, the Commission released the Second Further 
Notice of Proposed Rulemaking (Second FNPRM). In the Second FNPRM, the 
Commission enumerated the following goals and principles for this 
rulemaking proceeding:
    <bullet> To facilitate public safety access to a nationwide, 
interoperable broadband network in a timely manner;
    <bullet> To identify concerns in the existing structure of the 700 
MHz Public/Private Partnership to inform the Commission decision making 
going forward;
    <bullet> To promote wireless innovation and broadband network 
penetration while meeting the communications needs of the first 
responder community in a commercially viable manner;
    <bullet> To identify funding opportunities for the public safety 
community to realize the promise of a broadband communications 
infrastructure with a nationwide level of interoperability; and
    <bullet> To maximize the commercial and public safety benefits of 
the D Block spectrum.\53\
---------------------------------------------------------------------------

    \53\ See Second FNPRM, 23 FCC Rcd at 8052 para. 6.
---------------------------------------------------------------------------

    33. With these goals and principles in mind, the Commission sought 
comment first on whether and how to clarify or revise the rules 
governing the public safety component of the 700 MHz Public/Private 
Partnership, including rules governing the Public Safety Broadband 
Licensee, the entities eligible to obtain access to the public safety 
broadband network,\54\ and the relocation of public safety narrowband 
operations.
---------------------------------------------------------------------------

    \54\ See id. at 8058-8062 paras. 24-32. The term ``public safety 
broadband network,'' which the Commission has used in the Second 
FNPRM and again in this Third FNPRM, refers to those functions and 
services of the shared network to which the Public Safety Broadband 
Licensee will administer access.
---------------------------------------------------------------------------

    34. With regard to the Public Safety Broadband Licensee, the 
Commission sought comment on (1) whether to revise or clarify the 
structure and criteria of the Public Safety Broadband Licensee as 
adopted in the Second Report and Order, including whether to clarify 
the requirement that the Public Safety Broadband Licensee must be a 
non-profit organization; \55\ (2) how the Public Safety Broadband 
Licensee should be funded; \56\ (3) whether to adopt additional 
measures to better enable Commission or Congressional oversight of the 
Public Safety Broadband Licensee's activities; \57\ and (4) whether, in 
light of these and other possible changes, the Commission should 
rescind the current Public Safety Broadband License and seek new 
applicants.\58\
---------------------------------------------------------------------------

    \55\ See id. at 8064 para. 40, 8067 para. 48.
    \56\ See id. at 8065-8065 paras. 42-45
    \57\ See id. at 8067 para. 48, 8068 para. 51.
    \58\ See id. at 8068 para. 53.
---------------------------------------------------------------------------

    35. Regarding access to the public safety broadband network, the 
Commission sought comment on (1) whether to clarify which entities are 
eligible to use the public safety broadband network; (2) whether to 
adopt measures requiring or promoting use of the public safety 
broadband network by eligible public safety entities; \59\ (3) whether 
State governments should have a role in coordinating the participation 
of public safety entities in the public safety broadband network; \60\ 
and (4) whether to revise the rules regarding use of the public safety 
broadband network by Federal public safety agencies.\61\
---------------------------------------------------------------------------

    \59\ See id. at 8063 para. 37.
    \60\ See id. at 8068 para. 52.
    \61\ See id. at 8092-93 para. 126.
---------------------------------------------------------------------------

    36. With regard to the relocation of public safety narrowband 
operations, the Commission sought comment on issues including (1) 
whether to revise or eliminate the cap on relocation expenses; (2) 
whether, in light of the proposed re-auction of the D Block and 
associated timing issues, the Commission should continue to require 
relocation to be completed by the DTV transition date; (3) whether to 
amend the process for accomplishing the relocation; and (4) whether the 
Commission should extend the August 30, 2007 cut-off date for new 
narrowband deployments outside the consolidated narrowband 
spectrum.\62\
---------------------------------------------------------------------------

    \62\ See id. at 8111 paras. 180-182.
---------------------------------------------------------------------------

    37. Turning to the 700 MHz Public/Private Partnership, the 
Commission asked, as a central matter, whether the Commission should 
continue to require the D Block licensee and the Public Safety 
Broadband Licensee to enter into a 700 MHz Public/Private 
Partnership.\63\ The Commission further sought comment on a broad set 
of possible revisions to the 700 MHz Public/Private Partnership in the 
event the Commission continued that requirement, and on which changes 
would best serve the goal of making a broadband, interoperable network 
available on a nationwide basis to public safety entities.\64\
---------------------------------------------------------------------------

    \63\ See id. at 8069 para. 54.
    \64\ See id. at 8069 para. 54, 8070 para. 58.
---------------------------------------------------------------------------

    38. In particular, the Commission sought comment on (1) whether to 
establish a single nationwide D Block licensee or create multiple D 
Block licenses with, for example, Regional Economic Area Grouping 
(REAG) geographic license areas; \65\ (2) whether to revise or clarify 
the technical requirements of the shared network that the D Block 
licensee must construct; \66\ (3) whether the Commission should 
continue to require that the D Block licensee provide the Public Safety 
Broadband Licensee, in emergencies, with priority access to the D Block 
spectrum, and if so, whether the Commission should specify the 
circumstances that constitute an emergency for this purpose or 
establish other limits to such emergency priority access; \67\(4) 
whether to revise the D Block licensee's network build-out or 
performance requirements and the extent to which they could be met 
through non-cellular technologies such as Mobile Satellite Systems 
(MSS); \68\ (5) whether to revise or clarify the respective operational 
roles of the D Block licensee and the Public Safety Broadband Licensee 
in the provision of network services to public safety users once the 
shared network is constructed; \69\ and (6) whether the Commission 
should regulate network service fees.\70\
---------------------------------------------------------------------------

    \65\ See id. at 8109-8112 paras. 183-86.
    \66\ See id. at 8071-78 paras. 61-83.
    \67\ See id. at 8079-80 paras. 85-87.
    \68\ See id. at 8081-86 paras. 90-105
    \69\ See id. at 8088-89 paras. 113-16, 8090-92 paras. 121-26.
    \70\ See id. at 8094-95 paras. 131-33.
---------------------------------------------------------------------------

    39. The Commission further sought comment on the process by which 
these parties would establish a NSA that would further define the terms 
of the 700 MHz Public/Private Partnership. Among other issues, the 
Commission sought comment regarding (1) what rules should apply to the 
negotiation of the NSA; (2) whether to adopt dispute resolution 
procedures in the event the parties are unable to negotiate a voluntary 
agreement on NSA terms and if so, whether such procedures should 
include mandatory and binding adjudication of the disputes; (3) in the 
event that the process, with or without adjudication, is ultimately 
unsuccessful in establishing an NSA, whether and to what extent the D 
Block winner should be held liable for default payments; (4) whether, 
in the event of a failure to establish an NSA, the Commission should 
offer the D Block license to the next highest bidder or immediately re-
auction it without the 700 MHz Public/Private Partnership condition; 
and (5) if a further re-auction is required, whether the D Block 
winning bidder should be prohibited from participating.\71\
---------------------------------------------------------------------------

    \71\ See id. at 8096-8100 paras. 138-54.
---------------------------------------------------------------------------

    40. The Commission also sought comment on a number of other 
auction-related issues, including (1) whether to restrict who may 
participate in the new auction of the D Block license; (2)

[[Page 57758]]

whether to establish a reserve price for such an auction and if so, at 
what level; \72\ (3) whether to adopt an exception to the impermissible 
material relationship rule for the determination of designated entity 
eligibility with respect to arrangements for the lease or resale 
(including wholesale) of the spectrum capacity of the D Block license; 
\73\ and (4) whether to modify the amount of the default payment 
potentially applicable to the D Block winning bidder.\74\
---------------------------------------------------------------------------

    \72\ See id. at 8104 paras. 163-64.
    \73\ See id. at 8105-06 paras. 166-67.
    \74\ See id. at 8108-09 paras. 172-75.
---------------------------------------------------------------------------

    41. In addition to seeking comment on rules in the event that the 
Commission retains the 700 MHz Public/Private Partnership requirement, 
the Commission also sought comment on alternative rules for both the D 
Block and the Public Safety Broadband License in the event that the 
Commission does not retain the requirement. For the D Block, the 
Commission sought comment in particular on the appropriate geographic 
license area, performance requirements, license block size and license 
term, power and out-of-band-emission (OOBE) limits, and licensing 
partitioning and disaggregation rules, and whether to impose conditions 
such as an open-platform or wholesale requirement.\75\ For the Public 
Safety Broadband Licensee, the Commission sought comment on how the 
Commission might still achieve the goal of ensuring that a nationwide, 
interoperable broadband network is available for use of public safety, 
and whether there are rules the Commission should impose on the Public 
Safety Broadband Licensee to achieve that goal.\76\
---------------------------------------------------------------------------

    \75\ See id. at 8115-16 paras. 192-205.
    \76\ See id. at 8119-20 paras. 206-212.
---------------------------------------------------------------------------

    42. Finally, the Commission provided in the Second FNPRM that, 
before adopting final rules to address the issues raised therein, the 
Commission would present for public comment, in a subsequent further 
notice of proposed rulemaking, a detailed proposal including the 
specific rules that the Commission intended to promulgate.\77\ The 
Commission further indicated that the Commission would seek comment on 
an expedited basis.\78\
---------------------------------------------------------------------------

    \77\ See id. at 8052 para. 7.
    \78\ See id. at 8052 n. 10.
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III. Discussion

A. Whether to Retain the 700 MHz Public/Private Partnership Condition
    43. Background. In the Second Report and Order, the Commission 
established rules mandating a public/private partnership between two 
nationwide licensees in the 700 MHz spectrum, the licensee of the 
commercial D Block and the Commission-designated licensee of the public 
safety broadband spectrum (Public Safety Broadband Licensee), to 
address the critical need of public safety users for interoperable, 
broadband communications. These rules required the D Block licensee to 
construct and operate a nationwide, interoperable broadband network 
across both the D Block and 700 MHz public safety broadband spectrum to 
provide broadband network services to both commercial and public safety 
entities.
    44. The Commission found that promoting commercial investment in 
the build-out of a shared network infrastructure would address the most 
significant obstacle to constructing a public safety network--the 
limited availability of public funding. The Commission further 
determined that the network, by relying on a shared infrastructure to 
provide both commercial and public safety services, would achieve 
significant cost efficiencies, and benefit public safety agencies by 
allowing them to take advantage of off-the-shelf technology and 
commercial carriers' investments in research and development of 
advanced wireless technologies, as well as provide them with access to 
an additional 10 megahertz of broadband spectrum during emergencies. 
The Commission concluded that the public/private partnership approach 
thus provided the most practical means of speeding deployment of a 
nationwide, interoperable, broadband network for public safety service 
that is designed to meet their needs in times of crisis. At the same 
time, the Commission noted, it would provide the D Block licensee with 
rights to operate commercial services in the 10 megahertz of public 
safety broadband spectrum on a secondary, preemptible basis, which the 
Commission anticipated would help to defray the costs of build-out and 
also ensure that the spectrum is used efficiently.
    45. In the Second FNPRM, the Commission sought comment on whether 
the public interest would best be served by the development of a 
nationwide, interoperable wireless broadband network for both 
commercial and public safety services through the 700 MHz Public/
Private Partnership between the D Block licensee and the Public Safety 
Broadband Licensee, and whether the Commission should therefore 
continue to require that the D Block licensee and Public Safety 
Broadband Licensee enter into the 700 MHz Public/Private Partnership.
    46. Comments. In response to the Second FNPRM, numerous commenters 
representing both public safety and commercial interests support 
continuing to require a public/private partnership between the D Block 
licensee and the Public Safety Broadband Licensee.\79\ These commenters 
emphasize the importance of providing public safety first responders 
with an interoperable broadband wireless network \80\ and they argue 
that a public/private partnership remains the best and possibly the 
only means of achieving these goals.\81\ In particular, they argue that 
a public/private partnership is the only viable means of funding the 
construction of a nationwide network.\82\ While noting that legislative 
appropriations could theoretically fund such a network, they

[[Page 57759]]

assert that such funding is not going to be forthcoming, or that it is 
too uncertain for the Commission to rely upon.\83\
---------------------------------------------------------------------------

    \79\ See ACT Comments at 1; ALU Comments at 1; AASHTO Comments 
at 7; APCO Comments at 3; AT&T Comments at 2-4; Big Bend Comments at 
1; California Comments at 7; Cellular South Comments at 1-2; 
Ericsson Comments at 3; IMSA et al. Comments at 1-2; MSUA Comments 
at 1; MSV Comments at i; NAEMT Comments at 1; NATOA et al. Comments 
at 7; NENA Comments at 2; NPSTC Comments at 1; NRPC Comments at 4; 
NTCH Comments at 1-2; PSST Comments at 4; RCA Comments at 1; RPC 6 
Comments at 3; RPC 33 Comments at 2 (supporting the partnership ``as 
long as there is regional and/or local control over the applied use 
of this network''); Seybold Comments at 2; SIEC Comments at 1; 
Sprint-Nextel Comments at 9; TeleCommUnity Comments at 3, 5-6; 
Televate Comments at 3; TE M/A-COM Comments at 3; U.S. Cellular 
Comments at 1; Coverage Co. Comments at 1; VFCA Comments at 3; WFCA 
Comments at 1; AASHTO Reply Comments at 1; Cyren Call Reply Comments 
at 2; IACPNSA Reply Comments at 1; ICMA Reply Comments at 2; ITS 
America Reply Comments at 2; NPSTC Reply Comments at 3; Sprint 
Nextel Reply Comments at 2-3; Space Data Reply Comments at 2; 
SouthernLINC Reply Comments at ii.
    \80\ See AASHTO Comments at 7 (asserting that, ``[w]ithout a 
single network using a common technology as its basis, the 
Commission nation's emergency response and disaster relief workers 
will continue to be hampered in their ability to respond to any call 
for assistance in the wake of a natural or man caused situation.''); 
Cellular South Comments at 1; Ericsson Comments at 3; Peha Comments 
at 2; MSUA Comments at 1; NAEMAT Comments at 2; NPSTC Comments at 6; 
PSST Comments at 4; Qualcomm Comments at 7; SIEC Comments at 1.
    \81\ See, e.g., APCO Comments at 3; Ericsson Comments at 3; IMSA 
et al. Comments at i; RCA Comments at 1. See also AT&T Comments at 
2-3; Cellular South Comments at 1, 2; IMSA et al. Reply Comments at 
3; ITS America Reply Comments at 2; NENA Comments at 2.
    \82\ See AT&T Comments at 3; NATOA et al. Comments at iii; NAEMT 
Comments at 2; PSST Comments at 4-5; See also Cellular South 
Comments at 2; Ericsson Comments at 3-4; NPSTC Comments at 7 
(describing public/private partnership as ``the only reasoned course 
to meet this challenge given the lack of any funding to deploy the 
system.''); Sprint Nextel Comments at 10 (``public/private 
partnerships have been shown to be an effective means of galvanizing 
resources in the telecommunications and technology industries to 
meet critical needs in the public sector.'').
    \83\ See, e.g., NATOA et al. Comments at iii. See also id. at 7 
(``Congress has made it clear that government funding * * * is not 
possible''); APCO Reply Comments at 3 (``the Commission cannot make 
policy decisions based on a `hope and prayer' that Congress will 
act.'').
---------------------------------------------------------------------------

    47. Commenters point to other benefits of the public/private 
partnership as well. Several argue, for example, that by sharing 
spectrum between commercial and public safety users, the public/private 
partnership will promote spectrum efficiency.\84\ AT&T, discussing the 
benefits of public/private partnerships more generally, also asserts 
that the commercial partner in a public/private partnership can 
``leverage existing networks, technical assets, and spectrum resources 
to develop the interoperable network as quickly and efficiently as 
possible'' and that it might rely on ``previous experiences 
constructing wireless networks to ensure the construction of a reliable 
and effective public/private wireless broadband network.'' \85\
---------------------------------------------------------------------------

    \84\ See AT&T Comments at 4; Cellular South Comments at 2; NATOA 
et al. Comments at 8; see also PSST Comments at 5-6.
    \85\ AT&T Comments at 2-3. See also IMSA et al. Reply Comments 
at 6; PSST Comments at 6.
---------------------------------------------------------------------------

    48. A number of commenters either oppose or express strong concerns 
regarding retaining the public/private partnership condition on the D 
Block.\86\ They argue, among other things, that because of the high 
incremental cost of constructing a network to public safety 
specifications and build-out requirements, the network cannot be 
commercially viable without government funding.\87\ They further argue 
that this problem is exacerbated by aspects of the 700 MHz Public/
Private Partnership that make it difficult or impossible to determine 
revenue potential, and by the difficulty raising capital in the current 
economic environment. Several commenters argue that while the 
Commission might reduce the public safety-related requirements 
sufficient to permit commercial viability, this would defeat the public 
safety purpose of the network.\88\
---------------------------------------------------------------------------

    \86\ IAFF Comments at 1; King County Comments at 1-3; MetroPCS 
Comments at 5-6; Motorola Comments at 5-7; NYPD Comments at 3-5; RTG 
Comments at ii; San Francisco Comments at 2-4; Verizon Wireless 
Comments at 7-11; Rivada Reply Comments at 1-2, 4-5.
    \87\ See, e.g. Motorola Comments at i, 2, 7, 9 (significant 
buildout and operating costs ``will dramatically affect the ability 
of the D-Block licensee(s) to compete effectively with other 
commercial services on price'' and that ``further direction, 
legislative action, and funding are needed from Congress to ensure 
that first responders have the necessary resources to deploy a 
broadband video and data network''); King County Comments at 2; NYPD 
Comments at 3 (``there is simply no business case for a commercial 
wireless network operator to build a nationwide network that will 
meet public safety coverage and survivability standards.''); RPC 9 
Comments at 3; San Francisco Comments at 7; Verizon Wireless 
Comments at 7-8. See also Motorola Reply Comments at 2.
    \88\ Motorola Comments at 5; NYPD Reply Comments at 4-5; Verizon 
Wireless Comments at 8; Verizon Wireless Reply Comments at 1. See 
also MetroPCS Comments at 14. Cf. ITS America Reply Comments at 3 
(``additional funding from Congress to cover the incremental costs 
of a Public Safety network compared to that of a commercial network 
is likely to be required.'').
---------------------------------------------------------------------------

    49. Some commenters also argue that the Commission needs to address 
the unmet commercial needs of small and regional carriers for 
unencumbered spectrum suitable for advanced broadband services and that 
this demand can best be met by the D Block.\89\ Based on this concern, 
for example, MetroPCS recommends that the Commission auction the D 
Block unencumbered and ``seek congressional action to have the proceeds 
of such auction be used by the public safety community to build the 
network it needs.'' \90\
---------------------------------------------------------------------------

    \89\ See MetroPCS Comments at 9-11; RTG Comments at 4-5.
    \90\ MetroPCS Comments at 6, 9-11. See also RTG Comments at 4; 
CTIA Reply Comments at 2-3, 5. MetroPCS also argues that certain 
aspects of the 700 MHz Public/Private Partnership, including the 
requirement of commercial access to public safety spectrum on a 
secondary basis and of public safety access to commercial spectrum 
in emergencies, may violate Section 337 of the Communications Act. 
See MetroPCS Comments at 14-16. The Commission addresses these legal 
issues in the Commission discussion of spectrum use in the shared 
wireless broadband network.
---------------------------------------------------------------------------

    50. Some public safety entities oppose the public/private 
partnership out of concern that the commercial incentives of the D 
Block licensee are inconsistent with its obligation to meet public 
safety needs. These commenters assert that, due in part to a lack of 
confidence in the network, and in some cases to the availability of 
local alternatives, local public safety entities will not use the 
network, and will therefore receive no benefit from the 700 MHz public 
safety broadband spectrum.\91\ These commenters propose that, instead 
of using the public safety broadband spectrum in the 700 MHz Public/
Private Partnership, the Commission should provide public safety 
entities direct access to the spectrum in order to build out their own 
separate networks.\92\ AT&T, Verizon Wireless, and others support a 
public-private partnership but argue that a Request for Proposal 
process is a better alternative for accomplishing this goal than a 
reauction of the spectrum.\93\ Specifically, AT&T and Verizon propose a 
process in which the Commission would reallocate the D Block spectrum 
to the PSBL, who in turn would use the RFP process to select a lessee 
or lessees to build a shared network.\94\ Verizon Wireless also 
proposes an alternative RFP process in which the Commission would 
``auction the spectrum on an unencumbered basis and give the proceeds 
to public safety to support the deployment of interoperable 
communications solutions.'' \95\ The public safety licensee would, in 
turn, use an RFP process to establish a partnership with a commercial 
provider (presumably through some leasing arrangement).\96\
---------------------------------------------------------------------------

    \91\ NYPD Comments at 3 (asserting that public safety agencies 
in New York City have ``little incentive * * * to pay subscriber 
fees to access a nationwide public/private broadband network'' 
because a municipal public safety broadband data network will be 
fully deployed by the end of 2008); San Francisco Comments at 2-3; 
see also id. at 2 (describing results of a partnership requirement 
as ``an uncertain auction, a vague network sharing agreement, an 
untested network, and the prospect that many local public safety 
agencies could choose not to participate''); RTG Comments at 2.
    \92\ San Francisco Comments at 2; King County Comments at 2-3; 
NYPD Comments at 5-8. See also NYPD Comments at 7, 10; Philadelphia 
Comments, generally (arguing that local governments should have a 
right to ``opt-out'' of the nationwide network and construct an 
independent network in the public safety broadband spectrum''); TDC 
Comments at 3; Rivada Reply Comments at 1,2, 4.
    \93\ See, e.g., AT&T Comments at 2.
    \94\ See AT&T Comments at 6; Verizon Wireless Comments at 21, 
n.33.
    \95\ Verizon Wireless Comments at 21, n.33.
    \96\ Id. (indicating that the public safety licensee could 
either use its existing allocation for the partnership, or the 
Commission could reallocate the D Block to public safety and license 
it to public safety licensee).
---------------------------------------------------------------------------

    51. Discussion. The Commission tentatively concludes that it should 
continue to require, as a license condition, that the D Block licensee 
enter into a public/private partnership with the Public Safety 
Broadband Licensee for the purpose of constructing a shared wireless 
broadband network that will provide interoperable broadband service to 
public safety entities. Throughout this proceeding, the Commission has 
sought to promote nationwide access by public safety agencies to 
interoperable broadband wireless services operating over a modern, IP-
based system architecture. The Commission has further sought to achieve 
certain ancillary goals, such as ensuring the robustness and 
survivability of the public safety broadband system as well as 
promoting cost and spectrum efficiency.\97\ Achieving these public 
safety goals remains very much in the public interest. The Commission 
has noted

[[Page 57760]]

previously the many potential benefits of broadband service to public 
safety,\98\ and the record in this proceeding confirms the growing 
importance of broadband communications to public safety efforts.\99\ 
The Commission finds that achieving a nationwide level of 
interoperability among and between public safety communications systems 
and devices so that public safety entities can communicate and 
coordinate their activities, particularly in response to emergencies, 
remains a critical imperative.\100\ After considering the results of 
Auction 73 and the record in this proceeding, the Commission 
tentatively conclude that a mandatory public/private partnership 
between the licensee or licensees of the D Block and the licensee of 
the public safety broadband spectrum (which the Commission will again 
refer to as the ``700 MHz Public/Private Partnership'') remains the 
best option available to us to achieve these goals.
---------------------------------------------------------------------------

    \97\ See 700 MHz Ninth Public Safety Notice, 21 FCC Rcd at 
14842-43 paras. 12-18; Second Report and Order, 22 FCC Rcd at 15431 
paras. 396-97; Second FNPRM, 23 FCC Rcd at 8051-52 para. 6.
    \98\ See 700 MHz Ninth Public Safety Notice, 21 FCC Rcd at 14842 
para. 12 (``police officers could exchange mug shots, fingerprints, 
photographic identification, and enforcement records; firefighters 
could have access to floor and building plans and real-time medical 
information; forensic experts could provide high resolution 
photographs of crime scenes and real-time video monitoring 
transmitted to incident command centers.'').
    \99\ See, e.g., NAEMT Comments at 2 (``EMS communication's 
future is broadband. To save time in life-threatening situations, it 
will become essential to use technologies now in development to send 
data in addition to voice communications.''); see also Ericsson 
Comments at 3; NPSTC Comments at 6; PSST Comments at 4; Testimony of 
Robert M. Gurss, Director, Legal & Government Affairs, Association 
Of Public-Safety Communications Officials-International, Inc., July 
30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/gurss.pdf (``Broadband video, high speed images, Internet access, 
and data of an endless variety would greatly enhance the ability of 
police, fire, EMS and other personnel to protect the public and 
respond to emergencies.'').
    \100\ See, e.g., Cellular South Comments at 1; PSST Comments at 
4; SIEC Comments at 1. See also AASHTO Comments at 7 (``Without a 
single network using a common technology as its basis, the 
Commission nation's emergency response and disaster relief workers 
will continue to be hampered in their ability to respond to any call 
for assistance in the wake of a natural or man caused situation.'').
---------------------------------------------------------------------------

    52. The Commission continues to find that, as a regulatory approach 
for promoting the development of a nationwide, interoperable broadband 
network for public safety, the basic construct of the 700 MHz Public/
Private Partnership model has a number of benefits. As the Commission 
stated in the Second Report and Order, the use of a shared 
infrastructure for both commercial and public safety services will 
enable a significant cost savings in the construction of the 
network.\101\ Further, making the construction and operation of this 
network a license condition will help to promote development of public 
safety network with access on a nationwide basis, lead to economies of 
scale in network infrastructure and equipment, and provide a regulatory 
framework for ensuring construction on a timely basis. In addition, by 
providing the commercial partner with secondary preemptible access to 
the public safety spectrum and providing public safety limited priority 
access to the commercial spectrum in times of emergency, the 700 MHz 
Public/Private Partnership furthers the important public interest goal 
of maximizing efficient and intensive spectrum use,\102\ without 
compromising safety or commercial feasibility, resulting in a total net 
benefit to public safety and commercial entities. This approach may 
also serve important commercial interests, such as promoting the 
availability of broadband services to remote areas.
---------------------------------------------------------------------------

    \101\ See, e.g., Second Report and Order, 22 FCC Rcd at para. 
396.
    \102\ See, e.g., 47 U.S.C. 151, 309(j)(3)(D).
---------------------------------------------------------------------------

    53. Most importantly, the Commission finds that the 700 MHz Public/
Private Partnership remains the only means, in the absence of 
legislative appropriations, of obtaining funding for the construction 
of a network or networks to provide public safety with nationwide, 
interoperable broadband service. The record in this proceeding confirms 
the limited availability of public funding for the construction of a 
public safety broadband network, and the importance of the 700 MHz 
Public/Private Partnership as a means to promote commercial investment 
for that purpose.\103\ The Commission notes that several commenters 
have argued that the public safety community's need for such funding is 
best addressed by additional government appropriations instead of 
through commercial investment.\104\ While the Commission agrees that 
government funding would be a solution, the Commission is not aware of 
any current appropriations for such networks, and certainly none 
sufficient to provide access on the scale addressed by the 700 MHz 
Public/Private Partnership proposal. Similarly, Congress has not 
authorized the Commission to use 700 MHz auction funds for network 
construction. Therefore, so long as there is a reasonable likelihood of 
success with the 700 MHz Public/Private Partnership approach, the 
Commission declines to abandon this course in favor of a speculative 
approach that relies on government funding that may not materialize.
---------------------------------------------------------------------------

    \103\ See NAEMT Comments at 2 (``No other proposal for a 
national public safety broadband system has suggested how to fund it 
other than the FCC's public/private partnership concept''); see also 
ACT Comments at 1; AT&T Comments at 3; NATOA Comments at 21; PSST 
Comments at 4-5; Sprint Nextel Comments at 10 (``public/private 
partnerships have been shown to be an effective means of galvanizing 
resources in the telecommunications and technology industries to 
meet critical needs in the public sector.'').
    \104\ See, e.g., MetroPCS Comments at 6; Motorola Comments at 5-
6; RTG Comments at 3, n.3. See also Verizon Wireless Comments at 30 
n.52. Cf. Florida Region 9 Comments at 3 (``Without Federal funding 
the Commission believes any public/private partnership will fail the 
requirements of the PSST.'').
---------------------------------------------------------------------------

    54. The Commission is also not persuaded to rely solely on local 
and state entities to build out their own networks in the 700 MHz 
public safety broadband spectrum as a substitute for construction by 
mandatory public/private partnerships. Although a few jurisdictions 
such as New York City have determined to use commercial service 
providers to satisfy their wireless broadband needs, none of these 
jurisdictions have stated that these networks provide anything more 
than commercial-grade service, or that they were able to achieve the 
economies of scale and nationwide interoperability inherent in the 700 
MHz Public/Private Partnership approach. As more and more public safety 
agencies take advantage of the benefits of broadband applications, the 
Commission is concerned that in the end the Commission will again end 
up with balkanized networks incapable of even minimum 
interoperability.\105\ Again, when faced with future calamities, the 
Nation will continue to suffer from the same dangerous shortcomings 
that were encountered following natural and man-made disasters of the 
past because there will remain no dedicated public safety spectrum with 
a nationwide level of interoperability. The Commission also remains 
concerned that, due to the funding issues discussed above, such local 
or regional efforts will occur only in a few jurisdictions, leaving 
most of the country's public safety community without wireless 
broadband for the foreseeable future. In contrast, the 700 MHz Public/
Private Partnership rules

[[Page 57761]]

proposed herein will provide a plan to provide broadband coverage for 
public safety entities on a significantly more expanded basis than 
individual agreements with commercial service providers or buildout by 
individual jurisdictions in the 700 MHz broadband spectrum could 
achieve.
---------------------------------------------------------------------------

    \105\ The Commission notes that existing rules permit local 
jurisdictions to construct independent networks operating over the 
700 MHz public safety broadband spectrum, with certain limitations 
and conditions, in the event that the shared wireless broadband 
network is not scheduled to cover the relevant jurisdiction by the 
end of the D Block license term. See 47 CFR 27.1330(b)(5). In 
addition, these rules provide local jurisdictions with a method, 
again with certain conditions, to construct a network prior to the 
anticipated construction date of the shared wireless broadband 
network in that jurisdiction, subject to later integration. See id. 
As discussed elsewhere, the Commission tentatively concludes that 
the Commission should retain these rules.
---------------------------------------------------------------------------

    55. As noted above, some commenters have argued that, whatever 
benefits the 700 MHz Public/Private Partnership might possess, the 
model cannot be made commercially viable except by reductions in the 
network design and coverage requirements that would sacrifice its 
suitability as a public safety network. The Commission recognizes that, 
for the 700 MHz Public/Private Partnership to achieve the objectives of 
this proceeding, it must meet the essential requirements of public 
safety communications systems and also provide a level of commercial 
viability sufficient to encourage investor participation and to permit 
long-term commercial success in a competitive environment. The 
Commission also acknowledges that there is some tension between these 
goals. To the extent that the network is required to meet higher 
standards for reliability, hardening, security, and other features than 
are being implemented in competing commercial broadband networks, and 
to build out in commercially unprofitable areas, such costs will pose 
an additional challenge to the commercial viability of the network. The 
Commission also notes that the financial challenges posed by the 
construction and operation of the shared wireless broadband network may 
be exacerbated by the prevailing condition of the nation's economy 
overall and its impact on the availability of capital.\106\
---------------------------------------------------------------------------

    \106\ See Council Tree Comments at ii.
---------------------------------------------------------------------------

    56. Based on the record before us, however, the Commission 
tentatively concludes that it is possible to establish requirements 
that are commercially viable while still meeting the essential 
requirements of public safety first responders. First, the Commission 
anticipates that a part, although likely not all, of the incremental 
cost of meeting public safety specifications and construction will be 
accounted for in the discounted price of the auctioned D Block 
spectrum.\107\ In addition, the Commission finds that certain 
reductions or modifications of the requirements in the existing rules 
are consistent with the Commission's fundamental public safety 
objectives, and will significantly improve the commercial viability of 
the 700 MHz Public/Private Partnership, thus enhancing the likelihood 
that public safety users will in fact receive the benefits the 
Commission seeks to achieve in this proceeding. The Commission also 
expects that, to some extent, additional public safety-related 
requirements should provide some degree of market advantage, 
particularly to public safety users and others, such as critical 
infrastructure users.\108\ The Commission notes that despite the 
Commission tentative conclusion that entities such as critical 
infrastructure users are not eligible for service as public safety 
users, they may still receive service as customers of the D Block 
licensee(s).\109\
---------------------------------------------------------------------------

    \107\ See APCO Comments at 37. But see Verizon Wireless Comments 
at 8 (``the D Block and public safety broadband spectrum are not 
worth nearly enough to offset the massive cost of building a 
national broadband network to the mission-critical specifications of 
public safety * * * even if the D Block were given away for free,'' 
and estimating the incremental costs of hardening and build-out 
beyond commercial footprints at over $20 billion). See also APCO 
Comments at 37.
    \108\ See, e.g. SouthernLINC Reply Comments at ii, 4 (noting 
that, ``given its hardened network and best of class design, public 
safety agencies throughout SouthernLINC's territory have relied on 
SouthernLINC for day-to-day and emergency operations since the 
network became operational in 1995,'' and that nearly one-quarter of 
its customer base is comprised of ``federal, state, and local 
agencies''). But see Motorola Comments at 4-5 (stating that the 
number of first responders is ``insufficient * * * to amortize the 
high costs associated with hardening the network and constructing 
infrastructure covering over 99.3 percent of the U.S. 
population.'').
    \109\ The Commission note that the record provides some evidence 
indicating that networks have already been constructed that are both 
suitable for public safety use and commercially viable. 
SouthernLINC, for example, notes that since 1995, it has operated a 
commercial network ``specifically designed to withstand the 
stressful weather conditions caused by hurricanes in the 
Southeast,'' with features ``far more robust than a traditionally-
designed, commercial-grade network designed with some additional 
redundancy.'' SouthernLINC Reply Comments at 3-4; but see id. at 4 
(``[a] true public-private partnership can work, but it is not easy, 
and the Commission should recognize that this proceeding may not be 
the right vehicle to make it happen''). In addition, PGCC, after 
reviewing the results of a project to construct a Wi-Fi network over 
a 30-mile corridor in Arizona for public safety and other users, 
concluded that the ``experience supports the FCC position proposing 
to use D-Block and the adjacent Public Safety spectrum for 
nationwide broadband connectivity with commercial ownership subject 
to Public Safety constraints.'' PGCC Comments at 11.
---------------------------------------------------------------------------

    57. The Commission does find that many of the specific problems 
noted by commenters regarding the existing rules governing 700 MHz 
Public/Private Partnership present legitimate concerns. The Commission 
tentatively concludes that these issues can be successfully addressed, 
however, through appropriate rule modifications. On the commercial 
side, the Commission agrees, for example, that for potential bidders to 
make an informed determination regarding the viability of the 
partnership, they must have reasonable certainty and clarity regarding 
their obligations under the rules, and thus, the likely costs of 
constructing and operating the shared wireless broadband network. They 
also need to have some ability to predict the revenue potential of the 
shared wireless broadband network. While the Commission may not have 
provided sufficient certainty on either of these factors under the 
existing rules, the Commission is persuaded that it is possible to 
provide such certainty. Conversely, regarding certain public safety 
objections that the commercial D Block licensee will not adequately 
serve their interests, the Commission finds that appropriate oversight 
measures, including reporting requirements, can address these concerns. 
Accordingly, in the sections below, the Commission addresses these 
issues in greater detail and reaches tentative conclusions regarding 
how best to implement the 700 MHz Public/Private Partnership to respond 
to these concerns.
    58. Though the Commission tentatively concludes that it should 
retain the public/private partnership and assign commercial licenses 
for the D Block by competitive bidding, the Commission also seeks 
comment on whether assigning licenses through a Request for Proposal 
(RFP) process would increase the likelihood of successfully deploying a 
nationwide interoperable broadband network useable by public safety. 
The Commission seeks comments on both a detailed proposal for how the 
RFP process would be conducted, as well as why it would be superior to 
an auction of licenses consistent with the rules proposed herein. The 
Commission seeks comment as well on whether any RFP process would be 
consistent with the Commission's obligations under Sections 309(j) and 
337(a) with respect to the allocation of spectrum and the method of 
assigning D Block licenses.
B. Service Rules for the D Block Licensee and the 700 MHz Public/
Private Partnership
1. Geographic Area for D Block License
    59. Background. In the Second Report and Order, the Commission 
determined that the D Block license would be auctioned as a single, 
nationwide license.\110\ In the Second FNPRM, the Commission revisited 
this decision, in part, because no bidder matched the reserve price the 
Commission set for the

[[Page 57762]]

D Block license.\111\ In addition to asking if the Commission should 
retain the single, nationwide license approach, the Commission proposed 
authorizing the D Block among multiple licensees and asked several 
questions related to such a proposal. The Commission asked what size 
the license areas should be if the D Block were split into regional 
licenses? For instance, should the blocks be Regional Economic Area 
Groups (REAGs), Economic Areas (EAs), or Cellular Market Areas (CMAs)? 
\112\ The Commission also sought comment on whether the D Block should 
be split into one license (or several licenses) covering high-
population density areas and a second license (or set of licenses) 
covering low-population density areas.\113\ The Commission further 
sought comment on whether the Commission should modify any of the 
policies or rules previously adopted or proposed with respect to a D 
Block 700 MHz Public/Private Partnership to ensure that the primary 
goal of a national, interoperable, communications network for public 
safety agencies is not jeopardized.\114\
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    \110\ Second Report and Order, 22 FCC Rcd at 15420 para. 369.
    \111\ Second FNPRM, 23 FCC Rcd 8047, 8048-49 para. 1.
    \112\ Second FNPRM, 23 FCC Rcd at 8111-12 para. 183.
    \113\ Second FNPRM, 23 FCC Rcd at 8112 para. 185.
    \114\ Second FNPRM, 23 FCC Rcd at 8112 para. 184.
---------------------------------------------------------------------------

    60. Commenters offer divergent views on whether the Commission 
should maintain the single, nationwide, license approach or allocate 
the D Block through multiple, smaller, regional licenses. Sprint 
Nextel, Rural Cellular Association (RCA), Ericsson, Inc. (Ericsson), 
the PSST, the Association of Public Safety Communications Officials 
(APCO), National Public Safety Telecommunications Council (NPSTC), and 
most public safety organizations prefer the single, nationwide license 
approach because, they contend, it should present the most cost 
effective approach to designing a broadband network that achieves 
interoperability and connectivity across geographic regions on a 
nationwide basis.\115\ Some commenters object to regional licensing on 
grounds that some or even many regions might go unsold at auction, 
resulting in checkerboard coverage.\116\ NPSTC argues that integrating 
regional networks would present technical and logistical challenges and 
could take years to implement.\117\
---------------------------------------------------------------------------

    \115\ APCO Comments at 40; see also, International Municipal 
Signal Association, International Association of Fire Chiefs, Inc., 
Congressional Fire Services Institute, and Forestry Conservation 
Communications Association (IMSA et al.) Comments at 12; National 
Association of Telecommunications Officers and Advisors, National 
Association of Counties, National League of Cities, and U.S. 
Conference of Majors (NATOA, et al.,) Comments at 17; National 
Public Safety Telecommunications Council (NPSTC) Reply Comments at 
9; Region 33, 700 MHz Planning Committee (Region 33) Comments at 19-
21; Virginia Fire Chiefs Association (VFCA) Comments at 3; Rural 
Cellular Association (RCA) Comments at 2; Sprint Nextel Comments at 
11; Public Safety Spectrum Trust Corporation (PSST) Reply Comments 
at 12; Testimony of Chief Harlin R. McEwen, Chairman, PSST FCC En 
Banc Hearing, New York, July 30, 2008 at 2; Ericsson Comments at 34; 
Council Tree Reply Comments at 13; Intelligent Transportation 
Society of America (ITS America) Reply Comments at 3.
    \116\ See e.g. APCO Comments at 40.
    \117\ NPSTC Reply Comments at 10.
---------------------------------------------------------------------------

    61. A number of commenters, however, favor a regional approach. 
AT&T, Verizon Wireless, and smaller regional service providers, such as 
MetroPCS, United States Cellular Corporation US Cellular and Rural 
Telecommunications Group (RTG), prefer the multiple, regional license 
approach for the D Block because, among other reasons, regional 
licenses would permit participation by smaller providers, who may be 
unable to compete on a nationwide scale, but may have the resources to 
build regional networks that could be leveraged to rapidly deploy a 
nationwide system.\118\ US Cellular recommends that the Commission 
adopt geographic areas that align with the ``55 National Public Safety 
Planning Advisory Committee (NPSPAC) regions.'' \119\ US Cellular 
argues that these regions are of similar size to MEAs and ``with over 
two decades of experience in meeting the wireless needs of state and 
local public safety authorities through [NPSPAC] regional committees 
operating pursuant to a national plan and FCC order, there are also 
distinct advantages in aligning D Block licenses with the NPSPAC.'' 
\120\ US Cellular and RTG also contend that smaller license areas could 
lead to more rapid deployment of public safety communications networks 
in rural areas.\121\
---------------------------------------------------------------------------

    \118\ AT&T Comments at 24-25; Verizon Wireless Comments at 29-
31; Verizon Wireless Reply Comments at 11; Metro PCS Comments at 20; 
US Cellular Comments at i, 15-16; RTG Comments at ii, 1; NTCH 
Comments at 9-10; Testimony of William J. Andrle, Jr. Northrop 
Grumman Information Technology FCC En Banc Hearing, New York, July 
30, 2008 at 2.
    \119\ US Cellular Comments at 2. US Cellular later made an ex 
parte presentation in which it argued that the Commission should 
license the D Block through geographic areas that followed state 
geographical boundaries. See Letter from Warren G. Lavey, on behalf 
of US Cellular, to Marlene H. Dortch, Secretary, WT Docket No. 06-
150, filed Aug. 29, 2008, Attachment at 3.
    \120\ US Cellular Comments at i. See also AT&T Reply Comments at 
9; City of Philadelphia Reply Comments at 6-7 & nn. 13, 16.
    \121\ RTG Comments at ii, 4; US Cellular Comments at 2.
---------------------------------------------------------------------------

    62. TeleCommUnity, a national association of local governments, and 
Charlotte, North Carolina, Houston, Texas, and Montgomery County, 
Maryland (TeleCommUnity), contends that there are strong arguments for 
allocating regional licenses, for the D Block, as well as the single, 
nationwide license approach.\122\ The New York City Police Department 
(NYPD) and the City of Philadelphia (Philadelphia) contend that the 
Commission should adopt an approach that permits local public safety 
agencies to develop their networks that would then interconnect with 
other local public safety agencies.\123\ These entities argue that a 
single, nationwide license could impede the development of their local 
public safety networks.\124\ Coverage Co. and Space Data Corp. ask the 
Commission to adopt an approach that assigns one license for urban or 
more populated areas and another license for rural or less populated 
areas.\125\ Other entities, such as Google and Qualcomm, do not appear 
to favor a single, nationwide license or a multiple regional license 
approach. They are more concerned that the Commission establishes a 
public safety broadband network that is interoperable as soon as 
practicable.\126\
---------------------------------------------------------------------------

    \122\ TeleCommUnity Comments at 13-14.
    \123\ NYPD Reply Comments at 4-5; Philadelphia Reply Comments at 
8.
    \124\ NYPD Reply Comments at 7-14; Philadelphia Reply Comments 
at 5-8.
    \125\ Coverage Co. Comments at 2; Space Data Corp. Comments at 
2-3, 12.
    \126\ Google Comments at 3; Qualcomm Comments at 8.
---------------------------------------------------------------------------

    63. Discussion. The Commission tentatively concludes that the 
Commission should offer the D Block at auction as both a single, 
nationwide license and as regional licenses. The Commission proposes 
that the regional geographic areas would be comprised of the 55 700 MHz 
RPC regions,\127\ and

[[Page 57763]]

three additional regions, and to refer to these 58 regions as PSRs for 
D Block licensing purposes.\128\ The three additional regions will 
cover (1) the Gulf of Mexico; (2) the Territory of Guam (Guam) and the 
Commonwealth of Northern Mariana Islands (Northern Mariana Islands); 
and (3) the Territory of American Samoa (American Samoa), and will be 
identical to the current Economic Area (EA) licensing areas for those 
same regions.
---------------------------------------------------------------------------

    \127\ Although some commenters propose the use of NPSPAC regions 
for licensing, the Commission tentatively finds it more appropriate 
to use the Regional Planning Committee (RPC) regions, which are 
largely but not entirely identical. The Commission notes that the 
NPSPAC regions were established in connection with the 800 MHz 
public safety spectrum. The term ``NPSPAC'' is an acronym for the 
National Public Safety Planning Advisory Committee, which was 
established by the Commission in 1986 to advise the Commission on 
rules for the 821-824 MHz/866-869 MHz band. See Amendment of Parts 2 
and 22 of the Commission's Rules Relative to Cellular Communications 
Systems Amendment of Parts 2, 15, and 90 of the Commission's Rules 
and Regulations to Allocate Frequencies in the 900 MHz Reserve Band 
for Private Land Mobile Use Amendment of Parts 2, 22 and 25 of the 
Commission's Rules to Allocate Spectrum for, and to Establish Other 
Rules and Policies Pertaining to the Use of Radio Frequencies in a 
Land Mobile Satellite Service for the Provision of Various Common 
Carrier Services, GEN Docket No. 84-1231 RM-4812, GEN Docket No. 84-
1233 RM-4829, GEN Docket No. 84-1234, Report and Order, 2 FCC Rcd at 
1825 para. 46 (1986). The 821-824 MHz/866-869 MHz band was 
eventually licensed on a regional basis with the resulting regions 
designated as NPSPAC regions. However, the initial rules governing 
the 700 MHz public safety spectrum, which included the regional 
approach governing a portion of that spectrum, were established in a 
separate proceeding. See Development of Operational, Technical and 
Spectrum Requirements For Meeting Federal, State and Local Public 
Safety Agency Communication Requirements Through the Year 2010, WT 
Docket No. 96-86, First Report and Order and Third Notice of 
Proposed Rulemaking, 14 FCC Rcd 152 (1998) (700 MHz Public Safety 
First Report and Order and Third Notice). The Commission tentatively 
finds that the 700 MHz regions are the more appropriate regional 
basis to use in the instant proceeding. As noted above, the 700 MHz 
regions are almost, but not quite, identical to the 800 MHz NPSPAC 
regions. Although the NPSPAC regional boundaries were used as the 
initial basis for the 700 MHz public safety regions, see id. at 263, 
Appendix C (List of Regions), two of the regions have since been 
modified. See Public Notice, ``Public Safety 700 MHz Band--General 
Use Channels Approval of Changes to Regional Planning Boundaries of 
Michigan and Connecticut,'' 16 FCC Rcd 16359 (2001). The Commission 
proposal would thus license the D Block in accordance with these 
regional boundaries as modified for Connecticut and Michigan. As for 
terminology, because the NPSPAC was not involved in the 700 MHz 
proceeding, it would be a misnomer to identify these 700 MHz 
geographic areas as NPSPAC regions. It is more accurate to refer to 
the regions as RPC regions because the spectrum allocation in these 
areas is governed by the RPCs. See 47 CFR 90.531.
    \128\ See Appendix A.
---------------------------------------------------------------------------

    64. As the Commission explains further below, the Commission finds 
that both nationwide and PSR area licenses have advantages that could 
help achieve the public interest goal of establishing a commercially 
viable interoperable public safety broadband network on a nationwide 
basis. Further, while offering the D Block on a regional basis raises 
the risk of unsold areas, offering only a single, nationwide license 
may increase the risk that there are no bids on the D Block spectrum at 
all. Accordingly, to provide the greatest likelihood of success in 
offering new licenses for the D Block spectrum with a public/private 
partnership condition, the Commission proposes to permit entities to 
bid on both nationwide and regional licensing options and to allow 
auction results to determine on which geographic area basis the D Block 
will ultimately be licensed pursuant to auction rules and procedures 
that the Commission explains elsewhere in this Third FNPRM.
    65. Nationwide Option. The Commission tentatively concludes that 
one of the D Block geographic license area options that parties should 
be able to bid upon is a single, nationwide license. The Commission 
proposes to offer a nationwide D Block license because the record in 
this proceeding reaffirms that the Commission can achieve its goals for 
the public safety broadband network through this type of license.\129\ 
In particular, one of the Commission's primary goals for the 
authorization of the D Block is to ``address a vitally important 
problem: promoting interoperability, on a nationwide basis, for public 
safety communications.'' \130\ The record in response to the Second 
FNPRM supports the Commission's previous determination that 
interoperability is a critical need for the public safety broadband 
network and that assigning the D Block to a single, nationwide licensee 
may help to facilitate achieving nationwide interoperability both 
within and between jurisdictions. The Commission notes that the 
majority of public safety agencies assert that a single, nationwide 
license is the best way to achieve an interoperable network.\131\ 
Although the Commission tentatively finds that it is possible to 
achieve interoperability between regional networks, a nationwide 
license would likely simplify the task of ensuring interoperability and 
avoid problems in its implementation. For example, it would eliminate 
the need for technology coordination, roaming arrangements, and 
interconnection arrangements between different regional networks.
---------------------------------------------------------------------------

    \129\ Second Report and Order, 22 FCC Rcd at 15420 para. 369. 
Thus, the license will cover the 50 states, the Gulf of Mexico, and 
the territories.
    \130\ Second FNPRM, 23 FCC Rcd at 8051 para. 5; see also Second 
Report and Order, 22 FCC Rcd at 15419 para. 365. In addition, in the 
700 MHz Public Safety Eighth Notice adopted in March 2006, the 
Commission emphasized its commitment ``to ensuring that emergency 
first responders have access to reliable and interoperable 
communications.'' 700 MHz Public Safety Eighth Notice, 21 FCC Rcd at 
3682 para. 31; see also, Second FNPRM, 23 FCC Rcd at 8051 para. 4; 
Second Report and Order, 22 FCC Rcd at 15420 para. 369; 700 MHz 
FNPRM, 22 FCC Rcd at 8156 para. 253.
    \131\ See, e.g., APCO Comments at 40; IMSA et al. Comments at 
12; NATOA, et al. Comments at 10.
---------------------------------------------------------------------------

    66. Licensing the D Block on a nationwide basis could also help to 
achieve the other goals that the Commission has for the public safety 
broadband network, i.e., that it be cost effective, spectrally 
efficient, flexible and employ an advanced IP-based network.\132\ A 
single, nationwide license may provide opportunities for cost savings 
through elimination of redundant equipment (e.g., mobile base station 
deployments in the event of natural disasters), processes (billing, 
etc.) or staff (e.g., public safety support), and greater economies of 
scale for network equipment or handsets.\133\ These cost savings might 
enhance the ability of the D Block licensee to rapidly build the public 
safety broadband network in rural, expensive-to-serve, less populated 
areas. The Commission therefore tentatively concludes that the 
economies of scale that a commercial entity could achieve through a 
single, nationwide license could promote the rapid deployment of an 
advanced nationwide public safety broadband network.
---------------------------------------------------------------------------

    \132\ Second Report and Order, 22 FCC Rcd at 15420 para. 369.
    \133\ See Second Report and Order, 22 FCC Rcd at 15298, 15324 
paras. 20, 82 (explaining how larger geographic service areas permit 
service providers to establish economies of scale).
---------------------------------------------------------------------------

    67. In addition, a single, nationwide license could facilitate 
coordination between the D Block licensee, the Public Safety Broadband 
Licensee, and the public safety agencies that use the network. As 
discussed elsewhere in this Third FNPRM, the public/private partnership 
concept requires the D Block licensee to establish an NSA with the 
Public Safety Broadband Licensee and, thereafter, coordinate with the 
Public Safety Broadband Licensee to ensure that the network effectively 
serves the interests of the public safety community. The coordination 
scheme envisioned for the D Block could be particularly efficient if 
there were only one licensee required to coordinate and negotiate with 
the Public Safety Broadband Licensee and local public safety agencies.
    68. Some wireless service providers argue that the single, 
nationwide license will not work because, in their opinion, no single 
entity would find it commercially viable to develop a nationwide public 
safety communications network with the technical requirements and other 
rules that the Commission had imposed, in the Second Report and Order, 
on the D Block.\134\ As the Commission discusses in more detail, 
elsewhere, the Commission has made substantial changes to the technical 
specifications and performance requirements that should help make the 
single, nationwide license more commercially viable. These policies 
should ease the

[[Page 57764]]

burdens on a single, nationwide D Block licensee.
---------------------------------------------------------------------------

    \134\ AT&T Comments at 7-8; Verizon Wireless Comments at 7-8, 
24-31.
---------------------------------------------------------------------------

    69. Public Safety Region Option. The Commission tentatively 
conclude that the Commission should revise the Commission rules to also 
provide the option of regional geographic area licensing of the D Block 
on the basis of 58 PSRs, 55 regions of which would correspond to the 55 
RPC regions, and which would include three additional regions covering 
(1) the Gulf of Mexico; (2) Guam and the Northern Mariana Islands; and 
(3) American Samoa.\135\ As the Commission explains further below, PSR 
licensees could lead to a rapid deployment of the public safety 
broadband network that is tailored to respond to the public safety 
communications needs of particular regions.
---------------------------------------------------------------------------

    \135\ See Appendix A.
---------------------------------------------------------------------------

    70. The Commission's proposal to permit licensing of the D Block on 
a regional basis is based on several factors. Section 309(j) of the 
Communications Act instructs that, in designing competitive bidding 
systems, the Commission should consider the dissemination of licenses 
among a wide variety of applicants when that consideration would serve 
the public interest.\136\ Regional licensing could allow smaller 
commercial entities that do not have the resources to acquire a 
nationwide license and meet nationwide performance requirements to 
participate in bidding for D Block licenses, thereby increasing the 
chances of a successful public/private partnership for at least the 
majority of the nation. In addition, regional licensing could lead to 
enhanced build-out and faster deployment to less populated, rural 
areas. Those entities interested in a larger geographic footprint can 
bid on, and if successful, aggregate multiple PSR regional licenses. 
The record in response to the Second FNPRM demonstrates that nearly all 
nationwide carriers and several regional carriers, which filed 
comments, support licensing on a regional basis.\137\ As the Commission 
explains elsewhere, in order to ensure that authorizing the D Block 
through multiple, regional licenses will achieve nationwide 
interoperability, the Commission has proposed roaming and certain other 
interoperability requirements for D Block licenses. In order to reduce 
the possibility that regional licensing of the D Block might result in 
large areas that are unserved by the public safety broadband network, 
the Commission tentatively concludes that an auction of the D Block 
spectrum must result in winning D Block license bidders with licenses 
covering at least 50 percent of the nationwide population or the 
results of the auction will be void.\138\
---------------------------------------------------------------------------

    \136\ 47 U.S.C. 309(j)(3)(B); Service Rules for the 746-764 and 
776-794 MHz Bands, and Revisions to Part 27 of the Commission's 
Rules, First Report and Order, 15 FCC Rcd 476, 500 para. 57 (2000).
    \137\ AT&T, Inc., (AT&T) Comments at 24-25; Verizon Wireless 
Comments at 29-31; Verizon Wireless Reply Comments at 11; Metro PCS 
Comments at 20; U.S. Cellular Comments at i, 15-16; Rural 
Telecommunications Group, Inc. (RTG) Comments at ii, 1; NTCH, Inc., 
(NTCH) Comments at 9-10; Testimony of William J. Andrle, Jr. 
Northrop Grumman Information Technology FCC En Banc Hearing, New 
York, July 30, 2008 at 2. Among the carriers offering nationwide 
service plans, who filed comments in this proceeding, only Sprint 
Nextel supports nationwide licensing. See Sprint Nextel Comments at 
11.
    \138\ See Letter from Warren G. Lavey, on behalf of U.S. 
Cellular, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 06-
150, filed July 28, 2008, Attachment at 9 (suggesting that the 
Commission should set a minimum population threshold in determining 
if the auction results for the D Block should stand).
---------------------------------------------------------------------------

    71. In addition, regional D Block licensees could be particularly 
responsive to the unique needs of state, regional, and local public 
safety agencies. Regional licensees could coordinate with local public 
safety entities and ensure that public safety communications are 
tailored to meet unique local needs in particular geographic areas. PSR 
licensees may, for example, take into account regional differences in 
terrain and public safety needs in determining how to set up and 
operate the system, which could be more cost effective in certain 
respects and better suited to regional needs than a one-size fits-all 
system. PSR licenses may also be more desirable because the assignment 
of a single, nationwide, D Block license may increase risks of 
disruption for public safety entities in the event the single 
nationwide operator is commercially unsuccessful. Having regional 
licensees, with license areas mostly following state jurisdictional 
boundaries, may also address certain concerns in the record that the 
development of the nationwide public safety broadband network should 
not impede the existing networks that some local agencies have spent 
substantial resources deploying.\139\
---------------------------------------------------------------------------

    \139\ See, generally, District Comments; see also Prepared 
Testimony of John J. Farmer, Former Attorney General, New Jersey; 
Senior Counsel, 9/11 Commission, at 3, FCC En Banc Hearing (July 30, 
2008).
---------------------------------------------------------------------------

    72. Assigning the D Block through PSR licenses that are 
geographically aligned with the 55 RPC regions could further enhance 
the responsiveness of the PSR licensees to the public safety 
communications needs of their specific geographic regions and 
facilitate the development of an interoperable public safety broadband 
network. The Commission created the RPC regions for 700 MHz public 
safety general use spectrum to maximize the efficiency of public 
safety's use of this spectrum and to foster the accommodation of a wide 
variety of localized public safety communications requirements in 
different areas of the Nation. Creating regional D Block licenses whose 
boundaries correspond with those of the RPC regions should facilitate 
interaction between the PSR licensees and the existing RPCs. The 
Commission anticipates that these regional entities have considerable 
institutional knowledge about the communications needs and concerns of 
public safety entities within their jurisdictions. PSR licensees could 
coordinate with them for their respective licensing area to learn about 
any public safety communications challenges or needs that might be 
specific to the particular region. RPCs might also help the Public 
Safety Broadband Licensee and PSR licensees negotiate the build-out 
schedule, fees, and other terms of their respective NSAs that would be 
tailored for a particular PSR region. RPCs could also share with PSR 
licensees approaches towards establishing inter-regional 
interoperability that have been more successful than others.\140\
---------------------------------------------------------------------------

    \140\ See AT&T Reply Comments at 9 (arguing that, if the Public/
Private Partnership is able to take advantage of the organizational 
structure already in place among the RPCs, ``the RPCs will 
facilitate interoperability and coordination between adjacent 
regions and public safety agencies, while ensuring that local public 
safety users have a voice in the design and functionality of the 
services offered over the network.'').
---------------------------------------------------------------------------

    73. License Partitioning and Disaggregation. The Commission 
tentatively concludes that it would not serve the public interest to 
change the current rule governing D Block partitioning and 
disaggregation, and thus to continue prohibiting any partitioning and 
disaggregation of a D Block license. The Commission seeks comment on 
this conclusion.
    74. Other Geographic Area Proposals. The Commission tentatively 
concludes that it would not serve the public interest to split the D 
Block into one license for a high-population density area and a second 
license covering low-population density, rural areas, as Coverage Co. 
and Space Data request.\141\

[[Page 57765]]

Coverage Co. and Space Data's proposals do not specify the boundaries 
of the geographic areas that the two licenses would cover, which could 
present uncertainties for potential bidders and lead to disputes. In 
addition, there is a substantial question about the commercial 
viability of these two-license approaches. Coverage Co. and Space Data 
do not appear to argue, and the arguments they make do not demonstrate, 
that their two-license proposals are more commercially viable than the 
regional approach the Commission proposes. Also, the record does not 
indicate that commenters, other than Coverage Co. and Space Data, 
support these specific two-license proposals. Based on the record and 
the unique characteristics of this proceeding, such as the important 
obligations of the public/private partnership licensees, the Commission 
would need a stronger record, before deciding that it should adopt a 
geographic area licensing scheme that is significantly different from 
the schemes the Commission has employed in the past.\142\
---------------------------------------------------------------------------

    \141\ Coverage Co. Comments at 2; Space Data Comments at 2, 13-
15; Space Data Reply Comments at 2. Coverage Co. is a provider of 
software-defined radio (SDR) technology services and it claims that 
its technology would allow a commercial wireless network to operate 
on both CDMA and GSM systems. Coverage Co. Comments at 4-5. Space 
Data uses a ``balloon-based `near space' communications system'' to 
provide ``wireless services in the South Central United States.'' 
Space Data Comments at 4.
    \142\ Implementation of Section 6002(b) of the Omnibus Budget 
Reconciliation Act of 1993, Annual Report and Analysis of 
Competitive Market Conditions with Respect to Commercial Mobile 
Services, Twelfth Report, 23 F.C.C.R. 2241, 2286 para. 97 (2008) 
(Twelfth Report).
---------------------------------------------------------------------------

    75. Finally, the Commission tentatively concludes that it would not 
serve the public interest to offer license areas that are smaller than 
PSRs in the reauction of the D Block. Although the record indicates 
that some entities have an interest in the Commission assigning the D 
Block by offering 493 BTAs,\143\ 176 EAs,\144\ and 736 CMA 
licenses,\145\ smaller license areas may make it more difficult to 
achieve nationwide interoperability. Assigning hundreds of smaller 
license areas could also exacerbate coordination issues that might 
arise among the D Block licensees, the Public Safety Broadband 
Licensee, and public safety agencies that would be involved with the 
policies and operation of the network. Moreover, license areas smaller 
than the PSRs might increase the possibility that some license blocks 
will not be sold in the reauction.
---------------------------------------------------------------------------

    \143\ AT&T Comments at 24 (recommending EAs and CMAs as options 
for the geographic area license); Coleman Bazelon Comments at 24 
(CMA licenses); RTG Comments at ii, 5 (requesting CMAs); Wirefree 
Comments at 12-14 (requesting CMAs); NTCH Comments at 11 (requesting 
BTAs); see also, In the Matter of Inquiry Concerning the Deployment 
of Advanced Telecommunications Capability to All Americans in a 
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such 
Deployment Pursuant to Section 706 of the Telecommunications Act of 
1996, Fifth Report, FCC 08-88, 2008 WL 2404499 (rel. June 12, 2008), 
at para. 52 (indicating there are 493 BTAs).
    \144\ See ``Auction of 700 MHz Band Licenses Scheduled for 
January 16, 2008; Comment Sought on Competitive Bidding Procedures 
For Auction 73,'' Public Notice, FCC Rcd 15004 (WTB 2007) 
(indicating there are 176 EAs).
    \145\ See ``Auction of 700 MHz Band Licenses Scheduled for 
January 16, 2008; Comment Sought on Competitive Bidding Procedures 
For Auction 73,'' Public Notice, FCC Rcd 15004 (WTB 2007) 
(indicating there are 736 CMAs).
---------------------------------------------------------------------------

2. Requirements for the Shared Wireless Broadband Network
a. Spectrum Use Issues
(i) Combined Spectrum Use
    76. Background. In the Second Report and Order, the Commission 
determined that promoting commercial investment in the build-out of a 
shared network infrastructure for both commercial and public safety 
users through the 700 MHz Public/Private Partnership would address 
``the most significant obstacle to constructing a public safety 
network--the limited availability of public funding.'' \146\ The 
Commission concluded that providing for a shared infrastructure using 
the D Block and the public safety broadband spectrum would help achieve 
significant cost efficiencies, allow public safety agencies to take 
advantage of off-the-shelf technology, provide the public safety 
community with access to an additional 10 megahertz of broadband 
spectrum during emergencies, and provide the most practical means of 
speeding deployment of a nationwide, interoperable, broadband network 
for public safety service by providing all of these benefits on a 
nationwide basis.\147\ At the same time, the Commission pointed out 
that the 700 MHz Public/Private Partnership would provide the D Block 
licensee with rights to operate commercial services in the 10 megahertz 
of public safety broadband spectrum on a secondary, preemptible basis, 
which would both help to defray the costs of build-out and ensure that 
the spectrum is used efficiently.\148\
---------------------------------------------------------------------------

    \146\ Second Report and Order, 22 FCC Rcd at 15431 para. 396.
    \147\ Id.
    \148\ Id.
---------------------------------------------------------------------------

    77. In the Second FNPRM, the Commission sought comment on whether, 
to provide the D Block licensee with appropriate flexibility to achieve 
an efficient and effective implementation of the 700 MHz Public/Private 
Partnership obligations, the Commission should amend the rules to 
clarify that the D Block licensee may construct and operate the shared 
wireless broadband network using the entire 20 megahertz of D Block 
spectrum and public safety broadband spectrum as a combined, blended 
resource.\149\ In particular, the Commission sought comment on whether, 
in designing and operating the shared network, the 10 megahertz of D 
Block spectrum and the 10 megahertz of public safety broadband spectrum 
may be combined, in effect, into a single and integrated 20 megahertz 
pool of fungible spectrum.\150\ This pool of spectrum could then be 
assigned to users without regard to whether a public safety user is 
being assigned frequencies in the D Block or a commercial user is being 
assigned frequencies in the public safety broadband spectrum.\151\ 
These assignments would be permissible so long as the network provides 
commercial and public safety users with service that is consistent with 
the respective capacity and priority rights of the D Block license and 
Public Safety Broadband License and with the Commission rules.\152\ The 
Commission sought comment on whether permitting the combined use of 
spectrum in this fashion would provide for a more efficient and 
effective use of spectrum.\153\ The Commission also sought comment on 
whether such a combined use would be consistent with the different 
rights and obligations associated with the D Block license and the 
Public Safety Broadband License and whether it would be in the public 
interest to allow such use.\154\ The Commission asked whether 
permitting such combined use would be consistent with the requirements 
of Sections 337(a) and (f) and the Commission rules allotting specific 
frequencies for use by the Public Safety Broadband Licensee and the D 
Block licensee.\155\
---------------------------------------------------------------------------

    \149\ Second FNPRM, 23 FCC Rcd at 8077 para. 80.
    \150\ Id.
    \151\ Id.
    \152\ Id.
    \153\ Id. at 8077 para. 81.
    \154\ Id.
    \155\ Id.
---------------------------------------------------------------------------

    78. Comments. In response to Second FNPRM, the Commission received 
broad support for clarifying that the D Block licensee may construct 
and operate the shared wireless broadband network using the entire 20 
megahertz of D Block spectrum and public safety broadband spectrum as a 
combined, blended resource.\156\ These commenters note that allowing 
the combined flexible use of spectrum will promote efficient use of the 
spectrum and make the D Block license more commercially attractive

[[Page 57766]]

while facilitating priority access and preemption.\157\ Supporters of 
this approach included members of the public safety community.\158\ In 
addition, Google and Alcatel Lucent note that this approach is 
consistent with the Communications Act.\159\
---------------------------------------------------------------------------

    \156\ ALU Comments at 8-9; Google Comments at 4-5; Ericsson 
Comments at 17, 24 n.56; Hypres Comments at 7; Motorola Comments at 
10-11; SouthernLINC Reply Comments at 9-10. But see TE M/A-COM 
Comments at 8 (arguing against a combined network).
    \157\ See ALU Comments at 8; Google Comments at 4-5; Ericsson 
Comments at 24 n.56.
    \158\ NRPC Comments at 6; APCO Comments at 27.
    \159\ Google Comments at 4-5; ALU Comments at 8-9.
---------------------------------------------------------------------------

    79. Discussion. Based on the record, the Commission tentatively 
concludes that a D Block licensee may construct and operate the shared 
wireless broadband network using the entire 20 megahertz of D Block 
spectrum and public safety spectrum as a combined, blended resource. 
That 20 megahertz of spectrum may be assigned to users without regard 
to whether a public safety user is assigned frequencies in the D Block 
or a commercial user is assigned frequencies in the public safety 
broadband spectrum, so long as 50 percent of the capacity available 
from the combined 20 megahertz of spectrum is assigned to the public 
safety users and the other 50 percent to the commercial users, 
consistent with the respective capacity and priority rights of the D 
Block license and the Public Safety Broadband License and with the 
Commission rules.\160\
---------------------------------------------------------------------------

    \160\ Second FNPRM, 23 FCC Rcd at 8077, para. 80.
---------------------------------------------------------------------------

    80. The Commission agrees with the commenters \161\ who conclude 
that permitting the combined use of spectrum in this fashion provides 
for a more efficient and effective use of spectrum and provides further 
flexibility for a D Block licensee to use all available wireless 
broadband technologies to build and operate the network and thus 
promote the Commission's ultimate goal of making available a nationwide 
interoperable broadband network for public safety users. If given the 
flexibility of undivided spectrum, a D Block licensee can use the best 
available network management technologies to allocate and prioritize 
users efficiently across the full 20 megahertz of spectrum,\162\ 
thereby increasing throughput and capacity over what can be achieved 
with two separate 10 megahertz networks.\163\ Further, the Commission 
expects that by focusing its resources on a blended network design 
rather than a network that must carefully segregate different services 
into separate frequency bands, a D Block licensee should also be able 
to conserve costs. This improved flexibility, efficiency, and cost 
should make the license more attractive to potential bidders.\164\
---------------------------------------------------------------------------

    \161\ ALU Comments at 8; Google Comments at 4-5; NRPC Comments 
at 6; Ericsson Comments at 17-18; Hypres Comments at 7; SouthernLINC 
Reply Comments at 9-10.
    \162\ See ALU Comments at 8.
    \163\ See Ericsson Comments at 17.
    \164\ See Google Comments at 4; SouthernLINC Reply Comments at 
9-10.
---------------------------------------------------------------------------

(ii) Priority Public Safety Access to Commercial Spectrum During 
Emergencies
    81. Background. In the Second Report and Order, the Commission 
required the D Block licensee to provide the Public Safety Broadband 
Licensee with priority access during emergencies to the spectrum 
associated with the D Block license (in addition to the 700 MHz public 
safety broadband spectrum).\165 \
---------------------------------------------------------------------------

    \165\ Second Report and Order, 22 FCC Rcd at 15441-42 paras. 
426-27.
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    82. In the Second FNPRM, the Commission sought comment on whether 
the Commission should continue to require the D Block licensee to 
provide the Public Safety Broadband Licensee with priority access 
during emergencies to the spectrum associated with the D Block 
license.\166\ The Commission invited comment on whether this obligation 
is essential to ensure that the network capacity will meet public 
safety wireless broadband needs.\167\ The Commission asked, 
alternatively, whether removing the obligation could significantly 
improve the chances that this proceeding will succeed in achieving the 
Commission's goal of making available to public safety users a 
nationwide, interoperable, broadband network that incorporates the 
greater levels of availability, robustness, security, and other 
features required for public safety services.\168\ The Commission 
sought further comment on whether, if the Commission continues to 
require that the D Block licensee provide the Public Safety Broadband 
Licensee with priority access during emergencies to the spectrum 
associated with the D Block license, the Commission should provide more 
clarity on the circumstances that would constitute an ``emergency'' for 
this purpose.\169\
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    \166\ Second FNPRM, 23 FCC Rcd at 8079, para. 85.
    \167\ Id.
    \168\ Id.
    \169\ Id. at 8079-80, para. 86.
---------------------------------------------------------------------------

    83. Comments. In response to Second FNPRM, the Commission received 
comments generally supporting the idea of providing public safety 
entities with some additional spectrum capacity for emergency 
needs,\170\ but parties diverged on the extent of such access. While 
the public safety community generally agrees that public safety users 
should have at least some priority access in emergencies to the 
spectrum associated with the D Block,\171\ they are divided on whether 
geographic and time limits should be established.\172\ PSST argues that 
``public safety priority access during emergency situations should be 
limited to 70% of total network capacity [or 40% of the D Block 
capacity] and that public safety preemption rights should not exceed 
50% of the network capacity.'' \173\ APCO proposes avoiding the 
difficulties in defining the contours of emergency priority access by 
allowing both public safety and commercial users to take advantage of 
any available channels in the combined 20 megahertz spectrum when 
traffic is low, but restricting each set of users to 10 megahertz 
during periods of high traffic.\174\ APCO argues that public safety 
users should have priority access to all 20 megahertz only in rare 
circumstances.\175\ The Commission notes that several commenters 
suggest the possibility of using technology to dynamically prioritize 
signals throughout the network.\176\
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    \170\ PSST Comments at 32; Seybold Comments at 2-3; RPC 33 
Comments at 10; AASHTO Comments at 13; NATOA et al. Comments at iv; 
SDR Forum Comments at 10, 16; PGCC Comments at 12; Televate Comments 
at 11; NTCH Comments at 4; AT&T Reply Comments at 18; NPSTC Comments 
at 12; Ericsson Comments at 25; NATOA et al. Reply Comments at 11; 
Verizon Wireless Reply Comments at 7; But see Bazelon Comments at 1-
2, 22 (arguing that a priority access requirement would 
inappropriately diminish the value of the D Block for commercial 
entities, thereby reducing the likelihood of a winning bid as well 
as proceeds to use to support a public safety network).
    \171\ PSST Comments at 32; Seybold Comments at 2-3; RPC 33 
Comments at 10; AASHTO Comments at 13; NATOA et al. Comments at iv; 
SDR Forum Comments at 10, 16; PGCC Comments at 12; Televate Comments 
at 11; NTCH Comments at 4; AT&T Reply Comments at 18; NPSTC Comments 
at 12; Ericsson Comments at 25; NATOA et al. Reply Comments at 11; 
Verizon Wireless Reply Comments at 7; But see Bazelon Comments at 1-
2, 22 (arguing that a priority access requirement would 
inappropriately diminish the value of the D Block for commercial 
entities, thereby reducing the likelihood of a winning bid as well 
as proceeds to use to support a public safety network).
    \172\ See RPC 33 Comments at 17-18 (supporting limitations); 
Wireless RERC Comments at 12 (same). But see AASHTO Comments at 12-
13 (noting that any limitations could hinder safety operations in 
the event of an emergency).
    \173\ PSST Reply Comments at ii, 7-8. PSST stated in it initial 
comments that ``it is reasonable to limit priority access for public 
safety to 70% of overall network capacity of the SWBN, or just 40% 
of the D Block spectrum capacity.'' PSST Comments at 33.
    \174\ APCO Comments at 27-28. But see NATOA et al. Reply 
Comments at 11.
    \175\ APCO Comments at 27-28.
    \176\ SDR Forum Comments at 16, 25, 27; AT&T Comments at 13; 
NPSTC Comments at 47-48.
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    84. Other commenters argue that unlimited emergency priority access 
to the capacity set aside for commercial use would undermine the 
commercial viability of the network and the success

[[Page 57767]]

of the Public/Private Partnership.\177\ AT&T and Alcatel-Lucent 
recommend that the Commission model that priority access after the 
Department of Homeland Security's Wireless Priority Service,\178\ which 
allows government officials to contract with CMRS providers for 
priority telecommunications services.\179\ With regard to geographic 
limitations, Ericsson argues ``that priority access should be limited 
to specific geographic areas affected by serious emergencies, to avoid 
jeopardizing the commercial viability of the 700 MHz Public/Private 
Partnership, and that priority access should be properly limited to the 
area directly affected by the emergency.'' \180\ As to bandwidth 
limitations, some propose that at least 50 percent of the capacity be 
prioritized for public safety use.\181\
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    \177\ Leap Wireless Comments at 13-14 (arguing argues that 
public safety users should be allowed priority access to only 50% of 
available network capacity, ``with no other preemption requirements 
on the network''); Verizon Wireless Comments at 9 (``providing 
priority access to public safety users on a preemptive basis reduces 
the value of the network to their commercial counterparts''); 
Motorola Comments at 8; but see Sprint Nextel Comments at 14-15 
(proposing that the D Block auction winner offer ``near real-time 
prioritization,'' under which the D Block licensee moves ``all 
commercial traffic off network within ten minutes of receiving a 
call from authorized public safety officials'') But see Verizon 
Wireless Reply Comments at 7 (noting that reducing priority access 
to 50% of the network ``would frustrate the very purpose of building 
a new dedicated public safety network.'').
    \178\ See http://wps.ncs.gov/.
    \179\ AT&T Comments at 13; see also ALU Comments at 9-10; AT&T 
Reply Comments at 18 n.59.
    \180\ Ericsson Comments at 23.
    \181\ Motorola Comments at 10. Ericsson further argues that 
``the priority access and preemption for public safety can be 
applied on the entire 20 MHz'' and that ``3GPP standards provide 
automatic methods for providing such priority access and 
preemption.'' Ericsson Comments at 24. But see CEA Comments at 3 
(``the Commission should limit public safety's priority access to D 
Block spectrum in emergencies to 50 percent of the commercial D 
Block capacity.'')
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    85. Several commenters also argue that the Commission should define 
the specific circumstances that constitute an ``emergency'' before 
conducting an auction,\182\ suggesting several methods to achieve this 
goal. Others argue that the parties should decide this issue for 
themselves,\183\ and one commenter argues that emergencies should be 
declared only by senior levels of state or local government.\184\ Some 
commenters agree that the specific situations listed in the Second 
FNPRM \185\ could be considered an emergency.\186\
---------------------------------------------------------------------------

    \182\ See AT&T Comments at 13; Qualcomm Comments at 10-11; 
Google Comments at 6-7; NRPC Comments at 9-10; Bazelon Comments at 
1; Wireless RERC Comments at 11; APCO Comments at 26. But see Leap 
Wireless Comments at 13-14. RPC 33 proposes that an emergency exists 
anytime lives or ``significant property'' is at risk, but that the 
decision should be made locally, rather than by a national board. 
RPC 33 Comments at 17.
    \183\ Qualcomm Comments at 10-11. Televate similarly argues that 
commercial bidders should submit before the auction proposals that 
state under what conditions they will allow priority access to their 
networks. Televate Comments at 11. NPSTC agrees that the Commission 
should define certain circumstances that would constitute an 
emergency ``after consultation with the PSBL and D Block licensee, 
and in circumstances the PSBL has defined and Commission approves 
prior to the D Block auction.'' NPSTC Comments at 12-13.
    \184\ NPSTC Comments at 12-13.
    \185\ See Second FNPRM, 23 FCC Rcd at 8079-80 para. 86.
    \186\ Ericsson Comments at 23-24; California Comments at 6. The 
Wireless RERC urges, however, that the terms ``significant'' and 
``substantial,'' as used in the Second FNPRM, be further clarified 
or deleted from the descriptions of those situations. Wireless RERC 
Comments at 12.
---------------------------------------------------------------------------

    86. Discussion. Based on the record, the Commission tentatively 
concludes that emergency access to the D Block commercial capacity 
should be mandated only in the event of an ``emergency,'' as that term 
was defined in the Second FNPRM, specifically:
    <bullet> The declaration of a state of emergency by the President 
or a state governor.
    <bullet> The issuance of an evacuation order by the President or a 
state governor impacting areas of significant scope.
    <bullet> The issuance by the National Weather Service of a 
hurricane or flood warning likely to impact a significant area.
    <bullet> The occurrence of other major natural disasters, such as 
tornado strikes, tsunamis, earthquakes, or pandemics.
    <bullet> The occurrence of manmade disasters or acts of terrorism 
of a substantial nature.
    <bullet> The occurrence of power outages of significant duration 
and scope.
    <bullet> The elevation of the national threat level to either 
orange or red for any portion of the United States, or the elevation of 
the threat level in the airline sector or any portion thereof, to red.
    87. The Commission tentatively concludes that for the first two 
conditions and when the national or airline sector threat is set to 
red, the D Block licensee(s) must provide public safety users priority 
access \187\ to, but not preemptive use of, up to 40 percent of the 
commercial D Block spectrum capacity (i.e., 2 megahertz in each of the 
uplink and downlink blocks), assuming the full public safety broadband 
block spectrum capacity is being used, for an aggregate total of 14 
megahertz of overall network capacity.\188\ For all other emergencies 
listed above, the D Block licensee(s) must provide priority access to, 
but not preemptive use of, up to 20 percent of the commercial spectrum 
capacity (i.e., 1 megahertz in each of the uplink and downlink blocks). 
Furthermore, under either scenario, the right to emergency-based 
priority access must be limited to the time and geographic scope of the 
emergency. To trigger emergency-based priority access, the PSBL will 
request, on behalf of the impacted public safety agencies, that the D 
Block licensee provide such access. Priority access requests initiated 
by the PSBL will cover a 24-hour time period, and must be reinitiated 
by the PSBL for each 24-hour time period thereafter that the priority 
access is required. In the event that the D Block licensee and the PSBL 
do not agree that an emergency has taken place, the PSBL may ask the 
Defense Commissioner to resolve the dispute.
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    \187\ To be clear, by ``priority access,'' the Commission mean 
that the public safety user would be assigned the next available 
channel over a commercial user--i.e., the public safety user would 
be placed at the top of the queue--and would not preempt a 
commercial call in progress.
    \188\ See PSST Comments at iii, 16 n.28, 33 (explaining that 
``it is reasonable to limit priority access for public safety to 70% 
of overall network capacity of the SWBN, or just 40% of the D Block 
spectrum capacity.''); PSST Reply Comments at ii (``public safety 
priority access during emergency situations should be limited to 70% 
of total network capacity and that public safety preemption rights 
should not exceed 50% of the network capacity.'').
---------------------------------------------------------------------------

    88. The Commission expects that the instances under which 
emergency-based priority access would be triggered under the definition 
the Commission tentatively proposes above will be relatively 
infrequent. Moreover, the Commission agrees generally with APCO that 
through responsible capacity management that permits public safety user 
groups to prioritize their regional and local use of the shared 
wireless broadband network, and which is embedded into the network 
prior to deployment, it will be possible to provide critical services 
using no more than the ten megahertz public safety portion of the 
shared wireless broadband network under virtually all but the rarest of 
circumstances.\189\ At

[[Page 57768]]

the same time, the Commission proposed approach should continue to 
guarantee additional network capacity to meet public safety wireless 
broadband needs in the most serious emergencies. The Commission notes, 
for example, that both of the circumstances cited by the PSST--the 
events of September 11, 2001, and Hurricane Katrina--would have met the 
standard the Commission proposes. \190\
---------------------------------------------------------------------------

    \189\ See APCO Comments at 28-29. APCO recommended that in 
circumstances under which ``sector loading increases and service 
contention starts to occur, there [should be] a[n] immediate 
transition to a hard partition state'' where commercial and public 
safety use of the shared wireless broadband network would revert to 
50% of the paired spectrum (i.e., where commercial users accessed 
only the ten megahertz of D Block spectrum and public safety users 
accessed only the ten megahertz of public safety broadband 
spectrum). The only instances in which this ``hard partition'' would 
be removed, allowing public safety users priority access some 
portion of the commercial D Block spectrum, would be pursuant to 
Presidential Order or ``by any other existing means where government 
can seize control of commercial assets--a situation that rarely 
occurs, and would not be a specific impact to the [National 
Broadband Network] any more than any other commercial asset.'' APCO 
Comments at 27.
    \190\ PSST Comments at 33. See ``Declaration of National 
Emergency by Reason of Certain Terrorist Attacks,'' http://www.whitehouse.gov/news/releases/2001/09/20010914-4.html.
---------------------------------------------------------------------------

    89. In light of the fact that the Commission expects public safety 
use of the priority access mechanism to be infrequent, the Commission 
believes it should not require public safety users of priority access 
to pay an additional charge to the D Block licensee for such use over 
and above the basic monthly service charge discussed elsewhere in this 
Third FNPRM. Although the Commission stated in the Second Report and 
Order that separate fees for priority access could be specified in the 
NSA,\191\ it did so based on a broader definition of priority access 
than the one the Commission proposes now. For example, the Second 
Report and Order permitted public safety preemption of ongoing 
commercial traffic,\192\ which the Commission would no longer allow. 
The Commission also proposed more specific criteria for defining 
emergencies that would trigger priority access rights and limitations 
on the duration of priority access. The Commission therefore seeks 
comment on its view that separate fees for priority access should not 
be allowed, or whether a separate fee structure would be appropriate to 
ensure that the D Block licensee can recover its costs for providing 
priority access.
---------------------------------------------------------------------------

    \191\ Second Report and Order, 22 FCC Rcd at 15448 ] 450.
    \192\ Id. at 15442 ] 428.
---------------------------------------------------------------------------

    90. The Commission also expects that the Commission proposed 
approach will significantly improve the chances that this proceeding 
will succeed in achieving the Commission's goal of making a nationwide, 
interoperable, broadband network available to public safety users. The 
Commission appreciates that, to be viable, the commercial services 
offered on the D Block spectrum must be competitive with other 
commercial mobile services. Commercial viability could be adversely 
impacted if users of a D Block licensee's commercial services perceive 
that their service may be preempted or unavailable at the times when 
they most need to use it, while competing providers offer uninterrupted 
services. In clarifying the circumstances that would constitute an 
emergency, requiring priority access rather than preemption, and 
providing that only a portion of the commercial capacity will be 
subject to public safety priority access even in emergencies, the 
Commission seeks to minimize any diminution of the commercial value of 
the D Block spectrum. The Commission tentatively finds that this 
approach offers the best opportunity to create a commercially viable 
network that can satisfy the demands of public safety users. The 
Commission seeks comment on this approach.
    91. Commercial Operations in the Public Safety Spectrum on a 
Secondary Basis. While the Commission proposes to modify the rules 
governing public safety's emergency access to commercial spectrum, the 
Commission tentatively concludes that the Commission's rules for 
commercial access to public safety spectrum should remain the same, 
subject to the Commission's clarification regarding combined/blended 
use. As the Commission explains below, the spectrum access permitted 
here and the conditions placed on the use of the spectrum are designed 
to ensure that any commercial use does not undermine the ``principal 
purpose'' of the services provided in this band ``to protect the safety 
of life, health, or property,'' as required by Section 337.\193\ And as 
the Commission determined in the Second Report and Order, commercial 
operations on a secondary, preemptible basis will maximize the 
efficient use of the spectrum by permitting full use of the public 
safety broadband spectrum.\194\ Further, providing the D Block licensee 
with the opportunity to offer commercial services on this spectrum, on 
a secondary basis, is an integral part of a viable framework for 
enabling the 700 MHz Public/Private Partnership to finance the 
construction of a nationwide, interoperable public safety broadband 
network.
---------------------------------------------------------------------------

    \193\ 47 U.S.C. 337(a)(1), (f)(1)(A).
    \194\ Second Report and Order, 22 FCC Rcd at 15437-38, para. 
416.
---------------------------------------------------------------------------

(iii) Consistency With Section 337 of the Communications Act
    92. Background. Section 337 of the Communications Act, as amended, 
required the Commission to allocate, from the 746-806 MHz Band, 24 
megahertz for public safety services and 36 megahertz for ``commercial 
use to be assigned by competitive bidding pursuant to section 309(j).'' 
\195\ Some commenters suggest that rules that would permit public 
safety use of spectrum allocated for commercial use or commercial use 
of public safety spectrum on a secondary basis would violate these 
requirements.\196\
---------------------------------------------------------------------------

    \195\ 47 U.S.C. 337(a).
    \196\ See, e.g., MetroPCS Comments at 14-16.
---------------------------------------------------------------------------

    93. Discussion. In the Second Report and Order, the Commission 
analyzed whether the 700 MHz Public/Private Partnership rules regarding 
the use of spectrum by the shared wireless broadband network were 
consistent with Section 337.\197\ The Commission found that Section 
337(a)(1), requiring 24 megahertz for ``public safety services,'' does 
not prohibit us from permitting commercial operations on a secondary 
basis to the 10 megahertz of the 700 MHz public safety spectrum to 
facilitate the build-out of a public safety network.\198\ The 
Commission further found that Section 337(a)(2), which directs us to 
allocate 36 megahertz ``for commercial use,'' does not prohibit us from 
requiring the D Block licensee to provide public safety users with 
priority access to D Block license spectrum in an ``emergency.'' \199\ 
The Commission continues to find the Commission's analysis of these 
issues in the Second Report and Order, persuasive. Further, because the 
Commission is not proposing to modify the rules regarding secondary 
commercial use of the public safety spectrum, the Commission's 
reasoning and conclusions in the Second Report and Order, regarding 
such use apply to the Commission's secondary use proposal here as well. 
While the Commission does propose to modify public safety access to 
commercial spectrum in emergencies, such modifications would only 
reduce or clarify the scope of the emergency access. Because the 
Commission's conclusion in the Second Report and Order, that such 
access was consistent with Section 337 rested in part on a finding that 
``emergency access to commercial spectrum would be triggered only in 
rare circumstances,'' the Commission finds that the reasoning and 
conclusion applies even more strongly to the proposed emergency access 
rules. Accordingly, consistent with the Second Report and Order's,

[[Page 57769]]

reasoning and conclusions, the Commission concludes that the 
Commission's proposals regarding commercial use of public safety 
spectrum on a secondary, preemptible basis and public safety priority 
use of commercial spectrum capacity are consistent with the 
requirements of Section 337.
---------------------------------------------------------------------------

    \197\ See Second Report and Order, 22 FCC Rcd at 15436-43 paras. 
412-430.
    \198\ See id. at 15437-41 paras. 413-25.
    \199\ See id. at 15442 para. 429. The Commission also found that 
imposing the 700 MHz Public/Private Partnership condition on the D 
Block did not prevent us from auctioning the license and was 
therefore consistent with the mandate under Section 337 that the 
spectrum be auctioned pursuant to Section 309(j). See id. at 15442-
43 para. 430.
---------------------------------------------------------------------------

    94. The Commission finds that the Commission's proposal to permit 
the D Block licensee to construct and operate the shared wireless 
broadband network using the entire 20 megahertz of D Block spectrum and 
public safety spectrum as a combined, blended resource is also 
consistent with Section 337. The Commission notes that Section 
337(a)(1) provides us the authority to allocate 24 megahertz for public 
safety services ``according to the terms and conditions established by 
the Commission.'' \200\ The Commission has stated previously that 
``this phrase * * * afford[s] us broad discretion to impose conditions 
on the use of this spectrum to effectuate its optimal use by public 
safety * * * .'' \201\ The Commission concludes that permitting a 
blended use approach does in fact serve this purpose, given the 
Commission's finding above that blended use can provide a more 
efficient and effective use of the combined spectrum resource and thus 
promote the Commission's ultimate goal of making available an 
interoperable broadband network for public safety users nationwide. 
Indeed, given the Commission's conclusion that a 700 MHz network 
providing for shared use of commercial and public safety spectrum is 
itself legally permissible, the Commission finds it unlikely that 
Congress intended to preclude an efficient implementation of such 
sharing. The Commission emphasizes that, under a blended use approach, 
public safety users will still be guaranteed priority access to 10 
megahertz of 700 MHz spectrum at all times consistent with the capacity 
to which they are entitled under the public safety broadband license. 
The blended use approach does not deprive either commercial or public 
safety users of the spectrum capacity that Congress directed to be 
allocated for their use, and is thus consistent with both the purpose 
and text of the statute.
---------------------------------------------------------------------------

    \200\ 47 U.S.C. 337(a)(1).
    \201\ Second Report and Order, 22 FCC Rcd at 14339 para. 419.
---------------------------------------------------------------------------

b. Technical Requirements of the Shared Wireless Broadband Network
    95. Background. In the Second Report and Order, the Commission 
found that, to ensure a successful public/private partnership between 
the D Block licensee and the Public Safety Broadband Licensee, with a 
shared nationwide interoperable broadband network infrastructure that 
meets the needs of public safety, the Commission must adopt certain 
technical network requirements.\202\ Accordingly, among other 
requirements, the Commission mandated that the network incorporate the 
following technical specifications:
---------------------------------------------------------------------------

    \202\ Second Report and Order, 22 FCC Rcd at 15433 para. 405.
---------------------------------------------------------------------------

    <bullet> Specifications for a broadband technology platform that 
provides mobile voice, video, and data capability that is seamlessly 
interoperable across agencies, jurisdictions, and geographic areas. The 
platform should also include current and evolving state-of-the-art 
technologies reasonably made available in the commercial marketplace 
with features beneficial to the public safety community (e.g., 
increased bandwidth).
    <bullet> Sufficient signal coverage to ensure reliable operation 
throughout the service area consistent with typical public safety 
communications systems (i.e., 99.7 percent or better reliability).
    <bullet> Sufficient robustness to meet the reliability and 
performance requirements of public safety. To meet this standard, 
network specifications must include features such as hardening of 
transmission facilities and antenna towers to withstand harsh weather 
and disaster conditions, and backup power sufficient to maintain 
operations for an extended period of time.
    <bullet> Sufficient capacity to meet the needs of public safety, 
particularly during emergency and disaster situations, so that public 
safety applications are not degraded (i.e., increased blockage rates 
and/or transmission times or reduced data speeds) during periods of 
heavy usage. In considering this requirement, the Commission expects 
the network to employ spectrum efficient techniques, such as frequency 
reuse and sectorized or adaptive antennas.
    <bullet> Security and encryption consistent with state-of-the-art 
technologies.\203\
---------------------------------------------------------------------------

    \203\ Id.
---------------------------------------------------------------------------

    96. The Commission required that the parties determine more 
specifically what these technical specifications would be and implement 
them through the NSA. In addition, the Commission required that the 
parties determine and implement other detailed specifications of the 
network that the D Block licensee would construct.\204\ The Commission 
determined that allowing the parties to specify details, including the 
technologies that would be used, subject to approval by the Commission, 
would provide the parties with flexibility to evaluate the cost and 
performance of all available solutions while ensuring that the shared 
wireless broadband network has all the capabilities and attributes 
needed for a public safety broadband network.\205\
---------------------------------------------------------------------------

    \204\ Id. at 15434 para. 406.
    \205\ Id. at 15426 para. 383.
---------------------------------------------------------------------------

    97. In the Second FNPRM, the Commission sought comment on whether 
the Commission should clarify or modify any aspect of the technical 
network requirements adopted in the Second Report and Order or 
otherwise establish with more detail the technical requirements of the 
network.\206\ To guide the discussion and enable more focused comment, 
the Commission attached as an appendix a possible technical framework 
(Technical Appendix) that identified in greater detail potential 
technical parameters for the shared wireless broadband network. The 
Commission sought detailed comment on the Technical Appendix.
---------------------------------------------------------------------------

    \206\ Second FNPRM, 23 FCC Rcd at 8071 para. 61.
---------------------------------------------------------------------------

    98. The Commission also sought comment on whether any changes to 
requirements were needed to reflect the practical differences between 
the architecture of traditional local wireless public safety systems 
and the architecture of nationwide commercial broadband network 
systems.\207\ Conversely, the Commission sought comment on whether to 
require national standardization in the implementation of the network 
requirements, and the extent to which national standardization would 
help the network to achieve efficiency and economies of scale and 
scope.\208\
---------------------------------------------------------------------------

    \207\ Second FNPRM, 23 FCC Rcd at 8072 para. 64.
    \208\ Second FNPRM, 23 FCC Rcd at 8072 para. 64.
---------------------------------------------------------------------------

    99. Further, the Commission sought comments on other specifications 
the Commission required of the network, including:
    <bullet> A mechanism to automatically prioritize public safety 
communications over commercial uses on a real-time basis and to assign 
the highest priority to communications involving safety of life and 
property and homeland security consistent with the requirements adopted 
in the Second Report and Order;
    <bullet> Operational capabilities consistent with features and 
requirements specified by the Public Safety Broadband Licensee that are 
typical of current and evolving state-of-the-art public safety systems 
(such as connection to the PSTN, push-to-talk, one-to-one and one-to-
many communications, etc.);

[[Page 57770]]

    <bullet> Operational control of the network by the Public Safety 
Broadband Licensee to the extent necessary to ensure public safety 
requirements are met; and
    <bullet> A requirement to make available at least one handset that 
would be suitable for public safety use and include an integrated 
satellite solution, rendering the handset capable of operating both on 
the 700 MHz public safety spectrum and on satellite frequencies.\209\
---------------------------------------------------------------------------

    \209\ Second Report and Order,, 22 FCC Rcd. at 15433-34 para. 
405.
---------------------------------------------------------------------------

    100. The Commission sought comment on whether the Commission should 
itself establish, in a detailed and comprehensive fashion, the 
technical obligations of the D Block licensee with regard to the 
network, and if so, what specifications it should adopt. The Commission 
sought comment on whether the technical framework set forth in the 
Technical Appendix could, following comment on its specific components, 
help establish an appropriate set of requirements for the shared 
wireless broadband network.\210\ The Commission also sought comment on 
a number of particular technical issues.\211\
---------------------------------------------------------------------------

    \210\ Second FNPRM, 23 FCC Rcd at 8074 para. 70.
    \211\ Second FNPRM, 23 FCC Rcd at 8074-79 paras. 71-83.
---------------------------------------------------------------------------

    101. The majority of commenters argue that the Commission should 
provide more specificity regarding technical network requirements. 
APCO, for example, recommends that ``all steps be taken to either pre-
define or eliminate as many negotiating points of the NSA as 
possible.'' \212\ AT&T states that the Commission must ``clarify the 
key requirements for the public safety network and the rights and 
responsibilities for all parties to the Public/Private Partnership * * 
*''and that making such clarifications will ``inform commercial 
entities about potential risks, benefits, and required amounts of 
financial investment, which will enable commercial entities to evaluate 
the commercial viability of the Public/Private Partnership.'' \213\ The 
PSST agrees that ``a substantially more detailed list of technical 
specifications should be developed in advance of the D Block re-
auction.'' \214\ It states that, on balance, ``the benefit of greater 
certainty for prospective bidders outweighs the natural inclination of 
parties to maintain maximum flexibility during a negotiation process, 
particularly one of such complexity and economic significance.'' \215\ 
The PSST provides proposed rules that include detailed technical 
requirements for the shared wireless broadband network.\216\
---------------------------------------------------------------------------

    \212\ APCO Comments at 26.
    \213\ AT&T Comments at 9.
    \214\ PSST Comments at 29.
    \215\ PSST Comments at 29.
    \216\ Addendum to PSST Comments.
---------------------------------------------------------------------------

    102. Discussion. The Commission notes that several technical 
issues, such as network coverage, prioritization of services, and 
operational control of the network are addressed elsewhere in this 
notice. In this section, the Commission specifically addresses 
requirements pertaining to: the broadband technology platform; 
interoperability; availability, robustness and hardening of the 
network; capacity, throughput and quality of service; security and 
encryption; power limits/power flux density limits/related notification 
and coordination requirements; and the satellite-capable handset 
requirement.
    103. Based on the record developed in this proceeding, the 
Commission tentatively concludes that the Commission should establish 
more detailed technical requirements for the shared wireless broadband 
network. The Commission tentatively concludes that this approach will 
provide additional certainty regarding the obligations of the D Block 
licensee(s) and the costs of the shared wireless broadband network. The 
Commission anticipates that specifying the technical requirements as 
completely as possible at this time, and reducing the issues that will 
be left to post auction negotiation, will provide greater assurance to 
potential bidders regarding the commercial viability of the shared 
wireless broadband network while ensuring that the network meets public 
safety's needs.\217\ Thus, the Commission tentatively concludes that 
the detailed technical requirements the Commission proposes to adopt as 
described herein would best serve the Commission's goal of making a 
broadband, interoperable network available on a nationwide basis to 
public safety entities. The Commission seeks comment on these tentative 
conclusions.
---------------------------------------------------------------------------

    \217\ The Commission has appended an NSA term sheet, which 
provides a summary of major terms that the parties must include in 
their agreement(s). See, supra, Appendix D.
---------------------------------------------------------------------------

    104. As noted earlier, a number of commercial interests assert that 
the costs associated with deploying a shared network designed to public 
safety specifications would exceed those of typical commercial networks 
and would directly impact the commercial viability of the network.\218\ 
They maintain that simply building another commercial grade network 
will be inadequate to meet public safety needs, and that it is 
imperative that the wireless broadband network be designed to meet the 
performance requirements of public safety and to provide the necessary 
features and applications so that public safety can effectively 
discharge their duties. Many of the commenters from the public safety 
community argue that public safety's requirements must not be 
diminished in order to make the shared wireless broadband network 
commercially viable. Motorola suggests that it is not possible to 
balance the interests of public safety and commercial service providers 
and that additional funding from the Federal government is required to 
make the combined network successful.\219\ APCO supports the 
development of a national, interoperable, broadband network that is 
designed, maintained, and operated to meet the requirements of public 
safety, but recognizes that some compromises regarding public safety 
requirements may be necessary to attract a private sector partner 
through the D Block auction.\220\ In developing the Commission proposed 
technical rules, the Commission has attempted to balance public 
safety's requirements with the capabilities that may be commercially 
viable based on the record in this proceeding. The proposed technical 
requirements take into account the detailed technical requirements 
proposed by the PSST and comments filed in response to the Second FNPRM 
and Technical Appendix.
---------------------------------------------------------------------------

    \218\ AT&T Comments at 2; MetroPCS Comments at 5; Motorola 
Comments at 7-9; Sprint Nextel Comments at 13; VerizonWireless 
Comments at 3.
    \219\ Motorola Comments at 7.
    \220\ APCO Comments at 6.
---------------------------------------------------------------------------

    105. Broadband Technology Platform. Many commenters argue that the 
Commission should adopt guidelines specifying that the joint network 
must be built with state-of-the-art, commercially available, standards-
based technology.\221\ For example, AT&T argues that the baseline 
guidelines should be sufficiently flexible to permit the use of 
existing commercial technology, where such components meet public 
safety's capability requirements.\222\ The Commission agrees with 
commenters that maximizing the use of commercially available technology 
can substantially increase the speed and decrease the cost of 
deployment of the network.\223\ In

[[Page 57771]]

addition, it is also likely to significantly reduce the costs of end 
user devices for first responders. Moreover, by permitting the 
leveraging of existing commercial network infrastructure, the shared 
wireless broadband network will be able to be built out more 
efficiently, thus making participation in the Partnership more 
attractive to commercial entities.\224\ Thus, based on these 
considerations, the Commission tentatively concludes that the network 
should utilize standardized commercial technologies. The Commission 
further proposes that the broadband platform must be IP-based and 
should also include current and evolving state-of-the-art technologies 
reasonably made available in the commercial marketplace with features 
beneficial to the public safety community.
---------------------------------------------------------------------------

    \221\ See PSST Comments, Attachment C at 2; AT&T Reply Comments 
at 18 (citing Ericsson Comments at 9-15; Interisle Comments at 11; 
Motorola Comments at 7; NATOA Comments at 9 and Technical Report 
Attachment; Northrop Grumman Comments at 6-7; Qualcomm Comments at 
8-10; Verizon Wireless Comments at 16-18; Wireless RERC Comments at 
7-8).
    \222\ AT&T Reply Comments at 18.
    \223\ AT&T Reply Comments at 18; AT&T Comments at 10; Ericsson 
Comments at 14-15; Verizon Wireless Comments at 16-18; AT&T Reply 
Comments at 18.
    \224\ AT&T Reply Comments at 18-19.
---------------------------------------------------------------------------

    106. The Commission tentatively concludes that the shared wireless 
broadband network must provide for fixed and mobile voice, video, and 
data capability. Some parties indicate that certain applications, such 
as fixed video surveillance and fixed point-to-point and point-to-
multipoint services, could use substantial capacity in the network and 
should use other spectrum. Alcatel-Lucent notes, for example, that 
``because video is likely the public safety application with the 
highest data rate requirements, care must be taken to ensure that 
support of video across the service area provide public safety with 
mission-critical operational capabilities without compromising the 
economic viability of the public/private partnership.'' \225\ Stagg 
Newman argues that applications such as streaming video could consume 
much of the capacity of a network and would have a dramatic effect on 
the cost of the network.\226\ Other commenters, such as Tyco 
Electronics, argue that the Commission should ``afford public safety 
agencies maximum flexibility in the use of D Block Spectrum.'' \227\ 
The Commission appreciates the concern that certain applications could 
have a significant impact on network design and costs. However, the 
Commission finds that any effort to prohibit certain types of 
applications would be counterproductive to encouraging development and 
use of the shared wireless broadband network. The Commission notes that 
emerging networks and technologies are capable of accommodating a wide 
variety of services. The Commission expects that the operators and 
users of the shared wireless broadband network will make reasonable 
judgments as to the applications that will run on the network and will 
adapt the network to meet evolving requirements. The Commission invites 
comment on this tentative conclusion.
---------------------------------------------------------------------------

    \225\ ALU Comments at 6.
    \226\ See, e.g., Testimony of Stagg Newman, Public Hearing on 
Public Safety Interoperable Communications--The 700 MHz Band 
Proceeding, Federal Communications Commission, July 30, 2008, at 2, 
http://www.fcc.gov/realaudio/presentations/2008/073008/newman.pdf. 
(estimating that increase in cell edge speed from 300 kbps/75 kbps 
downlink/uplink to 1.2 Mbps/512 kbps downlink/uplink, combined with 
a requirement of inbuilding coverage, would require 2 to 4 times the 
number of cellsites, at a construction cost of $200,000 to $500,000 
and annual operating cost of $50,000 to $100,000 for each cellsite).
    \227\ Tyco Comments at 7.
---------------------------------------------------------------------------

    107. The Commission notes that a variety of commenters--including 
public safety and commercial entities--assert that the D Block licensee 
should take the lead role in choosing the underlying technology of the 
network, in cooperation with the Public Safety Broadband Licensee and 
according to minimum specifications set by the Commission.\228\ The 
Commission disagrees with commenters who argue that the Commission 
should make a specific choice of technology. In view of these 
commenters' differing opinions regarding the most appropriate 
technology,\229\ there does not appear to be a basis for a 
determination regarding the viability of any particular technology for 
shared network at this time. Thus, the Commission tentatively concludes 
that the public interest would be better served by allowing certain 
flexibility to parties interested in the D Block to make a 
determination regarding the technology for the network.
---------------------------------------------------------------------------

    \228\ AT&T Reply Comments at 18 (citing Leap Wireless Comments 
at 12-13; NPSTC Comments at 39; NTCH Comments at 7; RPC Comments at 
13-14; Comments of Wirefree Partners III, LLC at 14-15).
    \229\ See Comcentric Comments at 5; Qualcomm Comments at 8; MSV 
Comments at 21; MSUA Comments at 22; Space Data Corp. Comments at 8-
9; SDR Comments at 23-24; Ericsson Comments at 10, 13-14.
---------------------------------------------------------------------------

    108. The Commission tentatively concludes, however, that the shared 
wireless broadband network must use a common air interface to ensure 
nationwide interoperability as discussed elsewhere in this notice. The 
Commission proposes that the air interface be selected in a manner that 
provides interested parties as much flexibility and control as possible 
in the choice, and with the ability to bid on a license with the 
confidence regarding what technology will be applicable. The Commission 
notes that the record supports a conclusion that two next generation 
technologies in particular, WiMAX and LTE, provide the most likely 
options to provide the necessary broadband level of wireless service to 
public safety entities.\230\ In light of these goals and observations, 
the Commission proposes to adopt two approaches with regard to 
determining the common broadband technology, tailored to whether the 
Commission assigns a nationwide licensee or regional licensees. In the 
event of a nationwide licensee, because there is no concern that 
different entities will seek to adopt different broadband radio access 
network technologies, the Commission proposes to allow the D Block 
license winner complete authority and discretion to choose its 
broadband technology after winning the license. In the event of 
regional licensees, however, the Commission finds that permitting them 
to choose their own technology would run an unacceptable risk of the 
licensees choosing different technologies, or being otherwise unable to 
agree on a technology. Further, the Commission recognizes that it would 
be problematic for the Commission itself to establish a common 
technology post-auction, as parties will likely consider the broadband 
technology a critical element of their business plans and an important 
factor in determining whether to bid for a license. Accordingly, to 
enable the selection of a single broadband technology standard that 
will apply to all regional licensees, the Commission proposes to use 
the auctions process itself. More specifically, the Commission 
tentatively concludes that the Commission will offer three alternative 
sets of licenses: regional licenses conditioned on the use of WiMAX 
technology and regional licenses conditioned on the use of LTE 
technology, as well as the third set of a single nationwide license. 
The bidder(s) for the set covering the greatest aggregate population at 
the close of bidding (with ties between sets broken by which of the 
tied sets received the highest gross bids in the aggregate) will become 
the provisionally winning bidder(s) and determine whether the 
Commission will grant the nationwide license, the WiMAX PSR licenses, 
or the LTE PSR licenses, subject to post-bidding application of a 
minimum sale requirement and all other conditions of the licensing 
process established by Commission rules, including those specific to 
the D Block. The Commission

[[Page 57772]]

discusses this process in greater detail elsewhere in this Third FNPRM. 
The Commission seeks comment on the Commission's proposed 
determinations regarding the radio access technology platform for the 
shared network.
---------------------------------------------------------------------------

    \230\ See, e.g., InterIsle Comments at 2 (``there is much to be 
gained by leveraging CMRS technology on behalf of Public Safety 
users. Technologies such as WiMAX and especially LTE are very 
promising * * * .'').
---------------------------------------------------------------------------

    109. The Commission is cognizant that wireless broadband networks 
have already been deployed in the 700 MHz public safety spectrum in 
certain areas. The Commission does not wish to disrupt existing 
operations that represent substantial investments and are working well 
to serve local public needs. The Commission invites comment as to what 
steps, if any, should be taken with regard to such systems that may 
ultimately not be compatible with the nationwide shared wireless 
broadband network technology. For example, should the Commission 
require use or availability of multi-band radios that could be 
available to public safety first responders that may need to come into 
these areas in times of emergency? If so, how could this be implemented 
and in what timeframe?
    110. Interoperability. The Commission tentatively concludes that 
that the network must provide voice, video, and data capabilities that 
are interoperable across agencies, jurisdictions, and geographic areas. 
By interoperable, the Commission means that the technology, equipment, 
applications, and frequencies employed will allow all participating 
public safety entities, whether on the same network or on different 
regional 700 MHz public safety broadband networks, to communicate with 
one another regardless of whether they are communicating from their 
home networks or have roamed on to another regional network. To achieve 
this level of interoperability, the Commission tentatively concludes 
that, as discussed in detail above, the shared wireless broadband 
network must use a common air interface.\231\ The Commission takes note 
that certain parties assert that a nationwide common air interface is 
not necessary because most interoperability is conducted locally. 
However, in times of a crisis public safety agencies often provide 
assistance far beyond their typical areas of operation. The Commission 
recognizes that one solution is for the local public safety agencies to 
supply compatible equipment to public safety agencies that are coming 
from another area to provide assistance. Such an approach has 
significant drawbacks because it requires a significant supply of extra 
equipment at additional expense. The Commission also notes arguments 
that multiple air interfaces could be accommodated through the use of 
handsets that can operate over multiple broadband air-interfaces or 
through use of software defined radios, particularly at base stations. 
The Commission is concerned, however, that such equipment comes at 
additional expense that would be borne by all public safety users. It 
is also not clear from the record when handsets able to work over all 
the broadband platforms chosen by the various licensees would be 
available. Further, if these multi-mode handsets were produced solely 
to serve the public safety broadband networks, the Public Safety 
Broadband Licensee would have less opportunity to equip first 
responders with off-the-shelf handsets that could be obtained at 
significantly less cost than customized public safety user devices. The 
Commission solicits comment on the Commission's tentative conclusion 
that selection of a single air interface is necessary to ensure 
nationwide interoperability.
---------------------------------------------------------------------------

    \231\ See, e.g., NYPD Comments at 10 (``Regional 
interoperability can be achieved by adapting a common air interface 
and operating on a common frequency band.'').
---------------------------------------------------------------------------

    111. As discussed elsewhere, to achieve interoperability with 
respect to the geographic area option of PSRs, the Commission 
tentatively concludes that the Commission will offer at auction 
alternative sets of PSRs, each conditioned on the licensees' use of a 
particular technology platform. The Commission further tentatively 
concludes that, in the event that there are multiple D Block licensees, 
each regional D Block license winner should be required to enter into 
arrangements both with the other D Block license winners and with the 
Public Safety Broadband Licensee as necessary to ensure 
interoperability between networks. The Commission proposes that such 
arrangements provide, at a minimum, that each D Block licensee will 
provide the ability to roam on its network to public safety users of 
all other 700 MHz public safety broadband networks.\232\ The Commission 
further proposes that the NSA of each regional D Block licensee must 
specify that the licensee will provide public safety users of all other 
700 MHz public safety regional networks with the ability to roam on its 
network, and should specify the relevant terms and conditions under 
which roaming is provided. However, to ensure that the broadband 
network supports public safety interoperability, the Commission 
proposes that D Block licensees should not be permitted to assess 
special roaming charges (over and above service fees charged for in-
region use) in cases where public safety users require roaming for 
mutual aid or emergencies.
---------------------------------------------------------------------------

    \232\ The Commission does not, however, propose to require that 
such roaming arrangements extend to commercial services.
---------------------------------------------------------------------------

    112. A number of commenters suggest that further clarity is needed 
with regard to the role of the shared wireless broadband network 
relative to interoperability with existing public safety networks. For 
example, some parties question whether the shared network was to be 
used for ensuring interoperability with existing legacy public safety 
voice systems or just for users of this spectrum. APCO notes that, 
while the shared network will have capabilities for voice, data and 
video systems, existing public safety systems will be used well into 
the future.\233\ The Commission observes that considerable work has 
been done and is under way to ensure interoperability among existing 
public safety communications systems.
---------------------------------------------------------------------------

    \233\ APCO Comments at 10.
---------------------------------------------------------------------------

    113. The Commission expects that the shared wireless broadband 
network will ensure interoperability in a variety of ways. All public 
safety users that opt to use the shared wireless broadband network will 
have the capability to be interoperable because they will be using a 
common air interface. As a result, radios could be taken from one 
jurisdiction to another, such as occurs for disaster relief, and will 
have the ability to communicate with other public safety users in that 
area. Moreover, multi-band radios could be developed, although at some 
cost premium, that are capable of operating on both the shared wireless 
broadband network and other public safety frequency bands.
    114. The shared wireless broadband network could also be integrated 
with other public safety communications systems via gateways and 
bridges, as already occurs for existing public safety systems operating 
across multiple frequency bands. In this regard, the Commission 
believes it is important that the Commission ensures that the shared 
wireless broadband network have the technical capability to support 
interconnection with public safety operations in public safety 
frequency bands other than the 700 MHz public safety spectrum broadband 
allocation.\234\ Specifically, the Commission means to provide public 
safety with the opportunity to interconnect existing voice-based public 
safety communications systems operating in VHF, UHF, and

[[Page 57773]]

narrowband 700 MHz and 800 MHz bands with the shared network(s). The 
Commission therefore proposes to require the D Block licensee(s) to 
publish IP-based specifications enabling public safety operations in 
other frequency bands to access the shared broadband network(s) via 
bridges and/or gateways. The Commission further tentatively concludes 
to require the Upper 700 MHz D Block licensee to offer gateway-based 
access to the shared network(s) for a standard charge per user (meaning 
per public safety officer/individual), and propose that a fee of $7.50 
per month may serve as an appropriate amount.\235\ As seen in Table 1, 
the Commission bases this proposed fee on the Commission's survey of 
monthly rates for services approximating land mobile radio--including 
``walkie-talkie'' and push-to-talk service--that are add-ons to basic 
monthly service plans and offered under standard government contracts 
to public safety users. The Commission also proposes that public safety 
users themselves bear the costs of the bridges and gateways, including 
installation and maintenance costs, because such equipment would 
essentially serve as an extension of existing public safety systems. 
Parties who suggest that the costs of gateways or bridges should be 
shared between the D Block licensee and the Public Safety Broadband 
Licensee should provide specific information as to the costs involved, 
rationale for sharing these costs, and formula for sharing the costs. 
The Commission invites comment on these proposals.
---------------------------------------------------------------------------

    \234\ The Commission intends to include voice service presently 
conducted on VHF, UHF.
    \235\ Any gateway-based access service necessarily assumes a 
public safety network in place providing radio coverage on the 
desired frequencies in the area of operation.

                      Table 1--Survey: Service Rates for Walkie Talkie/Push-To-Talk Service
----------------------------------------------------------------------------------------------------------------
                                                                                                       Monthly
      Contracting entity/authority            Wireless operator               Service plan             service
                                                                                                         rate
----------------------------------------------------------------------------------------------------------------
State of Florida.......................  Verizon Wireless..........  Basic Push to Talk (Florida          $10.00
                                                                      Plan).                               \236\
State of New York......................  Verizon Wireless..........  America's Choice for Business    8.10 \237\
                                                                      Plan--Push to Talk Option.
                                         Sprint Nextel.............  Unlimited Nextel Group Walkie-   7.50 \238\
                                                                      Talkie.
----------------------------------------------------------------------------------------------------------------

    115. The Commission recognizes that interoperability may not be 
fully achievable without attention to the use of compatible 
applications. As discussed elsewhere, the Public Safety Broadband 
Licensee is responsible for approving public safety applications and 
end user devices. Accordingly, the Commission proposes to clarify that 
in exercising this responsibility, the Public Safety Broadband Licensee 
must ensure that any applications and end users devices it approves 
must be consistent with the interoperability requirements contained in 
the Commission's rules and in accordance with the NSA. The Commission 
invites comment as to the merits of this approach and any other methods 
to achieve interoperability among user applications. In particular, to 
promote interoperability, including interoperability with legacy voice 
systems, the Commission proposes to require the Shared Wireless 
Broadband Network to support a Voice over Internet Protocol (VoIP) 
capability to complement existing public safety mission critical voice 
communication systems.
---------------------------------------------------------------------------

    \236\ State of Florida, Department of Management Services, 
Wireless Voice Services, State Term Contract <greek-i>725-330-05-1, 
Amendment 4, available at http://dms.myflorida.com/business_operations/state_contracts_agreements_and_price_lists/state_term_contracts/wireless_voice_services/contractors_verizon_wireless (last viewed on Sept. 11, 2008). The pla includes unlimited 
one to one and group Push to Talk calling.
    \237\ State of New York, Office of General Services, Verizon 
Wireless Contract Number PS61217 (effective August 15, 2007), 
available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last viewed on Sept 11, 2008). This rate 
is available as an add on option for subscribers of the basic voice 
plan offered by Verizon for $32.99 per month.
    \238\ Id. This price reflects a 25 percent discount off the 
standard retail rate of $10.00 per month. The Commission notes that 
Sprint Nextel also offers a ``Basic 200 plan'' for $5 per month.
---------------------------------------------------------------------------

    116. If there are multiple regional D Block licensees, it may be 
necessary to establish a mechanism to enable public safety to 
coordinate with and establish common approaches among these licensees 
with regard to interconnection standards, compatibility with common 
applications, authentication, etc. The Commission invites comment on 
whether the Commission needs to take any specific actions in this 
regard or it can be left to the various licensees.
    117. Availability, Robustness and Hardening. Several commenters 
offer specific proposals regarding the robustness and hardening 
requirements for the network.\239\ After reviewing the record, the 
Commission has made a number of changes to the proposals in the 
Technical Appendix that are reflected in the proposed rules. The 
Commission proposes to require 99.6 percent network availability for 
all terrestrial elements of operation, as suggested by U.S. Cellular. 
The D Block licensee(s) shall use commercially reasonable efforts to 
provide network availability above this requirement, with the target of 
99.9 percent network availability. The methods of measurement are to be 
defined in the Network Sharing Agreement. Sites designated as 
``critical'' will be required to have battery backup power of 8 hours, 
and shall have generators with a fuel supply sufficient to operate the 
generators for at least 48 hours. The D Block licensee(s) will make 
reasonable efforts to provide a fuel supply at ``critical'' sites above 
this requirement sufficient for a minimum of 5 days. The designation of 
a site as ``critical'' shall be a joint decision by the D Block 
licensee(s) and the Public Safety Broadband Licensee, in consultation 
with the relevant community. The designation of sites as ``critical'' 
shall not be required to cover more than 35 percent of the shared 
wireless broadband network sites for the D Block license(s); however, 
the D Block licensee(s) shall use commercially reasonable efforts to 
designate as ``critical'' additional sites requested by the Public 
Safety Broadband Licensee, up to 50 percent of all the licensee's 
sites. The Commission requests comments on these proposals.
---------------------------------------------------------------------------

    \239\ See, e.g., Televate Comments at 10, PSST Comments Appendix 
C at 3, Peha Comments at 13.
---------------------------------------------------------------------------

    118. The Commission also finds considerable support in the record 
for permitting reliance on non-terrestrial options to ensure 
reliability. The PSST, for example, suggests that reliability, 
availability, and hardening expectations could be ``achieved through a 
variety of means [including] backup reliance on satellite coverage.'' 
\240\ SIA, MSV, Inmarsat, and MSUA all encourage the use of satellite 
services as part of the nationwide network. Several other commenters 
also support the use of satellite or similar services to complement the 
overall network.\241\

[[Page 57774]]

MSV in particular proposes that the Commission ``offer the D Block 
licensee the option of providing satellite service in return for 
greater flexibility in meeting certain license requirements.'' \242\ 
These commenters argue that non-terrestrial services can provide 
critical redundancy to a terrestrial system, increasing the reliability 
and robustness of the network.\243\ MSV states, for example, that 
``disasters that impair or destroy terrestrial wireless networks either 
directly or by disabling the power grid are extremely unlikely to have 
any adverse impact on satellite networks.'' \244\
---------------------------------------------------------------------------

    \240\ PSST Comments, Attach. C at 3. See also PSST Comments at 
34 n.72.
    \241\ See Washington Comments at 1; Mississippi Comments at 1; 
Comcentric Comments at 4; Wirefree Comments at 15. Space Data 
advocated using their ``near space,'' ``balloon-borne'' network of 
transceivers that can reach 99.3% of the population less expensively 
than construction a terrestrial network with similar reach. Space 
Data Comments at 1-3, 7. The SDR Forum notes that cognitive radios 
could be used as ``an enabling technology'' to help integrate 
satellite and terrestrial services. SDR Forum at 20-21, 23.
    \242\ MSV Comments at i-ii.
    \243\ See, e.g. MSV Comments at 21.
    \244\ MSV Comments at 9-10.
---------------------------------------------------------------------------

    119. The Commission agrees with commenters that non-terrestrial 
capabilities can serve the interests of public safety by increasing the 
survivability of the system. Although the Commission does not expect 
that non-terrestrial service can fully substitute for terrestrial 
network services, the Commission finds that imposing hardening, and 
robustness requirements on all sites of the network would jeopardize 
the economic viability of the network. Accordingly, the Commission 
proposes to permit the D Block licensee(s) and the Public Safety 
Licensee to agree on other methods to improve network resiliency in 
lieu of designating critical cell sites. These might include deployment 
of mobile assets or the use of satellite facilities. Parties are 
invited to comment on this proposal. The Commission also seeks comment 
on whether additional satellite capability would further enhance the 
nationwide shared wireless broadband network and whether it would serve 
the public interest to provide additional flexibility to a D Block 
licensee in meeting its licensing obligations if it integrates a 
satellite component or other non-terrestrial technology with the shared 
wireless broadband network.
    120. Capacity, Throughput, and Quality of Service. A number of 
parties note that an analysis of the economic viability of the shared 
wireless broadband network cannot be made without addressing certain 
key technical parameters such as edge of cell data rates and data rates 
for indoor coverage.\245\ The Commission proposed rules address these 
and other points raised by commenters.
---------------------------------------------------------------------------

    \245\ See ALU Comments at 5 recommending: (1) A minimum cell 
edge data rate of 256 Kbps on the forward link (base to mobile), and 
128 Kbps on the reverse link (mobile to base); (2) a link budget 
supporting 95% (area) coverage reliability corresponding to 90% 
(edge contour reliability; and (3) a median throughput per 
transceiver of 1 Mbps downstream and 600 Kbps upstream over 50% of 
the service area) See also, Stagg Newman Comments, attached White 
Paper ``750 MHz RF Coverage Design for the State of North 
Carolina'', pp 19-20, proposing 1.0-2.0 Mbps forward link and 450-
750 kbps return link (avg.) over 90% of the coverage area and 300 
kbps forward link and 50 kbps reverse link at the cell edge covering 
85% of the population of North Carolina; See also Public Safety 
Spectrum Trust Comments, attachment C ``Shared Wireless Broadband 
Network Technical Analysis'' Table 1-A proposing 1000 kbps forward 
link and 256 kbps reverse link for dense urban and urban 
morphologies, 512 kbps forward link and 128 kbps reverse link for 
suburban and rural morphologies, and 128 kbps forward link and 64 
kbps reverse link for highways; See also, U.S. Cellular ex parte of 
August 29, 2008, proposing to revise these values to 256 kbps in 
both directions in urban environments, 128 kbps in both directions 
for suburban and rural areas, and 64 kbps in both directions on 
highways, under conditions of 70% loading.
---------------------------------------------------------------------------

    121. The Commission proposes that the shared wireless broadband 
network typically provide data speeds of at least 1 Mbps in the 
downlink direction and 600 Kbps in the uplink direction. Irrespective 
of this requirement, the D Block licensee(s) must provide public safety 
users with data speeds that are at least as fast as the best data 
speeds provided to commercial users of the shared wireless broadband 
network. The Commission also proposes that, at the edge of coverage, 
the shared wireless broadband network shall provide for data rates of a 
minimum of 256 kbps directions in urban environments, 128 kbps for 
suburban and rural areas, and 64 kbps on highways, all under 70 percent 
loading conditions, in both the downlink and uplink directions as 
recommended by U.S. Cellular. The Commission recognizes that these data 
speeds may appear to be relatively slow, but note that they generally 
ensure that basic service is available even at the edge of coverage 
under relatively high traffic conditions. For purposes of this rule, 
the Commission proposes that dense urban will encompass areas where the 
population per square mile is 15,000 people or greater; urban 2,500-
14,999, suburban 200-2499, and rural 0-199, as suggested by the 
PSST.\246\ The Commission also proposes these data speeds serve only as 
design objectives. It would not be practical or appropriate to apply 
these data rates as the minimum for any given device at any particular 
time or location. The Commission appreciates the need to address 
planning factors for indoor coverage. The Commission is proposing 
propagation factors in the rules that are to be taken into account in 
designing the shared wireless broadband network relative to indoor 
coverage for VoIP service. The Commission finds that it is appropriate 
to focus only on VoIP because these types of communications occur in 
real time. Nonetheless, the Commission find that designing the system 
for indoor VoIP coverage may well serve to ensure the availability of 
data service in buildings as well. The Commission also proposes to 
address service to vehicles moving at speeds of up to 100 mph by 
planning for coverage based on a 1.5 Watt EIRP mobile vehicle mounted 
radios.\247\ The Commission invites comment on these specific proposals
---------------------------------------------------------------------------

    \246\ Public Safety Spectrum Trust Comments, Attachment C 
``Shared Wireless Broadband Network Technical Analysis'' Table 1-B.
    \247\ See Stagg Newman Comments, attached White Paper ``750 MHz 
RF Coverage Design for the State of North Carolina'', pp 19-20, 
proposing an assumed 1.5 Watt EIRP vehicle mounted radio for public 
safety vehicles.
---------------------------------------------------------------------------

    122. The Commission is not proposing any specific requirements 
relative to overall capacity of the shared wireless broadband 
network.\248\ The overall capacity of a network is very difficult to 
define because it can depend on many variables such as the level of use 
at particular locations, how use varies over time, the types of 
applications that are used, etc. Moreover, it is not feasible to 
establish rules that would address the various capacity requirements 
throughout the nation. For example, the capacity required in a dense 
urban area where public safety has implemented a wide variety of 
broadband applications would be much greater than in a rural area where 
only minimal broadband applications might be used. The Commission also 
notes that none of the commenters specifically addressed overall 
capacity of the wireless broadband network other than in the context of 
specifications for data speeds or to suggest that capacity should be 
negotiated under the Network Sharing Agreement The Commission agree 
that the capacity of the shared wireless broadband network would be 
best addressed through negotiation under the Network Sharing Agreement. 
The Commission does not anticipate that this will create any 
significant uncertainty for prospective D Block licensee(s) because the 
Commission

[[Page 57775]]

expects the capacity requirements will generally follow the patterns of 
commercial networks. The Commission solicits comment on this analysis. 
The Commission is also proposing to require that the Network Sharing 
Agreement include a process for demand forecasting and that the D Block 
licensee(s) deliver to the Public Safety Broadband Licensee monthly 
capacity utilization reports as discussed below.
---------------------------------------------------------------------------

    \248\ Elsewhere in this Third FNPRM, however, the Commission 
requires the D Block licensee(s) to ensure public safety users' 
access to 10 megahertz of spectrum at all times and 12 to 14 
megahertz of spectrum in the case of emergencies. See supra 
discussion of Spectrum Use Issues.
---------------------------------------------------------------------------

    123. The Commission also proposes a number of requirements to 
ensure quality of service for public safety. The Commission notes that 
the Department of Homeland Security is working on developing wireless 
priority service for public safety communications. While the Commission 
encourages the further development and implementation of wireless 
priority service for public safety, the Commission will not require 
implementation before appropriate standards are developed and 
appropriate hardware and software is available. As discussed elsewhere, 
the Commission proposes to require the Public Safety Broadband Licensee 
to establish access priority and service levels, and authenticate and 
authorize public safety users. The Public Safety Broadband Licensee may 
accomplish this under the Network Sharing Agreement by establishing its 
own system that would accomplish these functions or defining parameters 
that are compatible with commercial technology and can be easily 
implemented by the D Block licensee(s). This function must be capable 
of rapid updates to meet public safety's needs. The Commission asks for 
commenters' views on these proposals.
    124. The Commission notes that U.S. Cellular proposed a number of 
amendments to the PSST's proposed technical requirements whereby the 
Public Safety Broadband Licensee would establish a system that would be 
integrated with the shared wireless broadband network to provide a 
nationwide set of public safety applications, automatically 
authenticate public safety users, and assign the required priority or 
quality of service to public safety communications.\249\ The 
implication of this proposal is that it would serve to ensure overall 
quality of service. It is not clear precisely how this proposal might 
be implemented. The Commission invites comment on U.S. Cellular's 
proposal and whether it is viable for both public safety and the 
prospective D Block licensee(s). The Commission also invites comment on 
potential costs of this approach and how it might be funded.
---------------------------------------------------------------------------

    \249\ U.S. Cellular ex parte of August 29, 2008, proposing 
various amendments to the PSST proposed technical requirements.
---------------------------------------------------------------------------

    125. Security and Encryption. The Commission tentatively concludes 
that the Commission should require the shared broadband network to 
maintain security and encryption features consistent with commercial 
best practices and with capabilities described in the Technical 
Appendix and the Second Report and Order.\250\ The Commission 
recognizes that a number of commenters propose more specific 
requirements. The Wireless Rehabilitation Engineering Research Center 
for Wireless Technologies, for example, recommends the use of open 
access networks with built-in default encryption, to reduce potential 
security risks.\251\ Cook Consulting recommends using ``whitelisting'' 
protocol or encryption to protect the network.\252\ Region 33 states 
that the network should have the same stringent security and encryption 
requirements as existing and future state and Federal databases.\253\ 
The PSST and NPSTC propose a set of detailed security 
requirements.\254\ Other parties, however, argue that the Commission 
should maintain a more flexible approach. Leap Wireless states there 
should be no security requirements beyond what's required for 
nationwide commercial CMRS networks.\255\ Ericsson suggests that 
security measures beyond those already provided by commercial networks 
should be negotiated between the D Block licensee and the PSBL and 
detailed in the NSA.\256\ Sprint Nextel states that network security 
and encryption should be ``consistent with state-of the-art 
technologies.'' \257\ In view of the divergence of opinions regarding 
the need for more specific security and encryption requirements, and on 
the appropriate requirements to adopt, the Commission tentatively 
concludes that the public interest would be better served by 
maintaining flexibility similar to what the Commission adopted in the 
Second Report and Order. Specifically the Commission proposes to 
require the D Block licensee(s) to provide security and encryption 
consistent with commercial best practices. Further, the Commission 
proposes to require that the D Block licensee(s) shall: (1) Comply with 
U.S. Federal government standards, guidelines and models that are 
commercial best practices for wireless broadband networks; (2) 
implement controls to ensure that public safety priority and secure 
network access are limited to authorized public safety users and 
devices, and utilize an open standard protocol for authentication; and 
(3) allow for public safety network authentication, authorization, 
automatic logoff, transmission secrecy and integrity, audit control 
capabilities, and other unique attributes.
---------------------------------------------------------------------------

    \250\ See Second FNPRM, 23 FCC Rcd at 8131; Second Report and 
Order, 22 FCC Rcd at 15434 para. 405.
    \251\ Wireless RERC Comments at 15.
    \252\ Peter G. Cook Consultancy, Inc., Comments at 7.
    \253\ Region 33 Comments at 10.
    \254\ PSST Comments Attachment C, at 8; NPSTC Comments at 55.
    \255\ Leap Wireless Comments at 12.
    \256\ Ericsson Comments at 22-23.
    \257\ Comments of Sprint Nextel Corporation at 11.
---------------------------------------------------------------------------

    126. Power Limits/Power Flux Density Limits/Related Notification 
and Coordination Requirements. In the Second FNPRM, the Commission 
addressed the discrepancy between the text of the Second Report and 
Order, and the applicable rules of the Second Report and Order. The 
text indicated that the Commission would not adopt any power flux 
density (PFD) limit requirement in the public safety broadband segment, 
based on the limited record received on this issue.\258\ However, the 
applicable rules require the Public Safety Broadband Licensee to meet a 
PFD limit when operating base stations at power levels above 1 kW 
ERP.\259\ In light of this discrepancy, the Commission sought comment 
on whether to retain this PFD requirement for the public safety 
broadband spectrum.\260\ The Commission also noted that Verizon 
Wireless filed a petition for reconsideration of the First Report and 
Order with regard to certain of the notification and coordination 
obligations placed on commercial 700 MHz licensees.\261\ In light of 
this petition, the Commission sought comment on whether to apply any or 
all of Verizon's proposed rule changes to the public safety broadband 
spectrum.
---------------------------------------------------------------------------

    \258\ See id., 22 FCC Rcd at 15417 para. 358.
    \259\ See 47 CFR 90.542(a)(5), (b).
    \260\ This requirement had initially been imposed on Upper 700 
MHz C and D Block licensees to protect public safety narrowband 
licensees from interference.
    \261\ Petition for Reconsideration of Verizon Wireless, WT 
Docket No. 06-150 (filed June 14, 2007) (Verizon Petition).
---------------------------------------------------------------------------

    127. NPSTC supports retaining the PFD requirement, stating that 
``the PFD requirement should be retained, as it is there to provide an 
environmental baseline for which systems can be designed in order to 
manage the coexistence of various types of systems * * * additionally, 
[a]ll of the notifications should also be retained without any 
redefinition (e.g. the 1 kW/MHz proposed by Verizon), as these 
notifications serve as a proactive

[[Page 57776]]

means to coordinate operations such that interference can be avoided 
before it happens.'' \262\ CEA suggests that the Commission impose the 
same out of band emission (OOBE) limit for the D Block that applies to 
the C Block.'' \263\
---------------------------------------------------------------------------

    \262\ NPSTC Comments at 46-47.
    \263\ Comments of Consumer Equipment Association at 6.
---------------------------------------------------------------------------

    128. Under existing rules, Upper 700 MHz Band commercial licensees 
(i.e., C and D Block licensees), if operating base stations at power 
levels greater than 1 kW ERP, must meet a PFD limit of 3 mW/m\2\ on the 
ground within 1 km of each base station. They must also notify all 
public safety licensees authorized within 75 km of the base station and 
all 700 MHz public safety regional planning committees with 
jurisdiction within 75 km of the station of their intention to operate 
the base station at a power level greater than 1 kW ERP. Similarly 
under the Commission's rules, the Public Safety Broadband Licensee must 
satisfy this PFD requirement when operating a base station at a power 
level greater than 1 kW ERP.\264\ Verizon, in its petition, seeks 
various changes to the Commission PFD and notification requirements for 
commercial 700 MHz licensees, asking inter alia, that the trigger for 
such requirements be changed from 1 kW ERP to 1 kW/MHz ERP. NPSTC, 
which did not file comments in response to the Verizon petition, 
appears to request that the Commission retain the current 1 kW ERP PFD/
notification trigger for C, D, and Public Safety Broadband licensees.
---------------------------------------------------------------------------

    \264\ The Commission do not, however, require the PSBB licensee 
to notify other 700 MHz licensees of its intention to operate at a 
power level greater than 1 kW ERP.
---------------------------------------------------------------------------

    129. The Upper 700 MHz band plan places the public safety 
narrowband channels (at 769-775 MHz) in between the Public Safety 
Broadband spectrum (at 763-768 MHz) and the upper C block (at 776-787 
MHz). Thus, any decision to modify the PFD trigger for either the 
Public Safety Broadband spectrum or the upper C block could have a 
potential impact on public safety narrowband channel operations. 
Therefore, rather than deciding, in this proceeding, on the appropriate 
PFD/notification trigger for the Public Safety Broadband spectrum, the 
Commission shall defer this decision to the upcoming proceeding 
addressing the Verizon petition, where the Commission will take a 
comprehensive look at the potential consequences for the public safety 
narrowband channels of modifying the trigger for the Public Safety 
Broadband Licensee and the C block licensee. NPSTC's comments in the 
instant proceeding shall be incorporated into the proceeding addressing 
the Verizon petition. The Commission also invites comments from other 
parties on this issue, and any such comments will be incorporated into 
that proceeding as well.
    130. With regard to CEA's suggestion that the Commission impose the 
same out-of-band emission (OOBE) limit for both the C and D Blocks, 
currently the D Block licensee is required to provide enhanced OOBE 
protection \265\ to only the public safety narrowband channels, while 
the C block licensee is required to provide such protection to both the 
public safety narrowband channels and the Public Safety Broadband 
spectrum. The Commission does not require the D Block licensee to 
provide this extra OOBE protection to the Public Safety Broadband 
spectrum due to the special relationship that exists between the D 
Block and Public Safety Broadband Licensee. If the Commission decides 
to maintain that relationship, the Commission tentatively concludes 
that the Commission should continue to require the D Block licensee to 
provide extra OOBE protection only to the public safety narrowband 
channels. The Commission tentatively concludes as well that if the 
Commission does not maintain the existing relationship between the D 
Block and Public Safety Broadband Licensee, the Commission should 
require the D Block licensee to provide extra OOBE protection to both 
the Public Safety Broadband spectrum and the public safety narrowband 
channels--and thus require C and D Block licensees to meet the same 
OOBE limits in protecting public safety operations, as CEA suggests.
---------------------------------------------------------------------------

    \265\ The standard OOBE limit, which applies to CMRS operations 
in various bands, requires licensees to attenuate their emissions by 
a factor not less than 43 + 10log P dB. The enhanced OOBE protection 
referred to herein requires Upper 700 MHz commercial licensees to 
attenuate their base station emissions by a factor not less than 76 
+ 10 log (P) dB and to attenuate mobile and portable station 
emissions by a factor not less than 65 + 10 log (P) dB.
---------------------------------------------------------------------------

    131. Satellite-capable Handset Requirement. The Commission proposes 
to continue requiring that the D Block licensee make available to 
public safety users at least one handset that includes an integrated 
satellite solution, by which the Commission means that the handset must 
be capable of operating on both the 700 MHz public safety broadband 
network and on the satellite frequency bands and/or systems of 
satellite service providers with which the Public Safety Broadband 
Licensee has contracted for satellite service.\266\ In addition, as 
under existing rules, the Commission proposes not to establish a 
specific deadline, but to leave the terms and timeframe for the 
availability of the handset to be specified in the NSA. The Commission 
proposes to clarify, however, that in the event the Commission license 
the D Block on a regional basis, the Commission do not preclude the 
regional licensees from relying on the same handset model to meet this 
requirement. In addition, because it is not clear that current or 
developing technology can provide for handoffs between a terrestrial 
network and a satellite service, however, the Commission proposes to 
clarify that handsets need not provide for seamless operation between 
the terrestrial and satellite modes to meet the Commission requirement. 
The Commission also tentatively declines to adopt MSV's proposal that 
all public safety handsets be required to be satellite-enabled. As 
before, the Commission finds that the Public Safety Broadband Licensee, 
in consultation with the D Block licensee(s), will be in the best 
position to determine the extent to which public safety equipment 
should have integrated satellite capability. The Commission invites 
further comment, however, on whether it should require more than one 
handset with an integrated satellite solution and if so, what number or 
percentage of devices should have that feature.
---------------------------------------------------------------------------

    \266\ See Second Report and Order, 22 FCC Rcd at 15452 para. 
464.
---------------------------------------------------------------------------

3. Performance Requirements, License Term, and Renewal
    132. Background. In the Second Report and Order, the Commission 
decided that the D Block license would be issued for a period of ten 
years and imposed unique performance requirements for the D Block 
license in connection with the construction of the shared wireless 
broadband network. Specifically, the Commission required the D Block 
licensee to provide signal coverage and offer service to at least 75 
percent of the population of the nationwide D Block license area by the 
end of the fourth year, 95 percent by the end of the seventh year, and 
99.3 percent by the end of the tenth year.\267\ The Commission further 
specified that ``the network and signal levels employed to meet these 
benchmarks be adequate for public safety use * * * and that the 
services made available be appropriate for public safety entities in 
those areas.'' \268\
---------------------------------------------------------------------------

    \267\ Second Report and Order, 22 FCC Rcd at 15445 para. 437.
    \268\ Id. at 15446 para 440.
---------------------------------------------------------------------------

    133. Certain other requirements were imposed to further ensure 
coverage of highways and certain other areas such

[[Page 57777]]

as incorporated communities with a population in excess of 3,000.\269\ 
The Commission concluded that these build-out requirements ``will 
ensure that public safety needs are met.'' \270\ The Commission also 
required, however, that, ``to the extent that the D Block licensee 
chooses to provide commercial services to population levels in excess 
of the relevant benchmarks, the D Block licensee will be required to 
make the same level of service available to public safety entities.'' 
\271\
---------------------------------------------------------------------------

    \269\ See id. at 15445 para. 438-15446 para. 440.
    \270\ Id. at 15445 para. 437.
    \271\ Id. at 15446 para. 440.
---------------------------------------------------------------------------

    134. In addition to establishing performance requirements and a 
ten-year license term, the Commission also determined that the 
performance requirements and license period would start on February 17, 
2009. The Commission determined that this would be the initial 
authorization start date because it is the DTV transition date.\272\ 
The Commission also established that at the end of the ten-year term 
the D Block licensee would be allowed to apply for license renewal and 
that renewal would be subject to the licensee's success in meeting the 
material requirements set forth in the NSA as well as all other license 
conditions, including meeting the performance benchmark 
requirements.\273\ Because the initial NSA term expired at the same 
time, the Commission decided that the D Block licensee must also file a 
renewed or modified NSA for Commission approval at the time of its 
license renewal application.\274\ Given these detailed license renewal 
requirements, the Commission declined to impose a separate substantial 
service showing in the Second Report and Order.
---------------------------------------------------------------------------

    \272\ Id. at 15450 para. 457.
    \273\ Id. at 15450 para. 458.
    \274\ Id.
---------------------------------------------------------------------------

    135. In the Second FNPRM, the Commission sought comment on whether 
the Commission should revise the performance requirements that the 
Commission imposed on the D Block licensee with regard to building out 
the nationwide, interoperable broadband network and, if so, how those 
requirements should be revised.\275\ Specifically, the Commission 
sought comment on whether the Commission should retain the existing 
end-of-term population benchmark of 99.3 percent or whether the 
Commission should adopt a lower population benchmark that is equal to 
or more aggressive than the 75 percent benchmark that is applicable to 
the 22 megahertz C Block that is licensed on REAG basis.\276\ The 
Commission noted that each of the top four nationwide carriers is 
currently providing coverage to approximately 90 percent or more of the 
U.S. population.\277\ Given that existing commercial wireless 
infrastructure already covers approximately 90 percent of the 
population, the Commission sought comment on whether it is reasonable 
to expect that the D Block licensee would be able to meet at least a 90 
percent of the population coverage requirement or more, or whether some 
other coverage requirement is appropriate.
---------------------------------------------------------------------------

    \275\ Second FNPRM, 23 FCC Rcd at 8075 para. 74, 8080-86 paras. 
88-105.
    \276\ Id. at 8081 para 91.
    \277\ Id. (citing USB Warburg Investment Research, US Wireless 
411, at 17 (Mar. 18, 2008).
---------------------------------------------------------------------------

    136. The Commission observed that for the 22 megahertz C Block the 
Commission required licensees to provide signal coverage and offer 
service to at least 40 percent of the population in each EA of the REAG 
license area within four years and to at least 75 percent of the 
population in each EA of the REAG license area by the end of the ten-
year license term.\278\ Given that the licenses in the C Block were 
successfully auctioned in Auction 73, and that at least one bidder has 
put together a nearly nationwide geographic footprint with these 
licenses, the Commission assumed that the D Block licensee should, at 
the very minimum, be able to meet these benchmarks with respect to its 
nationwide license. The Commission sought comment on that assumption.
---------------------------------------------------------------------------

    \278\ Id. at 8082 para. 94.
---------------------------------------------------------------------------

    137. In addition, the Commission invited comment on whether the 
Commission should extend the license term for the D Block license, and 
possibly the Public Safety Broadband License, if the Commission 
determined to provide for construction benchmarks that extended past 
the initial license term that the Commission established for the D 
Block license.\279\ The Commission asked whether doing so would make it 
easier for the D Block licensee to meet the performance requirements 
that the Commission adopts. Specifically, if the Commission were to 
adopt a 15-year license term, the Commission sought comment on whether 
this would increase the commercial viability of the required network 
while still meeting public safety needs. If the Commission were to 
adopt such a modification, the Commission asked whether the interim 
build-out benchmarks should be modified. For example, the Commission 
stated that the Commission could require the D Block licensee to 
provide signal coverage and offer service to at least 50 percent of the 
population of the nationwide license area by the end of the fifth year, 
80 percent of the population of the nationwide license area by the end 
of the tenth year, and 95 percent of the population of the nationwide 
license area by the end of the fifteenth year. The Commission also 
noted that the NSA was to have a term not to exceed 10 years from 
February 17, 2009, to coincide with the term of the D Block license, 
and the Commission asked whether the Commission should extend the term 
of the NSA to be co-extensive with any extended term the Commission may 
adopt for the D Block.\280\
---------------------------------------------------------------------------

    \279\ Id. at 8081 para. 90, 8083 paras. 96, 98.
    \280\ Id. at 8083 para. 98.
---------------------------------------------------------------------------

    138. The Commission sought further comment on whether the 
Commission should revise the Commission's rules to permit the D Block 
licensee to use Mobile Satellite Service to help it meet its build-out 
benchmarks.\281\ The Commission noted that satellite services can 
enable public safety users to communicate in rural and remote areas 
that terrestrial services do not reach or in areas where terrestrial 
communications networks have been damaged or destroyed by wide-scale 
natural or man-made disasters. In light of these observations, the 
Commission asked if the Commission should permit the D Block licensee 
to utilize Mobile Satellite Service as a way to meet, in part, its 
build-out obligations.\282\
---------------------------------------------------------------------------

    \281\ Id. at 8083-84 para. 99.
    \282\ Id. at 8084 para. 100.
---------------------------------------------------------------------------

    139. Parties who filed comments in response to these issues that 
the Commission raised in the Second FNPRM, include nationwide service 
providers,\283\ regional service providers,\284\ small service 
providers,\285\ consumer electronics manufacturers,\286\ commercial 
entities,\287\ entities representing rural interests,\288\ entities 
representing public safety

[[Page 57778]]

organizations,\289\ and citizens.\290\ In addition, several local 
governments filed comments.\291\ Most contend that the current final 
benchmark requirement--that the network cover at least 99.3 percent of 
the population nationwide within 10 years--is unrealistic. For 
instance, AT&T states that the requirement ``to build out the public/
private network to cover 99.3 percent of the population nationwide 
within ten years'' ``may have been overly aggressive.'' \292\ Likewise, 
Interisle believes that the ``99.3% benchmark for year 10 coverage of 
the population is unrealistically high.'' \293\
---------------------------------------------------------------------------

    \283\ AT&T Comments at 14; Sprint Nextel Comments at 2, 14-15; 
US Cellular Comments 21.
    \284\ Leap Comments at 13; NTCH Comments at 9; SouthernLINC 
Reply Comments at 7.
    \285\ ACT Comments at 2; Big Bend Comments at 2; CTC Comments at 
2; Kennebec Comments at 2; PVTC Comments at 2; Ponderosa Comments at 
2; Smithville Comments at 2; Spring Grove Comments at 2; Van Buren 
Comments at 2; Wiggins Comments at 2.
    \286\ CEA Comments at 3; Ericsson Comments at 26; Motorola 
Comments at 13; Qualcomm Comments at 11; Motorola Reply Comments at 
4.
    \287\ ComCentric Comments at 4; Coverage Co. Comments at 6; 
GEOCommand Comments at 9; Google Comments at 12; Interisle Comments 
at 6; Rivada Comments at 2; Space Data Reply Comments at 2; Televate 
Comments at 4; Tyco Comments at 5; Wirefree Comments at 15.
    \288\ Council Tree Comments at 14.
    \289\ AASHTO Comments at 11; APCO Comments at 14; NATOA Comments 
at 8; NENA Comments at 2; NPSTC Comments at 12; Region 6 Comments at 
2; Region 20 Reply Comments at 14; Region 33 Comments at 18; PSST 
Comments at 34.
    \290\ Bazelon Comments at 14; Newman Comments at 4; Pela 
Comments at 5.
    \291\ ADA County Sheriff's Office Comments at 2; Philadelphia 
Comments at 2.
    \292\ AT&T Comments at 14.
    \293\ Interisle Comments at 6.
---------------------------------------------------------------------------

    140. A range of final benchmarks to levels less than 99.3 percent 
are proposed in the comments of many commercial commenters. For 
example, some of these commenters propose a final benchmark of 95 
percent population coverage.\294\ Northrop Grumman asks ``the 
Commission to adopt a coverage benchmark of 95%,'' \295\ which it 
considers to be ``a much more reasonable level for an especially cost-
intensive build-out of new network service.'' \296\ Televate believes 
that the D Block licensee should ``serve at least 95 [percent] of the 
population.'' \297\ Space Data, however, argues that there is no need 
to relax the performance requirements that apply to the 700 MHz D Block 
spectrum.\298\
---------------------------------------------------------------------------

    \294\ See Sprint Nextel Comments (advocating 95 percent with a 
bidding credit if the bidder commits to greater); Northrop Grumman 
Comments at 5. See also ACT Comments at 2.
    \295\ Northrop Grumman Comments at 5; Northrop Grumman Reply 
Comments at 1.
    \296\ Northrop Grumman Comments at 5.
    \297\ Televate Comments at 9.
    \298\ Space Data Reply Comments at 2.
---------------------------------------------------------------------------

    141. Leap recommends that the ``performance requirements relating 
to the construction of the network should be set at the same level as 
was set for the C Block in Auction 73.'' \299\ In its reply comments, 
Council Tree ``endorses'' Leap's proposal that the ``network 
construction requirements for the D Block license be modified to match 
those that applied to the Upper 700 MHz Band C Block licenses awarded 
in Auction 73.'' \300\ SouthernLINC encourages the Commission to reject 
those arguments that call for network construction based on 
``commercial-level best practices for reliability'' or C Block-type 
coverage requirements of only 75% of the population.'' \301\ If public 
safety agencies only need commercial-grade wireless coverage, 
SouthernLINC states that they should simply subscribe to existing 
commercial offerings. A number of other parties simply recommend that 
the Commission proposes more realistic benchmarks without offering a 
specific percent coverage of the population.
---------------------------------------------------------------------------

    \299\ Leap Comments at 13.
    \300\ Council Tree Reply Comments at 14.
    \301\ SouthernLINC Reply Comments at 7.
---------------------------------------------------------------------------

    142. A few public safety commenters support 95 percent or lower 
population coverage, including the National Regional Planning Council 
(NRPC).\302\ NRPC reasons that ``[w]ith commercial wireless operations 
today already covering approximately 90% of the U.S. population base, 
this would be a good starting point with a goal of adequate broadband 
coverage over 95% of the U.S. population within the 10-year license 
term.'' \303\ Region 6, 700 MHz Planning Committee (Region 6), asserts 
that a more ``realistic'' performance requirement ``would be 95% of the 
United States population within all Urban Areas as defined by the 
Federal Department of Homeland Security, while allowing the successful 
bidder to expand that coverage upon execution of Memorandum of 
Understandings with any remaining governmental agencies.'' \304\ In 
addition, Region 33 considers 99.3 percent ``unrealistic'' and supports 
a reduction down to 90 percent, asserting this would be ``more 
attainable and feasible.'' \305\
---------------------------------------------------------------------------

    \302\ NRPC Comments at 4; RPC 6 Comments at 2; RPC 33 Comments 
at 18.
    \303\ NRPC Comments at 4.
    \304\ RPC 6 Comments at 2.
    \305\ RPC 33 Comments at 18.
---------------------------------------------------------------------------

    143. Other national public safety commenters, however, have not 
advocated for a reduction in performance requirements, or for a more 
modest reduction. NATOA does not appear to support any reductions in 
performance requirements. APCO argues for an extension of the deadlines 
of five years, but does not discuss reductions in the final benchmark 
level. PSST and NPSTC argue for a reduction to 98 percent.\306\ NENA 
supports a ``reasonable'' reduction of the 99.3 percent requirement, 
but does not specify to what level.
---------------------------------------------------------------------------

    \306\ 306 PSST Comments at 5; NENA Comments at 2; NPSTC Comments 
at 12.
---------------------------------------------------------------------------

    144. In its en banc testimony, US Cellular states that the 
standards ``for population coverage and reliability should be achieved 
over the license term, and the rules should allow reasonable 
differences in build-out and performance based on the population 
density of the license areas.'' \307\ US Cellular proposes that the 
rules ``specify a range for population coverage, permitting the PSST, 
in consultation with public safety entities and potential bidders, to 
specify the requirements for specific areas as part of the NSA put 
forward pre-auction.'' \308\ US Cellular's example of such a tiered 
structure reflects four tiers of coverage requirements of 86, 90, 94, 
and 98 percent, from lowest to highest population densities, for 
license areas based on NPSPAC regions.\309\
---------------------------------------------------------------------------

    \307\ Testimony of LeRoy T. Carlson, Jr., Chairman, US Cellular, 
FCC En Banc Hearing, Brooklyn, New York, Federal Communications 
Commission, July 30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/carlson.pdf (Carlson Testimony) at 3.
    \308\ Id. at 3-4.
    \309\ Id. at 8. In its comments and reply comments, US Cellular 
suggests that the Commission should require the D Block licensee to 
``provide signal coverage and offer service to at least 50 percent 
of the population of the nationwide license area by the end of the 
fifth year, 80 percent of the population of the nationwide license 
area by the end of the tenth year, and 95 percent of the population 
of the nationwide license area by the end of the fifteenth year.'' 
US Cellular Comments at 21 & n.43, citing Second FNPRM, at para. 95; 
US Cellular Reply Comments at 12.
---------------------------------------------------------------------------

    145. Some commenters argue that keeping the existing 99.3 
percentage population benchmark is acceptable as long as the Commission 
extends the time period to meet this objective. Ericsson does not 
believe that the Commission needs to lower the end-of-license term 
coverage requirement to less than 99.3% of population, if the 
Commission lengthens the D Block license term. Ericsson states that 
extending the D Block license term from ``10 years to 15, 20, or even 
25 years would allow the schedule of build-out milestones to be spread 
across a longer time period.''\310\ Likewise, Council Tree contends 
that, ``[g]iven the uncertainties inherent in the 700 MHz Public/
Private Partnership,'' the D Block license term ``should be extended 
from ten years to twenty years in duration regardless of the 
determinations the Commission makes with respect to its performance 
requirements.'' \311\ Wirefree also ``supports extending the license 
term from 10 to 15 years as a fair trade off for building a shared use 
network for public safety.'' \312\
---------------------------------------------------------------------------

    \310\ Ericsson Comments at 26.
    \311\ Council Tree Comments at 19.
    \312\ Wirefree Comments at 15.
---------------------------------------------------------------------------

    146. Some public safety organizations also support extending the D 
Block license term. PSST suggests that if the Commission keeps the 
existing 99.3 percentage of population benchmark, then the Commission 
should ``extend

[[Page 57779]]

the D Block license term (and the PSBL license term) by five years with 
a corresponding extension of the current construction requirements.'' 
\313\ AASHTO believes that ``reaching 99.3% of the population within 
ten years from the issuance of a license is admirable and perhaps can 
remain as an ultimate goal, but with an increased time span to achieve 
the goal.'' \314\ APCO contends that it is reasonable ``to extend the 
timelines of some of these benchmarks by five years (with a 
corresponding extension of the license term).''\315\ NENA supports a 
reasonable reduction in build-out requirements, ``e.g., reducing the 
99.3% geographic build-out requirement to a 15-year license term'' 
rather than the current 10 year license term.\316\
---------------------------------------------------------------------------

    \313\ PSST Comments at 34.
    \314\ AASHTO Comments at 11.
    \315\ APCO Comments at 30.
    \316\ NENA Comments at 2.
---------------------------------------------------------------------------

    147. Comcentric, Leap, and Ericsson support the notion that the 
Commission should allow the D Block licensee to meet, at least in part, 
its build-out obligation through the use of Mobile Satellite Service. 
For areas without terrestrial network coverage, Leap indicates that the 
Commission could ensure that public safety officials have adequate 
service by permitting the carrier to use other alternatives for 
satisfying coverage requirements (e.g., satellite).\317\ Ericsson 
states that the Commission should allow the D Block licensee to meet 
the interim benchmarks though satellite service, but that the licensee 
should be required to meet the final benchmark only through the use of 
terrestrial broadband facilities.\318\ Comcentric argues that the 
public broadband network should cover ``a minimum of 98% of the 
population with terrestrial links and 100% of the geographic area with 
`in motion' satellite connectivity for rural public safety 
officers.''\319\
---------------------------------------------------------------------------

    \317\ Leap Comments at 13; Leap Reply Comments at 9.
    \318\ Ericsson Comments at 28.
    \319\ Comcentric Comments at 4.
---------------------------------------------------------------------------

    148. Discussion. The Commission tentatively concludes that the 
Commission should modify the population-based performance requirements 
and the length of the license term that the Commission adopted in the 
Second Report and Order for the D Block spectrum in order to make this 
spectrum more commercially viable while at the same time ensuring that 
public safety needs are met. As discussed below, the Commission 
proposes to require the D Block licensee(s) to meet performance 
requirements based on PSRs, regardless of whether the D Block license 
is regional or nationwide. The Commission proposes that a D Block 
licensee must meet specified population coverage benchmarks at the end 
of the fourth, tenth, and fifteenth years of its license term, and that 
it must meet these benchmarks in each PSR over which it is licensed, 
regardless of whether the D Block spectrum is licensed on a regional or 
nationwide basis.
    149. Specifically, the Commission tentatively concludes that the 
licensee(s) of D Block spectrum be required to provide signal coverage 
and offer service to at least 40 percent of the population in each PSR 
by the end of the fourth year, and 75 percent by the end of the tenth 
year. The Commission proposes to adopt a ``tiered'' approach after 15 
years for the final benchmark, applying one of three benchmarks 
depending on the population density of the PSR: (1) For PSRs with a 
population density less than 100 people per square mile, the 
licensee(s) will be required to provide signal coverage and offer 
service to at least 90 percent of the population by the end of the 
fifteenth year; (2) for PSRs with a population density equal to or 
greater than 100 people per square mile and less than 500 people per 
square mile, the licensee(s) will be required to provide signal 
coverage and offer service to at least 94 percent of the population by 
the end of the fifteenth year; and (3) for PSRs with a population 
density equal to or greater than 500 people per square mile, the 
licensee(s) will be required to provide signal coverage and offer 
service to at least 98 percent of the population by the end of the 
fifteenth year.\320\ These revised population coverage requirements 
will have to be met on a PSR basis, and the licensee(s) will have to 
use the most recently available decennial U.S. Census data at the time 
of measurement to meet the requirements. The Commission also 
tentatively concludes to revise the length of the D Block license term 
from 10 to 15 years so that it coincides with the Commission proposed 
end-of-term performance requirements. The Commission also tentatively 
concludes that the Commission will not impose a separate substantial 
service showing for license renewal apart from requiring that a D Block 
licensee meet the requirements set forth in the NSA and the 
Commission's proposed performance requirements, with the possible 
exception of the Gulf of Mexico PSR, as discussed below. The Commission 
seeks comment on these tentative conclusions.
---------------------------------------------------------------------------

    \320\ See Appendix B (listing the minimum coverage requirements 
at the end of fifteen years for each of the regions).
---------------------------------------------------------------------------

    150. The Commission's proposal would thus modify both the final and 
interim D Block performance requirements under the existing rules. Most 
significantly, the Commission proposes to reduce the final performance 
benchmark from 99.3 percent to the three tiers discussed above and 
extend the period for achieving the appropriate benchmark from 10 to 15 
years. The Commission tentatively concludes that adoption of the 
interim and end-of-term performance requirements will increase 
opportunities for participation by a larger pool of bidders, \321\ and 
local and regional build-out will ensure that deployment is responsive 
to the needs of local public safety groups.\322\ The Commission also 
tentatively concludes that a final benchmark of 99.3 percent of 
population would likely not be commercially feasible, but that the 
benchmarks under the Commission's tiered proposal are achievable. For 
example, the record indicates that 95 percent coverage is 
achievable,\323\ and that reducing the final benchmark from 99.3 
percent for a nationwide license will result in significant savings in 
capital and operational expenses. Space Data estimates that reducing 
the 10-year coverage requirement from 99.3 percent to 95 percent 
population nationwide will result in a capital expense savings of 
$1.0565 billion and an operating expense savings of $2.280 
billion.\324\ MSV estimates that reducing the 10-year coverage 
requirement from 99.3 percent to 95 percent population nationwide would 
result in a capital expense savings of $4.44 billion and an operating 
expense savings of $7.056 billion.\325\ Thus, based on the record, the 
Commission tentatively concludes that the Commission's proposed new 
benchmarks along with extending the final benchmark to fifteen years, 
will make building out a network more viable economically than under 
the current benchmarks while also ensuring that public safety needs are 
met. The

[[Page 57780]]

Commission notes that while most of the licensees will meet a 
population benchmark of either 90 or 94 percent in year fifteen, the 
Commission's proposal for the third tier will require at least 98 
percent coverage with a population density equal to or greater than 500 
people per square mile. However, according to U.S. Cellular's proposal, 
this 98 percent requirement would apply to only six percent of the 
total number of NPSPAC regions, and licensees that would have to meet 
this requirement may be able to build on existing infrastructure thus 
making commercial opportunities more attractive.\326\ The Commission 
seeks comment on these conclusions.
---------------------------------------------------------------------------

    \321\ See Carlson Testimony at 2-3.
    \322\ See AT&T Comments at 25.
    \323\ See, e.g., ACT Comments at 2; NNRPC Comments at 4; 
Northrop Grumman Comments at 5; Region 6 Comments at 2; Region 33 
Comments at 18; Sprint Nextel Comments at 2; US Cellular Comments at 
5.
    \324\ See Space Data Comments at Exhibit A.
    \325\ See MSV Comments at 44. See also Testimony of Lawrence R. 
Krevor, Sprint-Nextel Corp., Public Hearing on Public Safety 
Interoperable Communications--The 700 MHz Band Proceeding, Federal 
Communications Commission, July 30, 2008, http://www.fcc.gov/realaudio/presentations/2008/073008/krevor.pdf, at 2 (increasing 
coverage from 95 percent to 99.3 percent would increase costs by 
more than $6 billion).
    \326\ See Carlson Testimony at 2, 8 & n.5.
---------------------------------------------------------------------------

    151. The Commission tentatively concludes that the three tiers of 
population benchmarks remain an aggressive requirement, given that 
existing commercial infrastructure currently covers only approximately 
90 percent of the nation's population,\327\ and that the highest level 
of population coverage required of any other commercial 700 MHz 
licensee is 75 percent.\328\ Therefore, the Commission also tentatively 
concludes that the Commission should extend the time provided to the D 
Block licensee to meet its end-of-term build-out requirement from ten 
to fifteen years.\329\ Giving the D Block licensee five additional 
years to meet the final benchmark will provide the licensee with 
additional time to raise capital and construct its wireless network. It 
will also give the D Block licensee more flexibility and the ability to 
lower its construction costs.\330\ As a result, the Commission's 
proposal to give the D Block licensee five additional years to build 
out its network should help to stimulate commercial interest in the D 
Block spectrum. The Commission also notes that a fifteen year period to 
accomplish the final performance requirement also receives support from 
public safety commenters.\331\ For these reasons, the Commission 
tentatively concludes that the proposed final benchmark which uses a 
three-tiered requirement at 15 years, as discussed above, provides the 
most aggressive coverage requirement that will still provide an 
adequate level of commercial feasibility, and the Commission seeks 
comment on this tentative conclusion.
---------------------------------------------------------------------------

    \327\ See NPRC Comments at 4; Sprint Nextel Comments at 2; see 
also Second FNPRM, 23 FCC Rcd at 8084 para. 91 (citing USB Warburg 
Investment Research, US Wireless 411, at 17 (Mar. 18, 2008); MSV 
Comments at 8 (noting that ``[t]he top four national wireless 
carriers cover on average only 92.7% of the US population'').
    \328\ Second Report and Order, 22 FCC Rcd at 15351 para. 162 
(discussing performance requirements for REAG licenses, i.e., C 
Block).
    \329\ Both public safety and commercial entities support 
expanding the time period that the D Block licensee has to meet the 
final performance requirement. See, e.g., AASHTO Comments at 11; 
APCO Comments at 30; Council Tree Comments at 19; Ericsson Comments 
at 26; NENA Comments at 2; PSST Comments at 34; Wirefree Comments at 
15.
    \330\ Ericcson Comments at 26.
    \331\ See, e.g., PSST Comments at 34.
---------------------------------------------------------------------------

    152. The Commission's proposal also imposes new interim coverage 
requirements. Specifically, instead of the current interim requirements 
of 75 percent at four years and 95 percent at seven years, the 
Commission proposes to require 40 percent at four years and 75 percent 
at ten years. These interim requirements are identical to the 
population coverage levels required of 700 MHz C Block REAG licensees 
at the 4 year and 10 year periods. The fact that all of the C Block 
licenses were successfully auctioned supports the conclusion that these 
interim requirements are commercially viable.\332\ Thus, the Commission 
tentatively concludes that the interim coverage benchmarks for the D 
Block of 40 percent of the population in four years and 75 percent in 
ten years are commercially viable and will lead to a successful auction 
of the D Block spectrum. Setting the first benchmark at four years 
should also provide an adequate period for the development of new 
advanced technologies so that these technologies can be incorporated 
into the network implemented by the D Block licensee. At the same time, 
the Commission proposed interim benchmarks will still help to ensure 
that the D Block licensee will begin providing service to a significant 
portion of the nation's public safety community well in advance of the 
end of its license term. Thus, these proposed benchmarks for the D 
Block licensee are designed to balance the need to expedite the 
deployment of an interoperable, broadband public safety network with an 
appropriate consideration of commercial viability and the need to allow 
sufficient time for new and innovative wireless broadband technologies 
to develop. By proposing the Commission three-tiered benchmark with 
coverage levels at 90 percent or higher, the Commission addresses the 
special coverage needs of public safety yet ensure this is commercially 
achievable by affording the D Block Licensee an additional five years 
to achieve this requirement. Accordingly, the Commission tentatively 
concludes that the Commission proposed interim benchmarks are 
consistent with the Commission goal of establishing a national 
interoperable public safety network that will provide state-of-the-art 
service to the Public Safety Broadband Licensee. The Commission seeks 
comment on the Commission tentative conclusion to establish the interim 
coverage requirements for the D Block as 40 percent of the population 
in four years and 75 percent in ten years, for each of the 58 PSRs.
---------------------------------------------------------------------------

    \332\ See Leap Comments at 13; Council Tree Reply Comments at 
14.
---------------------------------------------------------------------------

    153. The Commission tentatively concludes that the D Block licensee 
should not be permitted to satisfy its performance benchmarks through 
the provision of non-terrestrial services such as MSS. The Commission 
finds that MSS and other non-terrestrial technologies cannot currently 
provide broadband capabilities comparable to those of a broadband 
terrestrial network. Further, given the significant reduction in 
geographic area that will need to be covered under the Commission's 
proposed population based benchmarks and the additional time the 
Commission is proposing to provide the D Block licensee to build out, 
the Commission tentatively concludes that it is reasonable to expect 
the D Block licensee to meet the Commission's proposed benchmarks by 
building out a terrestrial wireless network. Under the Commission's 
proposal, the D Block licensee will have fifteen years to build out a 
terrestrial wireless network to meet the final performance benchmarks. 
Therefore, requiring the D Block licensee to build out a terrestrial 
wireless network rather than relying on Mobile Satellite Service or 
other such technologies should not undercut the Commission goal of 
making this spectrum more attractive to commercial development and 
should help ensure the development of a robust public safety network. 
The Commission seeks comment on these tentative conclusions.
    154. To meet the Commission's proposed performance requirements, 
the Commission tentatively concludes that the Commission will require 
the D Block licensee to use the most recently available U.S. Census 
Data and that the licensee meet the Commission's performance 
requirements on a PSR basis.\333\ The Commission recognizes that 
commercial providers typically focus exclusively on building out high 
population areas and that first responders have needs in smaller towns 
and rural areas. However, by proposing

[[Page 57781]]

to require that the performance benchmarks be calculated on a PSR basis 
even in case of a nationwide license, the Commission will ensure that 
areas with smaller populations and rural areas receive coverage. 
Accordingly, to meet the benchmarks, the Commission tentatively 
concludes that the D Block licensee will be required to provide signal 
coverage and offer service to at least 40 percent of the population in 
each PSR license area within four years, 75 percent of the population 
in each PSR license area within ten years, and an appropriate percent 
of the population in each PSR license area within 15 years.\334\ The 
Commission also proposes to clarify that, to count toward the 
satisfaction of the Commission's performance requirements, any build-
out must provide service that meets the signal levels and other 
technical requirements that the Commission proposes in this Third 
FNPRM. Further, to the extent that the D Block licensee chooses to 
provide terrestrial commercial services to population levels in excess 
of the relevant benchmarks, the Commission proposes that the D Block 
licensee be required to make the same level of coverage and service 
available to public safety entities. The Commission seeks comment on 
these proposals.
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    \333\ The Commission notes that, by the ``most recently 
available U.S. Census data,'' the Commission means only the most 
recent decennial update to the U.S. Census, currently the 2000 U.S. 
Census Data, and not any estimates or revisions that have occurred 
between the official decennial updates.
    \334\ See Appendix B.
---------------------------------------------------------------------------

    155. In order to promote an additional degree of coverage in rural 
areas, the Commission proposes to continue, with some modifications, 
requiring that the D Block licensee extend coverage to major highways 
and interstates. The Commission further proposes to clarify, however, 
that any coverage necessary to provide complete service to major 
highways, interstates, and incorporated communities with populations 
greater than 3,000 beyond the network coverage required by the 
Commission's population benchmarks must be established no later than 
the end of the D Block license term. In addition, the Commission 
proposes that to the extent that coverage of major highways, 
interstates and incorporated communities with populations in excess of 
3,000 requires the D Block licensee to extend coverage beyond what is 
required to meet its population benchmarks, the Commission would permit 
that coverage to be met through non-terrestrial means, such as MSS or 
other such technologies. As discussed above, the Commission tentatively 
concludes that the proposed population coverage benchmarks provide the 
best balance between maximizing coverage and ensuring commercial 
viability of the network and therefore, that reliance on non-
terrestrial technologies is justified to the extent that the proposed 
requirements regarding major highways, interstates, and small 
communities would impose a more onerous build-out obligation. In order 
to provide the D Block licensee with the flexibility to use a myriad of 
innovative solutions, including non-terrestrial technologies, the 
Commission seeks comment on whether any of its existing rules for this 
band regarding terrestrial base stations or land stations may need to 
be clarified or modified to be applicable to non-terrestrial 
technologies that perform the same functions of terrestrial base 
stations and that comply with service rules applicable to the D Block 
and the Public Safety Broadband spectrum, including rules regarding 
interference protection and network specifications.\335\
---------------------------------------------------------------------------

    \335\ See Space Data Ex Parte September 17, 2008 letter to 
Marlene H. Dortch at 4-5 (requesting, among other things, that the 
Commission: (1) Amend the definition of ``base station'' in Section 
27.4 of the rules to include ``technologies that perform the same 
functions as land stations,'' and/or (2) provide that any technical 
requirements in Sections 27.50-27.70 that apply to base stations or 
fixed towers similarly apply to non-traditional technologies that 
perform the same functions as base stations or towers.).
---------------------------------------------------------------------------

    156. To further facilitate public safety access to the network in 
low or zero-population areas where the network has not yet been 
constructed and to satellite services more broadly, the Commission 
proposes to maintain the current requirement that the D Block licensee 
make available to the Public Safety Broadband Licensee at least one 
handset suitable for public safety use that includes an integrated 
satellite solution under terms, conditions, and timeframes set forth in 
the NSA. The Commission seeks comment on these tentative 
conclusions.\336\
---------------------------------------------------------------------------

    \336\ As discussed elsewhere in this Third FNPRM, the Commission 
also proposes to continue requiring the NSA to include a detailed 
build-out schedule that is consistent with the performance 
benchmarks and requirements that the Commission proposes above.
---------------------------------------------------------------------------

    157. The Commission tentatively concludes to revise the D Block 
license term and performance requirements start date from February 17, 
2009, to the date that the D Block licensees receive their licenses. 
The Commission previously anticipated that the D Block licensee would 
receive its license prior to February 17, 2009. Given that the 
Commission no longer expects to license the D Block before February 17, 
2009, the Commission tentatively concludes that the D Block license 
term and performance requirements start date should be the license 
grant date as is consistent with other wireless services.\337\ The 
Commission seeks comment on the Commission's tentative conclusion that 
the Commission should use the license grant date as the start date for 
the D Block license term and performance requirements.
---------------------------------------------------------------------------

    \337\  See, e.g., 47 CFR 1.946.
---------------------------------------------------------------------------

    158. The Commission proposes to continue to allow the D Block 
licensee to modify its population-based construction benchmarks where 
the D Block licensee and the Public Safety Broadband Licensee reach 
agreement and the Commission gives its prior approval for a 
modification. This approach would allow a certain limited degree of 
flexibility to meet commercial and public safety needs where those 
needs may deviate from the Commission's adopted construction 
benchmarks. As with other commercial 700 MHz Band licensees, the D 
Block licensee will be required under the Commission's proposal to 
demonstrate compliance with the Commission's adopted benchmarks by 
filing with the Commission within 15 days of passage of the relevant 
benchmarks a construction notification comprised of maps and other 
supporting documents certifying that it has met the Commission's 
performance requirements.\338\ The construction notification, including 
the coverage maps and supporting documents, must be truthful and 
accurate and not omit material information that is necessary for the 
Commission to make a determination of compliance with the Commission's 
performance requirements.\339\ However, unlike some other commercial 
licenses and because of the nature of the partnership established 
herein, the D Block licensee will not be subject to a ``keep-what-you-
use'' rule. Rather, the Commission will strictly enforce these build-
out requirements and, if the D Block licensee fails to meet a 
construction benchmark, the Commission may cancel its license, 
depending on the circumstances, or take any other appropriate measure 
within its authority. The Commission seeks comment on these proposals.
---------------------------------------------------------------------------

    \338\ See 47 CFR 1.946(d) (``The notification must be filed with 
Commission within 15 days of the expiration of the applicable 
construction or coverage period.'').
    \339\ See, e.g., 47 CFR 1.17 (Truthful and accurate statements 
to the Commission); 47 CFR 1.917 (``Willful false statements made 
therein, however, are punishable by fine and imprisonment, 18 U.S.C. 
1001, and by appropriate administrative sanctions, including 
revocation of station license pursuant to 312(a)(1) of the 
Communications Act of 1934, as amended.'').
---------------------------------------------------------------------------

    159. As stated above, the Commission also tentatively concludes to 
revise the license term for the D Block license

[[Page 57782]]

from 10 to 15 years. By making this change, the Commission will provide 
for uniformity in the length of the performance requirement period and 
the length of the D Block license term. Further, allowing a 
significantly longer license term overall has the separate benefit of 
affording additional investment confidence and certainty. Public safety 
commenters and commercial entities support extending the D Block 
license term and the related period of time to meet the Commission 
proposed performances requirements.\340\ By having the license term and 
performance requirement period end at the same time, it will be easier 
to assess whether the D Block license should be renewed. The Commission 
seeks comment on these tentative conclusions.
---------------------------------------------------------------------------

    \340\ See, e.g., AASHTO Comments at 11; APCO Comments at 30; 
Council Tree Comments at 19; Ericsson Comments at 26; NENA Comments 
at 2; PSST Comments at 34; Wirefree Comments at 15.
---------------------------------------------------------------------------

    160. The Commission also proposes not to require the D Block 
licensee to make a separate substantial service showing for license 
renewal consistent with the Commission findings in the Second Report 
and Order.\341\ At the end of the 15 year license term, the D Block 
licensee will be permitted to apply for license renewal and that 
renewal will be subject to the licensee's success in meeting the 
material requirements set forth in the NSA as well as all other license 
conditions, including meeting the Commission's proposed performance 
requirements. Given these detailed license renewal requirements, the 
Commission does not propose to impose a separate substantial service 
showing requirement, with the possible exception of the Gulf of Mexico, 
as discussed below. The Commission seeks comment on this tentative 
conclusion to not impose on the D Block licensee a separate substantial 
service showing apart from meeting the requirements set forth in the 
NSA and the Commission's proposed performance requirements.
---------------------------------------------------------------------------

    \341\ See Second Report and Order, 22 FCC Rcd at 15450 para. 
458.
---------------------------------------------------------------------------

    161. With respect to the Gulf of Mexico PSR, the Commission notes 
that this PSR covers a body of water and, therefore, its proposed 
population-based benchmarks may not be appropriate for this PSR to meet 
public safety needs in that region. In addition, local and state public 
safety entities may have very limited operations in this region. 
Accordingly, the Commission proposes that it give the D Block licensee 
for the Gulf of Mexico PSR and the Public Safety Broadband Licensee 
flexibility to negotiate, as part of the NSA, a coverage and service 
plan for public safety use for that region as needed, subject to 
Commission resolution in the event of disputes. The Commission also 
seeks comment on whether it is sufficient to require the Gulf of Mexico 
D Block licensee to make a showing of substantial service as a 
condition of licensee renewal, as other 700 MHz licensees are currently 
required to do,\342\ as well as a showing of the D Block licensee's 
success in meeting the material requirements set forth in the NSA and 
all other license conditions. The Commission notes that, as proposed 
above, any build-out would have to meet the signal levels and other 
technical requirements that the Commission proposes in this Third 
FNPRM. With respect to the Gulf of Mexico PSR, the Commission notes 
that this PSR covers a body of water and, therefore, the proposed 
population-based benchmarks may not be appropriate for this PSR to meet 
public safety needs in that region. In addition, local and state public 
safety entities may have very limited operations in this region. 
Accordingly, the Commission proposes that it give the D Block licensee 
for the Gulf of Mexico PSR and the Public Safety Broadband Licensee 
flexibility to negotiate, as part of the NSA, a coverage and service 
plan for public safety use for that region as needed, subject to 
Commission resolution in the event of disputes. The Commission also 
seeks comment on whether it is sufficient to require the Gulf of Mexico 
D Block licensee to make a showing of substantial service as a 
condition of licensee renewal, as other 700 MHz licensees are currently 
required to do,\343\ as well as a showing of the D Block licensee's 
success in meeting the material requirements set forth in the NSA and 
all other license conditions. The Commission notes that, as proposed 
above, any build-out would have to meet the signal levels and other 
technical requirements that it proposes in this Third FNPRM.
---------------------------------------------------------------------------

    \342\ 47 CFR 27.14(e).
    \343\ 47 CFR 27.14(e).
---------------------------------------------------------------------------

    162. As a result of the Commission's tentative conclusion to revise 
the license term for the D Block license from 10 to 15 years, the 
Commission also tentatively concludes to extend the license term for 
the Public Safety Broadband Licensee. In adopting the 10-year licensee 
term for the Public Safety Broadband Licensee, the Commission sought to 
harmonize the license terms to facilitate the contemplated leasing 
arrangement and build-out requirements.\344\ Extending the license term 
from 10 years to 15 years for the Public Safety Broadband Licensee will 
be consistent with this reasoning. Also, the Commission tentatively 
concludes that the license term of the Public Safety Broadband Licensee 
should re-commence from the date that the D Block licensee receives its 
license, consistent with the Commission's determination to change the 
start date of the license term for the D Block licensee to that date. 
The Commission seeks comment on these tentative conclusions to extend 
the license term of the Public Safety Broadband Licensee.\345\ The 
Commission proposes that, if the Commission extends these license terms 
to 15 years, the Commission should also mandate a 15-year NSA term.
---------------------------------------------------------------------------

    \344\ See Second FNPRM, 23 FCC Rcd at 8083 para. 98.
    \345\ Elsewhere in this Third FNPRM, the Commission similarly 
proposes extending the initial term of the NSA to 15 years.
---------------------------------------------------------------------------

    163. The Commission proposes to continue requiring the NSA to 
include a detailed build-out schedule that is consistent with the 
performance benchmarks that the Commission has proposed in this 
section.\346\ Thus, the Commission proposes to continue to require the 
NSA to identify the specific areas of the country that will be built 
out and the extent to which major highways and interstates, as well as 
incorporated communities with a population in excess of 3,000, within 
the D Block licensee's service area will be covered by each of the 
performance deadlines.
---------------------------------------------------------------------------

    \346\ See Second Report and Order, 22 FCC Rcd at 15449 para. 
453.
---------------------------------------------------------------------------

    164. Finally, the Commission seeks comment on an alternative 
approach to the one the Commission has tentatively concluded to adopt 
for purposes of performance requirements, license term, and renewal in 
this Third FNPRM. Specifically, under such an alternative approach, the 
Commission could require the D Block licensee to provide signal 
coverage and offer service to at least 40 percent of the population of 
the license area by the end of the fourth year, 75 percent of the 
population by the end of the tenth year, and 95 percent of the 
population by the end of the fifteenth year. The requirements under 
this alternative approach will have to be met on a PSR basis, and 
licensees will have to use the most recently available decennial U.S. 
Census data at the time of measurement to meet the requirements. As a 
part of this alternative approach, the Commission also proposes to 
revise the length of the D Block license term from 10 to 15 years so 
that it coincides with the Commission proposed end-of-term performance 
requirements. The

[[Page 57783]]

Commission seeks comment on this alternative approach, and specifically 
on the adoption of a 95 percent coverage requirement by the end of the 
fifteenth year of the license term instead of the three tiered approach 
which the Commission proposes elsewhere in this Third FNPRM.
4. Role and Responsibilities of the D Block Licensee in the Management, 
Operations, and Use of the Network
    165. Background. In adopting the 700 MHz Public/Private Partnership 
in the Second Report and Order, the Commission sought to delineate the 
respective roles and responsibilities of the D Block licensee and the 
Public Safety Broadband Licensee in a manner that would ensure the 
construction and operation of a shared, interoperable broadband network 
infrastructure that operated on the 20 megahertz of spectrum associated 
with the D Block license and the Public Safety Broadband License and 
that served both the needs of commercial and public safety users.\347\ 
Under this plan, the D Block licensee and its related entities would 
finance, construct, and operate the shared network,\348\ but the full 
extent of the D Block licensee's operational role was not specified. In 
particular, the Commission indicated that the Public Safety Broadband 
Licensee, which would be required to lease its spectrum on a secondary 
basis to the D Block licensee pursuant to a spectrum manager leasing 
arrangement,\349\ would also have operational control of the network 
``to the extent necessary to ensure public safety requirements are 
met.'' \350\ In the Second FNPRM, the Commission sought comment on 
whether additional clarity with regard to the role and responsibilities 
of the D Block licensee would be helpful to ensure that the 700 MHz 
Public/Private Partnership achieves its goal in creating a shared, 
interoperable broadband network.\351\ In particular, the Commission 
indicated the Commission's expectation that the D Block licensee would 
establish a network operations system, including an operations/
monitoring center, billing functions, and customer care services, among 
other elements, to support the network infrastructure that it deployed 
and the services that it provided over that infrastructure to public 
safety entities.\352\ The Commission sought comment on whether the 
Commission should provide that all such traditional network service 
provider operations for the benefit of either commercial users or 
public safety users should be responsibilities exclusively assumed by 
the D Block licensee, and whether assigning such responsibilities 
exclusively to the D Block licensee would better enable the Public 
Safety Broadband Licensee to administer access to the national public 
safety broadband network by individual public safety entities and to 
perform its other related responsibilities.\353\
---------------------------------------------------------------------------

    \347\ See, e.g., 22 FCC Rcd at 15426 para. 383, 15431 para. 396.
    \348\ See, e.g., id. at 15428 para. 386.
    \349\ See id. at 15437-38 ]] 414-17.
    \350\ See id. at 15434 para. 405.
    \351\ See Second FNPRM, 23 FCC Rcd at 8088 para. 113.
    \352\ See Second FNPRM, 23 FCC Rcd at 8088-89 para. 115.
    \353\ See Second FNPRM, 23 FCC Rcd at 8088-89 para. 115
---------------------------------------------------------------------------

    166. Comments. Several commenters--including both commercial and 
public safety entities--state that the D Block licensee should maintain 
control of the network, subject to some limited areas of operational 
authority by the Public Safety Broadband Licensee. For instance, AT&T 
argues that commercial partners should have ``day-to-day'' operational 
control over the entire network, ``subject only to discrete PSBL 
operational authority defined by the Commission prior to the RFP 
process or a reauction.'' \354\ Similarly, Ericsson contends that that 
the D Block licensee should run a substantial part of the network on a 
``day-to-day'' basis.\355\
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    \354\ AT&T Comments at 16.
    \355\ Ericsson Comments at 30. See also APCO Comments at 35 
(arguing that the D Block licensee should manage the network, and 
that the Public Safety Broadband Licensee needs to move towards a 
management structure that monitors D Block licensee contract 
performance and service relations, without duplicating the D Block 
licensee's core function or neglecting the agencies and citizens the 
PSBL is charged to protect).
---------------------------------------------------------------------------

    167. The PSST argues against allowing the D Block licensee ``sole 
control over all of the traditional network service provider 
operations, including those associated with the spectrum for which the 
PSST is the licensee.'' \356\ It argues that providing the D Block 
licensee with ``sole control'' will impair the Public Safety Broadband 
Licensee's abilities to administer access and carry out its other 
obligations, and that fulfilling its functions in the 700 MHz Public/
Private Partnership, such as monitoring the D Block licensee's 
compliance with the terms of the NSA, ``requires that the PSST not be 
passive or entirely dependent on the activities and assurances of the D 
Block operator.'' \357\ The PSST further asserts that the Public Safety 
Broadband Licensee must continue to have a ``direct relationship'' with 
public safety users.\358\
---------------------------------------------------------------------------

    \356\ PSST Comments at 11-12.
    \357\ PSST Comments at 13.
    \358\ PSST Comments at 12.
---------------------------------------------------------------------------

    168. The PSST argues that allowing ``the D Block licensee to assume 
sole control of all traditional network service provider operations on 
PSBL spectrum would be even more problematic should the FCC authorize a 
wholesale-only model for the D Block licensee.'' \359\ Under a 
wholesale-only approach, it argues, ``it is not at all clear who would 
deliver the necessary services to public safety agencies, including 
ensuring that the primary goal of interoperability is satisfied in an 
environment where different services might be made available by 
individual retail providers in different markets, or even in the same 
market.'' \360\ Accordingly, it states, if the D Block winning bidder 
elects a wholesale model, ``the PSST and FCC will need to be confident 
that the specific needs of public safety users nonetheless will be met. 
In addition, the PSST asserts that the D Block licensee's 
responsibilities should include delivering ``to the Public Safety 
Broadband Licensee capacity utilization reports that provide a 
comparative measure of public safety network services utilization 
against the documented, engineered, installed, and in-service Radio 
Access (RA) and terrestrial network capacity.'' \361\
---------------------------------------------------------------------------

    \359\ PSST Comments at 12.
    \360\ PSST Comments at 12.
    \361\ PSST Reply Comments, Attach. A1 at 6.
---------------------------------------------------------------------------

    169. Discussion. The Commission tentatively concludes, consistent 
with the Commission's tentative determinations elsewhere regarding the 
appropriate operational role and responsibilities of the Public Safety 
Broadband Licensee, that the D Block licensee(s) should assume 
exclusive responsibility for all traditional network service provider 
operations, including network monitoring and management, operational 
support and billing systems, and customer care, in connection with 
services provided to public safety users.
    170. As the Commission noted in the Second FNPRM, ``primary 
operational control of the network is inherently the responsibility of 
the D Block licensee (and its related entities), which would in turn 
generally provide the operations and services that enable the Public 
Safety Broadband Licensee to ensure public safety requirements are 
met.'' \362\ The Commission agrees with AT&T that the commercial 
partner will likely have the experience, resources, and personnel to 
best perform these

[[Page 57784]]

functions, and that without assurance of day-to-day operational 
control, commercial partners might be deterred from seeking D Block 
licenses.\363\ Providing that the D Block licensee(s) will assume 
exclusive responsibility for traditional operations should also avoid 
any duplication of efforts or responsibilities between the D Block 
licensee(s) and the Public Safety Broadband Licensee, improving the 
efficiency of network operation, and ensuring that the Public Safety 
Broadband Licensee will be focused on meeting its own exclusive 
functions and responsibilities.
---------------------------------------------------------------------------

    \362\ Second FNPRM, 23 FCC Rcd at 8091-92 para. 124.
    \363\ AT&T Comments at 17.
---------------------------------------------------------------------------

    171. In addition, while the Commission provides that only the D 
Block licensee(s) may directly manage the network or provide network 
services, the Commission observes that the Public Safety Broadband 
Licensee will nonetheless retain control over use of the Public Safety 
Broadband spectrum, pursuant to its license obligations and the 
spectrum manager leasing arrangement(s) for D Block secondary use 
lasting for the full term of the license(s),\364 \and will have 
significant input into the provision of such services through the 
establishment of priority access, service levels and related 
requirements within the NSA process, approving public safety 
applications and end user devices, and ongoing monitoring of system 
performance made possible through the monthly reporting requirement the 
Commission proposes to mandate on the D Block licensee(s) showing 
network usage. As a consequence, reserving all traditional network 
provider functions to the D Block licensee(s) should not prevent the 
Public Safety Broadband Licensee from maintaining a direct relationship 
with public safety users or from carrying out its specific assigned 
responsibilities.
---------------------------------------------------------------------------

    \364\ See Second Report and Order, 22 FCC Rcd at 15437-38, 
paras. 414-17. See also 47 CFR 90.1407.
---------------------------------------------------------------------------

    172. As noted above, the Commission tentatively decides to impose 
specific obligations on the D Block licensee(s) to provide regular 
monthly reports on network usage to the Public Safety Broadband 
Licensee as proposed by the PSST. This network reporting requirement 
will be in addition to the existing requirement that, following the 
execution of the NSA, the D Block licensee(s) and Public Safety 
Broadband Licensee must jointly provide quarterly reports including 
detailed information on the areas where broadband service is deployed, 
how the specific requirements of public safety are being met, audited 
financial statements, and other aspects of public safety use of the 
network.\365\ The Commission anticipates that such reporting will 
enable the Public Safety Broadband Licensee to carry out its 
responsibility to monitor system performance and provide adequate 
oversight of the D Block licensee's operations.
---------------------------------------------------------------------------

    \365\ See Second Report and Order, 22 FCC Rcd at 15471 para. 
530.
---------------------------------------------------------------------------

    173. National Committee of D Block Licensees. The Commission notes 
U.S. Cellular's proposal that, if the D Block is licensed on a regional 
basis to multiple entities, there should be a National Committee of 
Licensees, which would: (1) ``Serve as a single point of contact for 
FCC, PSST and public safety agencies with licensees on national 
issues;'' (2) ``develop licensees' recommendations for any FCC rule 
changes''; (3) ``negotiate changes in national NSA with PSST;'' (4) 
``arrange support services for operations requiring inter-carrier 
coordination;'' and (5) ``work in conjunction with existing standards 
bodies and clearing houses.'' \366\ The PSST also has similarly 
proposed that if the Commission adopts regional licensing, it should, 
among other things, ``adopt a legally binding governance structure to 
facilitate interactions among multiple D Block licensees and PSST, and 
to ensure interoperability and nationwide roaming.'' \367\ The 
Commission seeks comment on these proposals, and more generally on 
whether, in the event the Commission licenses the D Block on a regional 
basis, the Commission should require the regional licensees to form a 
formal national governance structure, and if so, what role and 
responsibilities this national entity should have in the establishment 
of the NSA(s), the construction and operation of the regional networks, 
or any other matter.
---------------------------------------------------------------------------

    \366\ Letter from Warren G. Lavey, on behalf of United States 
Cellular Corp., to Marlene H. Dortsch, Secretary, FCC, WT Docket No. 
06-150, filed Sept. 2, 2008 (US Cellular Sept. 2, 2008 Ex Parte), 
Attach., ``Making the Partnership Work: Solutions for the 700 MHz D 
Block'', at 7.
    \367\ Letter from Chief Harlin R. McEwen, Chairman, Public 
Safety Spectrum Trust Corporation, to Marlene H. Dortsch, Secretary, 
FCC, WT Docket No. 06-150, filed Aug. 29, 2008 (PSST Aug. 29, 2008 
Ex Parte), at 1.
---------------------------------------------------------------------------

    174. Wholesale Service. With regard to the provision of wholesale 
service, the Commission has proposed elsewhere in this Third FNPRM to 
continue to permit the D Block licensee(s) the flexibility to provide 
either retail or wholesale service commercially. With regard to 
services to public safety entities, however, the Commission tentatively 
concludes that such flexibility must be limited to some extent. As the 
PSST notes, ``[u]nder a wholesale-only approach, it is not at all clear 
who would deliver the necessary services to public safety agencies * * 
*.'' \368\ To address this concern, the Commission tentatively 
concludes that if the D Block licensee chooses to adopt a wholesale-
only model with respect to the D Block spectrum, it must still ensure, 
though arrangements such as the creation of a subsidiary or by 
contracting with a third party, that retail service will be provided to 
public safety entities that complies with the Commission's regulatory 
requirements.\369\ The Commission proposes to require this arrangement 
to be included in the NSA, and that, whatever the arrangement, the D 
Block licensee should be responsible for ensuring that service to 
public safety meets applicable requirements. The Commission notes that 
the current rules require the D Block licensee to create separate 
entities to hold the license and network assets, respectively, and a 
third entity to construct and operate the network, and further require 
that these separate entities must be special purpose, bankruptcy remote 
entities, as defined in the rules, to provide the network with a 
certain degree of protection from being drawn into a bankruptcy 
proceeding. The Commission seeks comment on whether certain 
arrangements might enable a D Block licensee to place important assets 
outside the protection from bankruptcy that the Commission intended 
through this structure.
---------------------------------------------------------------------------

    \368\ PSST Comments at 12.
    \369\ The relationship between a D Block auction winner and the 
retail-level operating company will be subject to all of the 
Commission's rules, including, but not limited to, provisions 
regarding leasing in Subparts Q and X of Part 1 of the Commission's 
rules.
---------------------------------------------------------------------------

5. Role and Responsibilities of the Public Safety Broadband Licensee in 
the Use of the Network
    175. Background. In the Second Report and Order the Commission 
charged the Public Safety Broadband Licensee with representing the 
interests of the public safety community to ensure that the shared 
interoperable broadband network meets their needs. Specifically, the 
Commission assigned the following responsibilities to the Public Safety 
Broadband Licensee concerning its partnership with the D Block 
licensee:
    <bullet> General administration of access to the national public 
safety broadband network by individual public safety entities, 
including assessment of usage fees to recoup its expenses and related 
frequency coordination duties.

[[Page 57785]]

    <bullet> Regular interaction with and promotion of the needs of the 
public safety entities that would utilize the national public safety 
broadband network, within the technical and operational confines of the 
NSA.
    <bullet> Use of its national level of representation of the public 
safety community to interface with equipment vendors on its own or in 
partnership with the D Block licensee, as appropriate, to achieve and 
pass on the benefits of economies of scale concerning network and 
subscriber equipment and applications.
    <bullet> Sole authority, which cannot be waived in the NSA, to 
approve, in consultation with the D Block licensee, equipment and 
applications for use by public safety entities on the public safety 
broadband network.
    <bullet> Responsibility to facilitate negotiations between the 
winning bidder of the D Block license and local and state entities to 
build out local and state-owned lands.\370\
---------------------------------------------------------------------------

    \370\ Second Report and Order at 15427 para. 383.
---------------------------------------------------------------------------

    176. The Commission also identified several other of the Public 
Safety Broadband Licensee's responsibilities, which included:
    <bullet> Coordination of stations operating on public safety 
broadband spectrum with public safety narrowband stations, including 
management of the internal public safety guard band.
    <bullet> Oversight and implementation of the relocation of 
narrowband public safety operations in channels 63 and 68, and the 
upper 1 megahertz of channels 64 and 69.
    <bullet> Exercise of sole discretion, pursuant to Section 2.103 of 
the Commission's rules, whether to permit Federal public safety agency 
use of the public safety broadband spectrum, with any such use subject 
to the terms and conditions of the NSA.
    <bullet> Responsibility for reviewing requests for wideband waivers 
and including necessary conditions or limitations consistent with the 
deployment and construction of the national public safety broadband 
network.\371\
---------------------------------------------------------------------------

    \371\ Id.
---------------------------------------------------------------------------

    177. In developing these responsibilities, the Commission afforded 
the Public Safety Broadband Licensee flexibility in overseeing the 
construction and use of the nationwide broadband public safety network, 
while seeking ``to balance that discretion with the concurrent and 
separate responsibilities'' of the D Block licensee.\372\ To that end, 
the Commission indicated elsewhere that the interoperable shared 
broadband network must incorporate, among other requirements, 
``[o]perational control of the network by the Public Safety Broadband 
Licensee to the extent necessary to ensure public safety requirements 
are met.'' \373\
---------------------------------------------------------------------------

    \372\ Id. at 15426 para. 383.
    \373\ Id. at 15434 para. 405.
---------------------------------------------------------------------------

    178. In the Second FNPRM, the Commission sought comment on whether 
the Commission should clarify that the Public Safety Broadband Licensee 
may not assume any additional responsibilities other than those 
specified by the Commission in this proceeding.\374\ The Commission 
asked generally whether the Commission should clarify, revise, or 
eliminate any of the specific responsibilities listed above that the 
Public Safety Broadband Licensee must assume.\375\ The Commission also 
sought comment in particular on whether to clarify or revise the 
division of responsibility between the Public Safety Broadband Licensee 
and the D Block licensee regarding direct interaction with individual 
public safety entities in the establishment of service to such 
entities, the provision of service, customer care, service billing, or 
other matters.\376\
---------------------------------------------------------------------------

    \374\ Second FNPRM, 23 FCC Rcd at 8090, para. 121.
    \375\ Id.
    \376\ Second FNPRM at para. 122.
---------------------------------------------------------------------------

    179. In addressing these questions, the Commission asked commenters 
to consider the unique role served by the Public Safety Broadband 
Licensee by virtue of holding the single nationwide public safety 
license, while not being an actual user of the network.\377\ The 
Commission observed that the Public Safety Broadband Licensee would in 
many respects function much as regional planning committees presently 
do in the 700 MHz and 800 MHz bands, yet with a nationwide scope.\378\ 
The Commission noted, for example, that like regional planning 
committees, the Public Safety Broadband Licensee would administer 
access to the spectrum, coordinate spectrum use, interact with and 
promote the needs of individual public safety agencies, and ensure 
conformance with applicable technical and operational rules.\379\ The 
Commission further observed that the Public Safety Broadband Licensee 
has distinct abilities, in that it may assess usage fees to recoup its 
costs, can use its national level of representation to pass on the 
benefits of economies of scale for subscriber equipment and 
applications, and holds sole authority to approve, in consultation with 
the D Block licensee, equipment and applications for public safety 
users, and to permit Federal public safety agency use.\380\
---------------------------------------------------------------------------

    \377\ Second FNPRM at para. 122.
    \378\ Second FNPRM at para. 122.
    \379\ Second FNPRM at para. 122.
    \380\ Second FNPRM at para. 123.
---------------------------------------------------------------------------

    180. In light of these similarities and differences, the Commission 
asked whether there are certain elements of the existing regional 
planning committee functions that the Commission should adopt for the 
Public Safety Broadband Licensee, and whether for those functions 
distinct from regional planning committees, the Commission should adopt 
specific rules governing how the Public Safety Broadband Licensee would 
carry those out.\381\ To the extent the Public Safety Broadband 
Licensee also serves a role as a partner with the D Block licensee 
(such as facilitating negotiations between the D Block licensee and 
state and local agencies for local build-outs), the Commission asked 
how, if at all, the Public Safety Broadband Licensee's role as one half 
of the 700 MHz Public/Private Partnership should impact how the 
Commission modify or clarify the respective responsibilities of the D 
Block licensee and the Public Safety Broadband Licensee moving 
forward.\382\
---------------------------------------------------------------------------

    \381\ Second FNPRM at para. 123
    \382\ Second FNPRM at para. 124.
---------------------------------------------------------------------------

    181. The Commission also observed in the Second FNPRM that more 
specific limits may be required regarding the Public Safety Broadband 
Licensee's discretion to carry out its partner-related 
responsibilities.\383\ The Commission noted, for example, that the 
shared wireless broadband network elements adopted in the Second Report 
and Order required that the network infrastructure incorporate 
operational control of the network by the Public Safety Broadband 
Licensee ``to the extent necessary'' to ensure public safety 
requirements are met.\384\ The Commission reiterated that the 
underlying premise of the 700 MHz Public/Private Partnership was that 
the D Block licensee would be responsible for construction and 
operation of the broadband network.\385\ The Commission observed that 
allowing duplication of some or all of these operational functions by 
the Public Safety Broadband Licensee could render it a reseller of 
services, thus injecting an inappropriate ``business'' or ``profit'' 
motive into the Public Safety Broadband Licensee structure, and 
detracting it from the intended primary focus of the Public Safety 
Broadband Licensee.\386\ Accordingly, the Commission sought comment on 
whether to clarify that

[[Page 57786]]

none of the responsibilities and obligations of the Public Safety 
Broadband Licensee, either as previously adopted or as possibly 
revised, would permit the Public Safety Broadband Licensee to assume or 
duplicate any of the network monitoring, operations, customer care, or 
related functions that are inherent in the D Block licensee's 
responsibilities to construct and operate the shared network 
infrastructure.\387\
---------------------------------------------------------------------------

    \383\ Second FNPRM at para. 124.
    \384\ Second FNPRM at para. 124.
    \385\ Second FNPRM at para. 124.
    \386\ Second FNPRM at para. 124.
    \387\ Second FNPRM at para. 124.
---------------------------------------------------------------------------

    182. The Commission further sought comment on whether to expressly 
provide that neither the Public Safety Broadband Licensee nor any of 
its advisors, agents, or service providers may assume responsibilities 
akin to a mobile virtual network operator (``MVNO'') \388\ because such 
a role would be contrary to the respective roles and responsibilities 
of the D Block licensee and Public Safety Broadband Licensee regarding 
construction, management, operations, and use of the shared wireless 
broadband network, might unnecessarily add to the costs of the 700 MHz 
Public/Private Partnership, and might otherwise permit ``for profit'' 
incentives to influence the operations of the Public Safety Broadband 
Licensee.\389\
---------------------------------------------------------------------------

    \388\ A mobile virtual network operator is a non-facility-based 
mobile service provider that resells service to the public for 
profit. See Implementation of Section 6002(B) of the Omnibus Budget 
Reconciliation Act of 1993, WT Docket No. 05-71, Tenth Report, 20 
FCC Rcd 15908, 15920 para. 27 (2005).
    \389\ Second FNPRM, 23 FCC Rcd at 8092, at para. 125.
---------------------------------------------------------------------------

    183. Comments. The PSST generally argued that it must be an ``equal 
partner'' in the 700 MHz Public/Private Partnership, and that 
``[b]ecause the FCC has made the PSST responsible for the public safety 
user experience on the SWBN [shared wireless broadband network], it 
also must provide the PSST with a mechanism that permits the PSST to 
fulfill that responsibility on an ongoing basis after negotiating the 
NSA.'' \390\ The PSST explained that while it ``accepts the FCC's view 
that the PSST should not have [ ] an active role in the `business' of 
managing the public safety user experience on the SWBN,'' it ``does not 
agree that the D Block licensee should have sole control over all of 
the traditional network service provider operations, including those 
associated with the spectrum for which the PSST is the licensee.''\391\ 
The PSST further argued that ``[c]eding sole control over these 
important functions to the D Block licensee would seriously impair, not 
`better enable,' the PSBL's ability to `administer access to the 
national public safety broadband network by individual public safety 
entities, coordinate frequency usage, assess usage fees, and exercise 
its sole authority to approve equipment and applications for use by 
public safety entities.' '' \392\ The PSST asserted that ``[i]t is 
clear to the PSST that for the PSST to `administer' network access it 
will need some form of direct relationship with public safety users on 
the network.''\393\
---------------------------------------------------------------------------

    \390\ PSST Comments at 10.
    \391\ PSST Comments at 11-12 (citing 47 CFR 1.9010, 1.9020 and 
90.1440).
    \392\ PSST Comments at 12 (citing Second FNPRM at para. 115; 
Appendix, Section II).
    \393\ PSST Comments at 12.
---------------------------------------------------------------------------

    184. The PSST argued that ``it can fulfill its responsibilities if 
it is considered to operate in a manner comparable to a `cooperative' 
licensee.'' \394\ According to the PSST, under this model, the 
``cooperative status permits a single entity to hold the authorization 
for spectrum that will be utilized by multiple users on a non-profit, 
cost-shared basis when each user is independently eligible to operate 
on the spectrum.'' \395\ Additionally, according to the PSST, ``[t]he 
cooperative approach should provide the PSST with a direct enforcement 
right to obtain redress on behalf of public safety users as well as a 
direct right to ensure that the highest levels of SWBN priority access 
are only used for public safety authorized purposes.'' \396\
---------------------------------------------------------------------------

    \394\ PSST Comments at 14 (citing 47 CFR 90.179).
    \395\ PSST Comments at 14.
    \396\ PSST Comments at 14.
---------------------------------------------------------------------------

    185. The PSST asserted that ``the FCC already has determined that 
the PSST must have operational control of the SWBN to the extent 
required to ensure that public safety requirements are met, a 
responsibility that is critical during incident management.'' \397\ The 
PSST acknowledged that ``this can be accomplished without the PSST 
establishing Network Operating Centers (NOCs) or other network elements 
that could be considered parallel to or duplicative of those maintained 
by the D Block licensee,'' \398\ but added that ``the PSST's right to 
an appropriate level of control dictates that it must have the 
exclusive right to manage the assignment of the highest priority levels 
on the SWBN.'' \399\
---------------------------------------------------------------------------

    \397\ PSST Comments at 15.
    \398\ PSST Comments at 15.
    \399\ PSST Comments at 16. The PSST further explained that while 
``overall control of these priority levels must reside with the 
PSST, [ ] individual priority assignments may be carried out, as 
they are today, at more local levels.'' Id. The PSST also asserted 
that it would need to play an ``active role'' in ``[e]stablishing 
standards for the construction of a SWBN with specific features and 
services for the benefit of public safety,'' and ``[n]egotiating 
arrangements for the purchase of equipment from vendors (under 
master agreements for the benefit of public safety users), and 
renegotiating these agreements on an ongoing basis to reflect the 
latest market developments.'' Id. at 9-10.
---------------------------------------------------------------------------

    186. The PSST also argued that it ``must have an independent 
ability to monitor the D Block licensee's compliance with the FCC rules 
and with the terms of the NSA as they relate to public safety 
operations on the SWBN,'' which it further argued would involve 
monitoring ``the D Block operator's performance on a real-time basis so 
that problems are identified and corrected, preferably before they 
impact public safety communications rather than after the fact.'' \400\ 
The PSST clarified that ``[a]lthough the D Block licensee will always 
have operational control of the SWBN, the PSST should have sufficient 
access to and certain rights regarding the D Block licensee's NOC and 
data centers to carry out the PSST's obligations, including 
implementing priority access for public safety users, if the PSST is 
not to have its own facilities.'' \401\ According to the PSST, 
``[n]either the PSST nor the emergency responders who elect to join the 
network should have to rely entirely on self-policing and self-
reporting by the D Block licensee to confirm that public safety needs 
are being met.'' \402\ The PSST further asserted that ``[i]t also is 
important that the PSST, as well as the D Block licensee, play a direct 
role in promoting widespread public safety usage of the SWBN.'' \403\
---------------------------------------------------------------------------

    \400\ PSST Comments at 16. The PSST also contended that it 
``will need to be involved in and able to enforce the contracts 
between public safety users and the D Block licensee in order to 
ensure contract compliance and obtain redress on behalf of public 
safety users, without being reduced to an ineffectual committee 
preparing reports on NSA compliance.'' Id. at 10.
    \401\ PSST Comments at 16 n.30.
    \402\ PSST Comments at 16.
    \403\ PSST Comments at 17.
---------------------------------------------------------------------------

    187. The PSST included proposed regulations with its Reply Comments 
that would implement many of its positions described above.\404\ For 
example, under its proposed regulations defining the ``Shared Wireless 
Broadband Network,'' the network would ``[p]rovide for operational 
control of the network by the Public Safety Broadband Licensee, on 
terms and conditions agreed to by the Public Safety Broadband Licensee 
and the Upper 700 MHz D Block licensee, to the extent necessary to 
ensure that Priority Public Safety Users' expectations are met.'' \405\ 
Under the proposed regulations, these terms and conditions

[[Page 57787]]

would include the ability of the Public Safety Broadband Licensee and 
public safety users to ``[h]ave real-time monitoring and visibility 
into the network that is integrated with performance, SLA, and KPI 
reports as defined and specified in the NSA'' as well as ``real-time 
visibility into Shared Wireless Broadband Network service quality and 
network status relevant to the local agency or jurisdiction, including 
the ability for local Priority Public Safety Users to have real-time 
network status, site status, and alarm visibility for their geographic 
area.'' \406\
---------------------------------------------------------------------------

    \404\ See PSST Reply Comments, Attachment A.
    \405\ See PSST Reply Comments, Attachment A, at 9.
    \406\ Id. The proposed regulations further indicate that 
``[o]perational control, as agreed to between the Upper 700 MHz D 
Block licensee and the Public Safety Broadband Licensee in the NSA, 
shall include * * * [t]he authorities and permissions for Public 
Safety Broadband Licensee-trained incident management personnel to 
have real-time access to the Upper 700 MHz D Block licensee's 
primary and secondary Network Operations Centers (NOCs).'' Id. at 
10.
---------------------------------------------------------------------------

    188. APCO argued that it would be inappropriate for the PSBL to act 
as a MVNO because such action ``would add duplication and costs that 
could become a burden for both the PSBL and, more importantly, end 
users.'' \407\ APCO observed that the MVNO model ``also imposes 
responsibilities on the PSBL for which it is likely to be ill-
equipped,'' and that ``[t]o accept such a responsibility, the PSBL 
would need to rely heavily upon commercial contractors, and somehow 
provide sufficient oversight to ensure that the contractors are serving 
public safety's interests.'' \408\ APCO further observed that 
``[b]uilding the required internal management and operational 
capability would also involve very substantial capital expenditures,'' 
for which the PSBL ``would need to rely upon either debt extended by 
its contractors [] or substantial payment from the D Block licensee 
pursuant to the NSA (which would likely discourage bidders once 
again).'' \409\
---------------------------------------------------------------------------

    \407\ APCO Comments at 34.
    \408\ APCO Comments at 34.
    \409\ APCO Comments at 34-35.
---------------------------------------------------------------------------

    189. APCO argued, however, that the ``PSBL does need to have an 
active role in the operation of the broadband network to ensure that it 
meets public safety's requirements.'' \410\ APCO stated that ``there 
needs to be a mechanism to oversee priority access and proper incident 
command and control for the capacity represented by the 10 MHz licensed 
to the PSBL.'' \411\ More specifically, APCO argued that ``the PSBL 
needs to move towards a management structure that monitors D Block 
licensee contract performance and service relations, without 
duplicating the D Block licensee's core function or neglecting the 
agencies and citizens the PSBL is charged to protect.'' \412\ To 
achieve this objective, APCO proposed a specific list of tasks and 
services that it contended the PSBL needs the ability to perform.\413\
---------------------------------------------------------------------------

    \410\ APCO Comments at 35.
    \411\ APCO Comments at 35.
    \412\ APCO Comments at 35.
    \413\ APCO Comments at 35-37.
---------------------------------------------------------------------------

    190. AT&T urged the Commission to ``definitively declare that 
commercial partners will have operational control over the entire joint 
network, subject only to specific PSBL operational authority that the 
Commission clearly defines prior to the RFP process or a reauction.'' 
\414\ AT&T contended that ``[c]ommercial partners require day-to-day 
operational control over the entire network to ensure that commercial 
and public safety service offerings meet the high standards expected by 
commercial and public safety end users on a daily basis,'' adding that 
``commercial partners are likely also in the best position to perform 
this function, given their experience, expertise, and personnel and 
financial resources.'' \415\ AT&T further contended that ``[w]ithout 
assurance of commercial control over the network's operations, AT&T 
questions whether any interested commercial parties will participate in 
a RFP process or reauction.'' \416\ To that end, AT&T requested 
clarification regarding the Commission's statement in the Second Report 
and Order that the Public Safety Broadband Licensee would have 
``operational control of the network to the extent necessary to ensure 
public safety requirements are met.'' \417\ More specifically, AT&T 
argued that ``[i]n order to assess the commercial viability of the 
Public/Private Partnership, potential commercial participants need the 
Commission to eliminate [any] ambiguity [on this issue] and to provide 
a concise definition of ``operational control.'' \418\
---------------------------------------------------------------------------

    \414\ AT&T Comments at 16. See also Reply Comments of AT&T at 
17-18.
    \415\ AT&T Comments at 16-17.
    \416\ AT&T Comments at 17.
    \417\ AT&T Comments at 17 (citing Second Report and Order at 
para. 405).
    \418\ AT&T Comments at 17.
---------------------------------------------------------------------------

    191. AT&T further requested that the Commission clarify that ``the 
PSBL has a responsibility to set priority levels and provision priority 
users on the public safety network,'' for which AT&T recommends 
following the model established by [the Department of Homeland 
Security's National Communications System] in the provisioning of 
[Wireless Priority Service].'' \419\ In addition, AT&T asserted that 
``decisions whether a certain public safety device or application 
should be permitted on the public/private network should rest primarily 
with the PSBL.'' \420\ AT&T indicated that it ``generally agrees'' with 
the list of potential PSBL responsibilities proposed by APCO.\421\ AT&T 
opposed the notion of allowing the Public Safety Broadband Licensee to 
act as an MVNO, arguing that allowing ``the PSBL or its advisors 
operate as an MVNO or otherwise profiteer from the Public/Private 
Partnership will likely raise the costs of services for public safety 
users as well as discourage commercial participation in the Public/
Private Partnership.'' \422\
---------------------------------------------------------------------------

    \419\ AT&T Comments at 17-18.
    \420\ AT&T Comments at 18.
    \421\ AT&T Reply Comments at 18.
    \422\ AT&T Comments at 21-22. See also AT&T Reply Comments at 
16.
---------------------------------------------------------------------------

    192. Big Bend Telephone Company argued that the Commission ``should 
not permit the Public Safety Broadband Licensee, or any of its 
advisors, agents, or service providers to provide commercial services 
as a `mobile virtual network operator.' ''\423\ Big Bend further argued 
that permitting such action ``would permit `for profit' incentives to 
influence the operations of the Public Safety Broadband Licensee,'' 
which Big Bend argued would ``prove detrimental to the viability of 
smaller and rural wireless carriers.'' \424\ Big Bend also contended 
that smaller and rural wireless carriers ``should have a reasonable 
expectation that the FCC's rules will not permit a heavily subsidized 
competitor--one that did not have to pay for its spectrum or network 
construction, and that enjoys preferred regulatory status--to compete 
in the market for commercial wireless services.'' \425\ A number of 
other rural telecommunications carriers filed essentially identical 
comments.\426\
---------------------------------------------------------------------------

    \423\ Big Bend Comments at 3.
    \424\ Big Bend Comments at 3.
    \425\ Big Bend Comments at 3.
    \426\ See ACT Comments at 2-3; Smithville Comments at 2-3; PVTC 
Comments at 3; Van Buren Comments at 2-3; Wiggins Comments at 4; CTC 
Comments at 3; Ponderosa Comments at 2-3.
---------------------------------------------------------------------------

    193. Ericsson asserted that ``[a] substantial portion of that 
network (at a minimum, the radio access network, and in all likelihood, 
other network components as well) will be run, day-to-day, by the D 
Block licensee.'' Ericsson envisioned that the ``PSBL will need to 
interact regularly with the D Block licensee to ensure that the needs 
of the public safety organizations using the national public safety 
broadband network are satisfied, within the

[[Page 57788]]

technical and operational confines of the NSA and FCC rules.'' \427\ To 
that end, Ericsson argued that ``the D Block licensee would need to 
provide the PSBL with any reports needed to evaluate the effectiveness 
and proper operation of the priority access and preemption 
mechanisms.'' \428\ Additionally, Ericsson argued that ``the PSBL 
should be responsible for taking a leadership role in negotiations 
concerning the siting of facilities on lands owned or controlled by 
state and local governments, and regarding siting of facilities in 
cases where state and local government oppose the site.'' \429\
---------------------------------------------------------------------------

    \427\ Ericsson Comments at 30.
    \428\ Ericsson Comments at 30.
    \429\ Ericsson Comments at 30.
---------------------------------------------------------------------------

    194. Nextwave asserted that ``the PSST should be tasked with 
organizing, prioritizing, and addressing accordingly the varying 
broadband needs of the diverse public safety community it serves.'' 
\430\ In particular, Nextwave recommended that ``the FCC leave to the 
local and regional jurisdictions decisions with respect to standards-
based technologies to suit their specific needs, but direct the PSST to 
provide guidance on coordination of spectrum usage, minimum network 
performance requirements, permissible standards-based technologies with 
which the networks must be built to comply, and end-to-end 
interoperability.'' \431\ Furthermore, Nextwave suggested that ``the 
FCC require the PSST, as licensee of the public safety broadband 
spectrum, to create and provide an Interoperability Plan to public 
safety entities for their reference in building regional networks.'' 
\432\
---------------------------------------------------------------------------

    \430\ Nextwave Reply Comments at 8.
    \431\ Nextwave Reply Comments at 8-9.
    \432\ Nextwave Reply Comments at 9.
---------------------------------------------------------------------------

    195. Council Tree contended that ``the Public Safety Broadband 
Licensee should be required to operate as an accountable MVNO with 
respect to public safety users.'' \433\ Council Tree argued that such 
action is necessary because ``the MVNO will serve as the appropriate 
vehicle through which public safety users may commit to certain minimum 
volume purchase requirements,'' \434\ and ``the MVNO structure provides 
a substantial service to the D Block licensee by taking on the 
administrative responsibility associated with meeting the unique 
service needs of public safety users.'' \435\ Additionally, Council 
Tree argued that ``[s]hifting responsibilities to an MVNO directed by 
the Public Safety Broadband Licensee also simplifies key elements in 
the NSA and should facilitate negotiation of the agreement.'' \436\
---------------------------------------------------------------------------

    \433\ Council Tree Comments at 21.
    \434\ Council Tree Comments at 21.
    \435\ Council Tree Comments at 22.
    \436\ Council Tree Comments at 22.
---------------------------------------------------------------------------

    196. Discussion. As an initial matter, the Commission does not 
propose any changes to the responsibilities of the Public Safety 
Broadband Licensee summarized above that were established by the Second 
Report and Order. Thus, the Public Safety Broadband Licensee will 
continue to be responsible for such activities as administration of 
access to the nationwide public safety broadband network by public 
safety entities, representation of the public safety community in 
negotiating the NSA with the D Block licensee(s), interaction with 
equipment vendors and approval of equipment and applications, and 
administration of the narrowband relocation process.
    197. However, the Commission tentatively concludes that further 
clarification as to the responsibilities and obligations of the Public 
Safety Broadband Licensee would help define the overall 700 MHz Public/
Private Partnership model and provide greater certainty to both the 
Public Safety Broadband Licensee and potential bidders for the D Block 
license(s) regarding their respective roles. The Commission begins with 
the premise that the responsibilities and obligations of the Public 
Safety Broadband Licensee do not include the Public Safety Broadband 
Licensee assuming or duplicating any of the day-to-day network 
monitoring, operations, customer care, or related functions that are 
inherent in the D Block licensee's responsibilities to construct and 
operate the shared network infrastructure. In the context of the 700 
MHz Public/Private Partnership model, the Commission does not envision 
that the Public Safety Broadband Licensee would operate as an MVNO or 
that it would exercise actual day-to-day operational control over the 
shared broadband network. While the Public Safety Broadband Licensee is 
charged with administering access to the shared broadband network by 
public safety users, the Commission's view it as carrying out these 
functions through the establishment of priority access, service levels, 
and related requirements within the NSA process, as opposed to 
providing any form of ongoing day-to-day billing or customer care 
functions to public safety entities desiring to access the shared 
broadband network.
    198. The Commission agrees with commenters who observed that 
allowing the Public Safety Broadband Licensee to duplicate some or all 
of the operational functions for which the D Block licensee, as the 
service provider, inherently is responsible, would effectively render 
the Public Safety Broadband Licensee a reseller of services, which 
could inject an inappropriate and impermissible ``business'' or 
``profit'' motive into the Public Safety Broadband Licensee's 
structure.\437\ Such duplication of functions also would unnecessarily 
increase the Public Safety Broadband Licensee's costs.
---------------------------------------------------------------------------

    \437\ See, e.g., Big Bend Telephone Company Comments at 3.
---------------------------------------------------------------------------

    199. At the same time, the Commission agrees with commenters who 
observed that the Public Safety Broadband Licensee should have the 
ability to monitor the services provided by the D Block licensee(s) to 
ensure that priority access and other operational requirements 
(including the establishment of service levels and the authentication 
and authorization of public safety users) are being provided in 
accordance with the NSA's terms, and should be empowered to work with 
the D Block licensee to promptly correct any deficiencies. The 
Commission expects that the Public Safety Broadband Licensee will be 
able to perform this function through review of monthly usage reports 
supplied by the D Block licensee(s), and that such monitoring will 
enable the Public Safety Broadband Licensee to work with the D Block 
licensee(s) to develop improved ways to meet the evolving usage needs 
of the public safety community. The Commission also believes that the 
Public Safety Broadband Licensee can effectively carry out its 
monitoring role without requiring the D Block licensee to support real-
time monitoring by the PSBL or to provide the PSBL with access rights 
to the D Block licensee's NOC and/or data centers.
    200. The Commission believes that the role of the Public Safety 
Broadband Licensee, as discussed in the Second Report and Order and as 
further clarified above, is fully consistent with the requirement under 
Section 310(d) of the Communications Act that it exercise de facto 
control over use of the public safety broadband spectrum. Although the 
Public Safety Broadband Licensee will not exercise day-to-day 
operational control of the shared broadband network, the Commission has 
previously stated that operational control of facilities is not a 
statutory requirement to establish control, so long as the licensee 
retains ultimate control over use of the licensed spectrum.\438\ In

[[Page 57789]]

this case, the Public Safety Broadband Licensee will exercise control 
over use of the public spectrum by defining and administering the terms 
of access and use of the spectrum, maintaining an active monitoring and 
oversight role based on the monthly reports provided by the D Block 
licensee, and exercising its other responsibilities enumerated above 
and in the Second Report and Order. The Public Safety Broadband 
Licensee will also have the authority to act on information provided in 
the D Block licensee's reports, if necessary, by bringing a complaint 
or petition for declaratory ruling to the Commission.\439\ This 
authority will enable the Public Safety Broadband Licensee to carry out 
its core responsibility to ensure compliance with Commission rules and 
policies by users of the public safety broadband spectrum.
---------------------------------------------------------------------------

    \438\ See generally Promoting Efficient Use of Spectrum Through 
the Elimination of Barriers to the Development of Secondary Markets, 
WT Docket 00-230, Report and Order and Further Notice of Proposed 
Rulemaking, 18 FCC Rcd 20604 (2003) (concluding that operational 
control of facilities was not a prerequisite for establishing that a 
licensee retained de facto control under Section 310(d) in the 
spectrum leasing context).
    \439\ See Second Report and Order, 22 FCC Rcd at 15470, para. 
528.
---------------------------------------------------------------------------

    201. Accordingly, the Commission tentatively concludes that the 
Commission should clarify the Public Safety Broadband Licensee's 
responsibilities with respect to ``general administrator of access,'' 
as well as the requirement (codified in existing rule sections 
27.1305(h) and 90.1405(h)) that the network incorporate ``operational 
control'' as follows. The Commission proposes that the D Block 
licensee(s) build into the shared broadband network infrastructure a 
capability to provide monthly usage reports covering network capacity 
and priority access so that the Public Safety Broadband Licensee can 
monitor usage and provide appropriate feedback to the D Block 
licensee(s) on operational elements of the network. The Commission 
further proposes that the Public Safety Broadband Licensee utilize 
these reports to carry out its role in administering access to the 
shared broadband network in consultation with local, regional and state 
public safety agencies. The Public Safety Broadband Licensee also may 
administer access in terms of establishing access priorities and 
service levels, authenticating and authorizing public safety users, 
approving equipment and applications for public safety end users of the 
network, and interacting with the public safety community to facilitate 
an understanding of the opportunities made possible by subscribing to 
the interoperable shared broadband network and the procedures for doing 
so.
6. Post-Auction Process for Establishing a Network Sharing Agreement
    202. Background. In the Second FNPRM, the Commission sought comment 
on whether and how to modify the post-auction process, including 
provisions governing negotiations between a winning D Block bidder and 
the Public Safety Broadband Licensee for a Network Sharing Agreement. 
The Commission sought comment on whether modifications to the process 
would create greater incentives for the D Block winner and the PSBL to 
negotiate the terms of the NSA in good faith, while reasonably 
protecting their respective interests. In particular, comment was 
sought regarding what consequences following failure to negotiate an 
NSA would provide the best set of incentives for effective negotiation. 
For example, such consequences could include offering a D Block license 
to the next highest bidder, as well as possibly requiring the initial D 
Block winner to cover the PSBL's costs associated with the unsuccessful 
negotiations; or conducting a new auction, with or without the winner 
of the initial auction; or conducting a new auction with licenses no 
longer subject to the Public Private Partnership, with or without the 
winner of the initial auction and/or with parties previously excluded 
from the initial auction; and/or subjecting the D Block winning bidder 
to default payments, either dependent on or irrespective of its good 
faith in conducting the negotiations.
    203. Discussion. In this section, the Commission tentatively 
concludes that the public interest in achieving a nationwide 
interoperable public safety broadband network following bidding for 
alternative D Block licenses will be served best by making no provision 
at this time for lifting the Public Private Partnership conditions 
following such bidding. The Commission further tentatively concludes 
that the Commission should adopt a rule providing that if a winning 
bidder should for any reason not be assigned a license following an 
auction of D Block licenses subject to the Public Private Partnership 
Conditions, including due to a failure to negotiate an NSA, the 
Commission shall offer to the other bidder(s) with the next highest 
bid(s) on the license(s) any license that was not assigned. The 
Commission directs the Wireless Telecommunications Bureau to specify 
the circumstances in which the Commission may make such an offer in the 
context of the final procedures adopted for any auction of D Block 
licenses.
    204. The Commission's separate tentative conclusion to offer 
multiple regional licenses for the D Block, in addition to a nationwide 
license, presents the possibility that separate NSAs may apply to 
separate licenses. The Commission tentatively concludes that the 
Commission should review and, if in the public interest, may accept 
NSAs for some licenses, even if acceptable NSAs are not submitted with 
respect to all licenses.
    205. The Commission tentatively concludes that the Commission 
should continue to provide for Commission resolution of any impasse 
between the parties negotiating any NSA. The Commission further 
tentatively concludes that a winning D Block bidder shall not be 
subject to a default payment in the event there ultimately is no 
agreement on the terms of the NSA, provided that it accepts any 
Commission resolution of an impasse in the process of negotiating the 
NSA.
    206. The unique requirement for the D Block that winning bidders to 
negotiate the terms of an NSA with the PSBL following bidding for the 
licenses but before being granted the license may produce circumstances 
not contemplated by the Commission's current rules for processing a 
winning bidder's license application. For example, the Commission's 
current rules do not contemplate denial of a winning bidder's 
application without finding the applicant is either disqualified or in 
default or both.\440\ As discussed herein, however, there may be 
circumstances in which the Commission will not assign the license even 
though the winning D Block bidder has not defaulted and, but for the 
absence of an acceptable NSA, might otherwise be qualified to be 
licensed. Accordingly, the Commission proposes a rule specific to the D 
Block setting forth post-auction application procedures consistent with 
the tentative conclusions reached in this 700 MHz Third FNPRM.
---------------------------------------------------------------------------

    \440\ Cf. 47 CFR 1.2109(c).
---------------------------------------------------------------------------

    207. The Commission tentatively concludes that the current record 
does not demonstrate that any other alternatives for determining the 
terms of the NSA, either through processes modeled on a Request for 
Proposal mechanism or other proposals to finalize the NSA prior to an 
auction, will better serve the public interest than the Commission's 
initial proposal that the winning bidder(s) in an auction to license 
the D Block should negotiate the terms of the NSA with the PSBL. The 
Commission seeks comment on all the tentative conclusions with respect 
to the process for negotiating the NSA.

[[Page 57790]]

    208. Finally, given the proposal to offer the D Block on a regional 
basis, and the other significant changes proposed herein, the 
Commission seeks comment on whether the Commission should adopt further 
changes to the process for establishing the NSA.\441\ For example, the 
Commission seeks comment on whether the Commission should reduce or 
modify the current negotiation reporting requirements, which obligate 
the Public Safety Broadband Licensee and the D Block winning bidder to 
jointly provide detailed reports on a monthly basis on the progress of 
the negotiations.
---------------------------------------------------------------------------

    \441\ 47 CFR 27.1315.
---------------------------------------------------------------------------

a. Action if All or Some D Block Winning Bidders Are Not Assigned 
Licenses
    209. Comments. Several parties, predominantly public safety 
entities, contend that any Commission commitment to license D Block 
without the Public Private Partnership under any subsequent 
circumstances might undermine the chances for a successful Public 
Private Partnership. Specifically, APCO notes that providing for 
subsequent action on the D Block in the event there is no winning 
bidder after an auction subject to the Public Private Partnership may 
create incentives for parties that prefer those other alternatives in 
order to prevent licensing pursuant to the Public Private 
Partnership.\442\ NATOA et al. concurs, as does PSST.\443\ 
TeleCommUnity asserts that any such provision ``may guarantee a failed 
second auction'' to license the D Block pursuant to the Public Private 
Partnership.\444\ Equipment manufacturer Ericson echoes these public 
safety commenters.\445\
---------------------------------------------------------------------------

    \442\ APCO Comments at 40.
    \443\ NATOA et al.Comments at 23, PSST Comments at 43.
    \444\ TeleCommUnity Comments at 15.
    \445\ Ericsson Comments at 32.
---------------------------------------------------------------------------

    210. With respect to the particular scenario in which a winning 
bidder is unable to negotiate a Network Sharing Agreement, PSST 
supports offering the license to a next highest bidder.\446\ Ericson 
also advocates this approach, as the most direct way to achieve the 
benefits of the Public Private Partnership, despite the initial 
winner's failure to negotiate an NSA.\447\
---------------------------------------------------------------------------

    \446\ PSST Comments at 42.
    \447\ Ericsson Comments at 32.
---------------------------------------------------------------------------

    211. In opposition, commercial provider MetroPCS, which advocates 
abandoning the Public Private Partnership model outright, insists that 
at a minimum the Commission should provide for an immediate subsequent 
auction to license the D Block without the Public Private Partnership 
in the event an auction subject to the Public Private Partnership does 
not succeed.\448\ MetroPCS advocates that the Commission license the D 
Block without the Public Private Partnership by assigning licenses by 
CMA and without accepting package, or combinatorial, bids.\449\
---------------------------------------------------------------------------

    \448\ MetroPCS Comments at 7.
    \449\ MetroPCS Comments at 20-23.
---------------------------------------------------------------------------

    212. Discussion. The Commission tentatively concludes that the 
public interest in achieving a nationwide interoperable public safety 
broadband network following the next auction of D Block licenses will 
be served best by making no provision for lifting the Public Private 
Partnership conditions at this time. Experience gained from an attempt 
to establish a successful Public Private Partnership following the next 
auction may help chart the future course of the D Block spectrum. 
Moreover, achieving a successful nationwide interoperable public safety 
broadband network is more important than accelerating the licensing of 
the D Block.
    213. A number of commenters support offering the D Block license to 
the next highest bidder following any failure to negotiate an NSA. 
These comments focus on providing a winning D Block bidder with the 
best incentives to negotiate an NSA. However, the public interest in 
achieving a nationwide interoperable public safety broadband network as 
soon as possible also will be furthered if, in the event the Commission 
determines it will not assign a license or license(s) to a winning 
bidder for any reason, such as the winning bidder's default for failure 
to make post-auction payments or disqualification due to failure to 
meet the Commission's requirements of a D Block licensee, the 
Commission offers the relevant license(s) to the other bidder(s) that 
placed the next highest bid on the same license(s). Consequently, the 
Commission considers more generally under what circumstances, if any, 
the Commission may offer a license to another bidder without conducting 
a second auction.
    214. Pursuant to its current rules, the Commission has authority to 
offer licenses to bidders with the next highest bids without re-opening 
bidding but only in auctions in which a disqualified winning bidder's 
bid could not have helped determine the winning bids on other licenses. 
The Commission's rules currently provide discretion to make such an 
offer in Commission auctions without package bidding, while precluding 
it from doing so in auctions with package bidding.\450\ The 
Commission's rules make this distinction because in an auction with 
package bidding, absent the disqualified bid(s) the next highest bid(s) 
of other bidder(s) for the same license(s) or package may not have 
become a winning bid and a group of other bids for different packages 
of licenses might have become the winning bids. In that case, the 
disqualified bidder's bid helped determine not only the winner of the 
licenses subject to the disqualified bid but also the winner of other 
licenses.
---------------------------------------------------------------------------

    \450\ See 47 CFR 1.2109(c) (in the event a winning bidder ``is 
found unqualified to be a licensee * * * the Commission may * * * 
offer [the license] to the other highest bidders (in descending 
order) at their final bids.'') The Commission clarify here that the 
imposition of liability for a default payment, referenced in the 
first sentence of Section 1.2109(c), is not a precondition to the 
Commission offering the license to the next highest bidder. Rather, 
once a winning bidder is found ``unqualified,'' which in the context 
of the D Block would include a finding that the winning bidder has 
been unable to negotiate a Network Sharing Agreement with the PSBL 
that the Commission will accept, the Commission then ``may * * * 
offer [the license] to the other highest bidders,'' regardless of 
whether the winning bidder is liable for a default payment.
---------------------------------------------------------------------------

    215. Given the public interest at stake in the D Block being used 
to deploy rapidly a nationwide interoperable broadband network for 
public safety use, the Commission tentatively concludes that the 
Commission should have authority to offer a license to the next highest 
bidder if a winning bidder in an auction of alternative D Block 
licenses subsequently defaults or is disqualified. The offer will be 
for the same license won by the initial winning bidder, so that any 
offer for a PSR license will be made to the next highest bidder for a 
license using the same technology platform, even if higher bids were 
placed on a license for the same PSR using a different technology 
platform or a set of bids for alternative licenses would have won 
absent the subsequently defaulted or disqualified bid. Moreover, the 
Commission tentatively concludes that the Commission should be able 
make such an offer whether bidding on alternative licenses was 
conducted with or without package bidding. The Commission will adopt a 
rule specifically for the D Block incorporating these provisions.
    216. The Commission reaches this tentative conclusion while 
recognizing that simultaneously offering alternative licenses for the D 
Block has similarities to a package bidding auction, even absent 
package bidding as defined in the Commission's rules.\451\ For example, 
if bidders on regional licenses collectively outbid a bidder for the 
alternative

[[Page 57791]]

nationwide license, it is possible that the bid on one of those 
regional licenses affected the outcome for all the other regions by 
making the aggregate bid for the regional licenses greater than the bid 
for the nationwide license.\452\ However, given the importance of 
rapidly licensing the D Block, the Commission tentatively concludes 
that, following the simultaneous offer of alternative D Block licenses, 
whether or not package bidding is available, if the Commission 
determines that it will not assign any license(s) to an initial winning 
bidder, the Commission may offer the same license(s) to the next 
highest bidder, even if a different set of licenses covering the same 
population would have had a higher aggregate bid in the absence of the 
initial winning bid. The Commission seeks comment on the Commission's 
tentative conclusion and whether any alternative would better serve the 
purposes for making such offers.
---------------------------------------------------------------------------

    \451\ See 47 CFR 1.2103(b).
    \452\ This will not always be the case. A post-auction 
disqualification of one winning bidder in an auction of alternative 
licenses or a package bidding auction may not affect other winning 
bidders for other licenses. For example, bidders for a group of 
single licenses might have prevailed against a bid on an alternative 
nationwide license--or package of single licenses--even if one of 
the original winning bids is replaced by a second highest bid on a 
single license. The Commission's standard package bidding rule 
applies a bright line for all package bidding auctions, regardless 
of the particular bids in the auction.
---------------------------------------------------------------------------

    217. The Commission tentatively concludes that it would not be 
appropriate to either require the Commission to offer the license to 
the next highest bidder or to require the next highest bidder to accept 
the license. The Commission should retain flexibility to utilize any 
information obtained from the efforts of an initial D Block winning 
bidder and the PSBL to negotiate an NSA, which might suggest a superior 
course to simply offering the license to the next highest bidder. 
Similarly, not requiring the next highest bidder to accept the license 
provides that party with the flexibility to consider information 
developed during the initial negotiations, which may avoid further 
unsuccessful negotiations for the NSA. The Commission seeks comment on 
these tentative conclusions.
b. Separate NSAs for Different Licenses
    218. Given the Commission's tentative conclusion to offer regional 
licenses for the D Block, the Commission also must consider whether all 
the winning bidders for D Block licenses must successfully negotiate 
NSAs, either jointly or individually, in order for any of them to be 
licensed, or whether the Commission may license a subset of winning 
bidders based on their success in negotiating NSAs notwithstanding the 
inability of other winning bidders to do so. The Commission tentatively 
concludes that the Commission may accept NSAs that are negotiated 
between the PSBL and a subset of winning bidders. When negotiating NSAs 
with winning bidders in a subset of areas to be licensed, the PSBL 
should take into account the flexibility needed in the future to meet 
the needs of other unlicensed areas. This should prevent unnecessary 
limitations being imposed on future NSAs for unlicensed areas as a 
result of NSAs for areas licensed first. The Commission further notes 
that the Commission may take such concerns into account in determining 
whether to accept NSAs in areas where the winning bidder and the PSBL 
are able to come to agreement.
c. Liabilities of D Block Winning Bidders That Fail To Negotiate an NSA
    219. Almost all commenters addressing whether to assess a default 
payment on a D Block winner that fails to negotiate an NSA would, at 
least in some circumstances, eliminate the default payment in the event 
a winning bidder is unable to negotiate an NSA. PSST believes that 
replacing the default payment with an automatic offer to the second 
highest bidder will serve the purposes underlying the Commission's 
default payment rule.\453\ APCO contends that ``[a]bsent bad faith, the 
D Block auction winner should not pay a substantial financial penalty 
if NSA negotiations fail (though some cost should be imposed to 
encourage serious good faith negotiations).'' \454\ While NPSTC 
believes that the default payment rule, like a reserve price, can serve 
to help ensure that D Block participants possess the financial, 
technical and managerial resources to perform responsibly, NPTSC 
believes that the Commission should provide sufficient assurance 
through other means, in which case the default payment can be reduced 
or removed.\455\ NATOA et al. acknowledge the difficulty that large 
default payments may create for potential D Block applicants but stress 
the importance that any winning D Block bidder that does not negotiate 
in good faith should face ``significant'' penalty or forfeiture.\456\
---------------------------------------------------------------------------

    \453\ PSST Comments at 42.
    \454\ APCO Comments at 38.
    \455\ NPSTC Comments at 10.
    \456\ NATOA et al. Comments at 22.
---------------------------------------------------------------------------

    220. AT&T proposes that a winning bidder should only be subjected 
to default payments if it acted in bad faith and that it should enjoy a 
presumption of good faith.\457\ In addition, AT&T suggests that the 
Commission stipulate that any proposal satisfying minimum requirements 
delineated by the Commission would be deemed per se to be in good 
faith.\458\ Council Tree Communications agrees that absent bad faith, 
no default payment should be required.\459\ Northrop Grumman asserts 
that the Commission should relieve any winning bidder that negotiates 
the NSA in good faith from any default liability in the event no 
agreement can be reached, but does not discuss the standard for 
determining ``good faith.'' \460\
---------------------------------------------------------------------------

    \457\ AT&T Comments at 23.
    \458\ AT&T Comments at 23.
    \459\ Council Tree Comments at 17. It asserts that if, however, 
the Commission retains the default payment in all circumstances, 
then only AT&T, Sprint Nextel, T-Mobile, and Verizon Wireless should 
be subject to its provisions. Council Tree Comments at 20.
    \460\ Northrop Grumman Comments at 9.
---------------------------------------------------------------------------

    221. MetroPCS, however, would retain the default payment for a 
winning D Block bidder that fails to negotiate an NSA, apparently 
regardless of the bidder's good faith.\461\
---------------------------------------------------------------------------

    \461\ MetroPCS Comments at 34.
---------------------------------------------------------------------------

    222. Discussion. The Commission tentatively concludes if the 
Commission dismisses a winning bidder's long-form application solely 
for the lack of a Commission-approved NSA, a winning D Block bidder 
should only be subject to a default payment if it chooses not to accept 
the Commission's resolutions to any and all impasses in the process of 
negotiating an NSA.\462\ Accordingly, if the Commission does not 
mandate a resolution to an impasse for any reason, or the PSBL refuses 
to accept a Commission resolution after the D Block bidder does so, the 
winning D Block bidder will not be subject to a default payment. Given 
the importance of developing a nationwide interoperable broadband 
network usable for public safety, the Commission will attempt to 
resolve any disputes between a winning D Block bidder and the PSBL with 
respect to the terms of the NSA. The Commission will use its discretion 
to determine how best to take into account the winning D Block bidder's 
business plan, as well as the requirements of public safety users, when 
mandating a resolution. The winning D Block bidder will be subject to a 
default payment if it refuses to accept any resolution mandated by the 
Commission. In the

[[Page 57792]]

event that the Commission does not mandate a resolution, or if the D 
Block winner accepts the Commission's resolution but the PSBL declines 
to do so, the D Block winning bidder will not be subject to a default 
payment. Thus, a D Block winning bidder only will be exposed to default 
payment liability from a negotiation failure if the Commission mandates 
a resolution that the D Block winner chooses not to accept. The D Block 
winner's subjective ``good faith'' or ``bad faith'' will not play a 
role in determining default payment liability. The Commission 
tentatively concludes that this standard should sufficiently protect D 
Block bidders against any risk that the PSBL has requirements for the 
NSA that cannot be reasonably accommodated as part of the D Block 
winner's business plan. Employing a sweeping ``good faith'' exception 
to the application of the Commission default rule as advocated by some 
commenters would place the Commission in the untenable position of 
having to evaluate the D block winning bidder's motives and business 
judgments, which could significantly delay the NSA resolution process. 
Instead, by placing the ultimate decision of acceptance of the 
negotiated NSA or default in the hands of the D Block winning bidder, 
it will have the ability to weigh its choices and reach a determination 
of commercial viability.
---------------------------------------------------------------------------

    \462\ The Commission's competitive bidding rules and precedents 
governing post-auction defaults would apply to bidders for D Block 
licenses in other contexts, e.g., failure to make post-auction 
payments, failure to file an acceptable long-form application, etc.
---------------------------------------------------------------------------

    223. Although the Commission tentatively concludes that it should 
not use a ``good faith'' standard in connection with imposing liability 
on D Block winning bidders based solely on a failure to negotiate an 
NSA, the Commission asks commenters whether there is another reasonable 
alternative to its proposal to impose liability based on whether a D 
Block winning bidder chooses to accept the Commission's resolution of 
any negotiation disputes. Further, the Commission seeks comment on any 
solutions to the difficulties of applying a ``good faith'' standard. 
The Commission also sought comment on whether any winning bidder unable 
to negotiate an NSA with the PSBL that was acceptable to the Commission 
should be required to pay the PSBL's costs arising from the 
unsuccessful negotiations. The Commission tentatively concludes that 
the Commission should not impose such a requirement. While it might 
immunize the PSBL against otherwise unnecessary expense, the overall 
impact on the D Block winning bidders' incentives to negotiate would be 
minimal. Finally, the administrative process of accounting for expenses 
directly related to the negotiation might needlessly complicate the 
negotiation process.
d. NSA Negotiation Process
    224. The few comments directly addressing the negotiating process 
within the context of the Commission's proposal for negotiation of an 
NSA between the D Block winning bidder and the PSBL are divided on the 
Commission's role. According to APCO, ``it is important that the FCC 
continue to be the final arbiter of disputes.'' \463\ Northrop Grumman, 
in contrast, argues that the Commission should assure a winning D Block 
bidder a ``way out'' by eliminating any binding arbitration of disputes 
with the PSBL when negotiating the NSA.\464\
---------------------------------------------------------------------------

    \463\ APCO Comments at 38.
    \464\ Northrop Grumman Comments at 9.
---------------------------------------------------------------------------

    225. The City of Philadelphia contends that ``the Commission should 
require the PSBL to establish and delegate authority to regional 
entities comprised of public safety agencies to negotiate terms of the 
NSA that affect their operations, including commercial use of public 
safety spectrum, priority access for public safety communications, and 
preemption in cases of local or regional emergency.'' \465\
---------------------------------------------------------------------------

    \465\ Philadelphia Comments at 3-4.
---------------------------------------------------------------------------

    226. Discussion. The Commission tentatively concludes that the 
Commission should continue to provide for final Commission resolution 
of any impasse between the parties negotiating the NSA. While the 
Commission concurs with the view that winning D Block bidder(s) should 
have a ``way out'' without the imposition of liability in the event 
that it proves impossible to negotiate an acceptable NSA, the 
appropriate ``way out'' is to provide for the Commission to determine 
the final resolution of any dispute in connection with the negotiation 
of the NSA, including, should the Commission find it in the public 
interest, requiring the parties to accept specified terms resolving the 
dispute. The Commission's resolution will be final. The Commission 
notes that should the Commission conclude that it is unable to arrive 
at a resolution that the Commission believes is reasonable to require 
the parties to adopt, the Commission's tentative conclusion is that the 
Commission will not impose default payment obligations on the winning D 
Block bidder. In short, a winning D Block bidder unable to reach 
agreement with the PSBL need only prove its case to the Commission in 
order to be relieved of any liability for failure to negotiate the NSA. 
The Commission think this ``way out'' provides the best balance of 
incentives to negotiate the NSA in good faith, rather than leaving the 
parties free to reject attempts at resolving any disputes.
    227. With respect to the issue of involving local entities in the 
negotiation of the NSA, the Commission disagrees with Philadelphia's 
proposal that the PSBL should delegate authority to regional or local 
authorities to negotiate terms with the D Block licensee. One of the 
primary roles of the PSBL is to serve as the single public safety 
representative for purposes of negotiating the NSA. Permitting multiple 
public safety parties to conduct simultaneous NSA negotiations with the 
D Block licensee would be inefficient and unwieldly, and would detract 
from the ultimate goal of achieving a nationwide interoperable 
broadband network for the entire public safety community. At the same 
time, the PSBL must carry out its responsibility to negotiate the NSA 
in a manner that is broadly representative of the public safety 
community. Accordingly, the Commission tentatively concludes that, 
while it would be contrary to the PSBL's primary NSA negotiation 
responsibility to allow individual public safety entities to negotiate 
directly with the D Block auction winner(s), the PSBL must reasonably 
afford and accommodate local public safety input into its 
deliberations, and in doing so, balance local needs with the rules and 
policies ultimately adopted in this proceeding. Moreover, the 
limitation on negotiation by local agencies does not preclude them from 
contributing to the construction of the network with financial or other 
resources where they are able to do so. Thus, the Commission 
tentatively concludes that local public safety agencies, the PSBL, and 
the winning bidder, where they are able to agree to particular terms 
for local contribution to the network that expand upon a baseline 
agreement, will be free to do so and incorporate those terms within the 
larger NSA.
e. RFPs and Other Alternatives for Determining NSA Terms
    228. Background. In the 700 MHz Second FNPRM, the Commission sought 
comment on whether a request for proposal (RFP) approach in conjunction 
with an auction might serve to establish the terms of the Network 
Sharing Agreement. More specifically, the Commission sought comment on 
whether to conduct an auction and then have a number of high bidders 
submit proposals in response to an RFP outlining the needs of the PSBL 
or,

[[Page 57793]]

alternatively, whether to issue an RFP outlining public safety needs, 
then use one of the proposals submitted in response to establish rules 
on the terms of an NSA, and finally conduct an auction open to all 
parties interested in complying with those terms.
(i) RFP Approaches
    229. Comments. Televate proposes an approach along the lines of the 
Commission's first RFP-related suggestion. More specifically, Televate 
proposes that the Commission accept proposals to satisfy public safety 
needs from all bidders willing to meet a minimum bid of $150 million 
and then score the proposals based on the weight given to various 
proposal features, including the bid amount.\466\ The applicant with 
the highest score would then negotiate the final NSA details with the 
PSBL.\467\ As part of its proposal for licensing the D Block, Televate 
proposes that bidders unable to negotiate an NSA would not be subject 
to a penalty.\468\
---------------------------------------------------------------------------

    \466\ Televate Comments at 5.
    \467\ Televate Comments at 5.
    \468\ Televate Comments at 6.
---------------------------------------------------------------------------

    230. NTCH, a PCS provider and tower development company, proposes 
an RFP-related approach roughly along the lines of the Commission's 
second suggestion. NTCH suggests that would-be ``network managers'' 
negotiate alternative NSAs with the PSBL and subsequently applicants 
for licenses would place bids on licenses, specifying with which of the 
potential NSAs the bidder will comply.\469\ High bids for licenses 
complying with the same NSA would be aggregated and compared with 
aggregated high bids for licenses complying with the terms of other 
NSAs. The NSA receiving the highest aggregate amount of license bids 
would win. The network manager for that NSA would undertake to build 
out any licenses not assigned to other parties based on the 
bidding.\470\
---------------------------------------------------------------------------

    \469\ NTCH Comments at 5.
    \470\ NTCH Comments at 5.
---------------------------------------------------------------------------

    231. Leap proposes that the Commission use a contracting process 
between public safety users and the D Block licensee to determine what 
network requirements the D Block licensee will satisfy beyond those 
required by the Commission's commercial rules. Leap appears to advocate 
that the Commission modify its standard 700 MHz rules by imposing a 
requirement that the D Block licensee make its network available to 
public safety, via the PSBL, and negotiate in good faith with public 
safety users, via the PSBL, regarding any network improvements that the 
public safety users may require, with the cost of such improvements to 
be financed by the public safety users.\471\
---------------------------------------------------------------------------

    \471\ Leap Comments at 12-13.
---------------------------------------------------------------------------

    232. AT&T, Verizon Wireless, and others promote a non-auction RFP 
approach to achieving the goal of an interoperable nationwide 
network.\472\
---------------------------------------------------------------------------

    \472\ See, generally, AT&T Comments, Verizon Wireless Comments.
---------------------------------------------------------------------------

    233. Discussion. As discussed elsewhere in this Third FNPRM, the 
Commission tentatively concludes that the detailed Public/Private 
Partnership proposal set out in this Third FNPRM remains the best 
option to achieve nationwide build-out of an interoperable broadband 
network for public safety entities, given the current absence of 
legislative appropriations for this purpose and the limited funding 
available to the public safety sector.\473\ The Commission finds that 
the RFP proposals submitted by parties in the record are not as likely 
to sustain the Commission's commitment to achieving a nationwide 
interoperable broadband network that meets public safety needs.
---------------------------------------------------------------------------

    \473\ The Commission notes that AT&T and Verizon Wireless state 
that their proposals conflict with our prior determination in the 
Second Report and Order that Section 337 of the Communications Act 
requires that we license spectrum allocated for commercial purposes 
in the upper 700 MHz band (which includes the D Block) by 
competitive bidding, and that AT&T asserts that Congress would be 
willing to revise the statute to permit an alternative approach. See 
AT&T Comments at 7; see also Verizon Wireless Reply Comments at 2.
---------------------------------------------------------------------------

    234. For instance, the Commission tentatively concludes that 
Televate and NTCH have not demonstrated that their proposals are 
workable in their current form. For example, Televate's proposal, while 
generally describing the relative percentage weight to be applied to 
different portions of bidder proposals, does not provide any guidance 
on the difficult question of how to actually score each proposal. With 
respect to NTCH's proposals, the Commission is not persuaded that the 
Public Safety Broadband Licensee will be able to negotiate final terms 
of multiple NSAs with various network operators in the absence of the 
actual licensees who are to build and construct the ultimate network. 
Accordingly, any advantages these proposals might have are hypothetical 
and insufficient for us to adopt them in place of the existing 
structure of licensing the D Block and having the NSA determined by 
negotiation between winning bidder(s) and the Public Safety Broadband 
Licensee.
    235. Finally, the Commission tentatively concludes that Leap's 
proposal offers insufficient assurance that the D Block licensee will 
in fact negotiate terms that will result in an interoperable broadband 
network that meets the needs of public safety on a nationwide basis. 
The most likely outcome of adopting Leap's proposal seems to be a 
nationwide interoperable commercial network supplemented by a patchwork 
of regional arrangements meeting the needs of public safety to the 
extent that local or regional public safety users are able to finance 
network modifications required to meet their needs. Given that the 
entire premise of the Public Private Partnership is that public safety 
users lack sufficient financing to meet their needs, the Commission 
tentatively concludes that Leap's proposal will not serve the public 
interest.
(ii) Alternative Commenter Proposals
    236. Comments. In addition to RFP approaches, several commenters 
propose alternative approaches to establishing an NSA that diverge from 
the Commission's initial proposal that a winning D Block bidder and the 
PSBL negotiate an NSA after an auction to license the D Block. The 
Mercatus Center at George Mason University proposes that the NSA be 
negotiated prior to auctioning the license, ``through a negotiated 
rulemaking,'' with the Commission establishing a ``negotiation 
committee composed of the current members of the PSBL and the 
representatives from potential bidders in the auction.'' \474\
---------------------------------------------------------------------------

    \474\ Mercatus Center Comments at 3.
---------------------------------------------------------------------------

    237. United States Cellular argues that the PSBL, in conjunction 
with the public safety service providers, should establish the NSA 
prior to auction, subject to amendments thereafter.\475\ In this 
context, with the NSA established pre-auction, United States Cellular 
favors subjecting any D Block winner that does not execute an NSA to 
the Commission's default payment rules.\476\
---------------------------------------------------------------------------

    \475\ US Cellular Comments at ii-iii.
    \476\ US Cellular Comments at 21.
---------------------------------------------------------------------------

    238. Discussion. The Commission tentatively concludes that the 
public interest in achieving a nationwide interoperable broadband 
network would be best served by accepting bids for D Block licenses 
prior to negotiating the terms of the NSA. The Commission therefore 
declines to adopt these alternative proposals for determining the terms 
of the NSA prior to auction. As reflected in the Draft Network Sharing 
Agreement accompanying this Third FNPRM, with the revised rules 
proposed herein, the Commission provides considerable additional 
certainty as to the ``baseline'' terms of

[[Page 57794]]

the NSA, rendering full negotiation of the NSA in advance of auction 
unnecessary. Thus, all key baseline requirements to be covered by the 
NSA have been either defined or identified prior to auction, thereby 
providing a level of certainty to prospective bidders and ensuring 
uniformity and consistency among regional networks in the event 
regional licenses ultimately are implemented. While any given bidder 
for a D Block license would prefer to have all the terms of the NSA 
known prior to making its bid, the Commission has tentatively concluded 
that, with respect to additional matters to be covered by the NSA, 
negotiation between a winning bidder and the PSBL will be the most 
effective means to achieving the best result. Terms that are not 
essential to the successful operation of an NSA may nevertheless be 
important to the viability of one bidder's business plan--while 
irrelevant to another. Predetermining such NSA terms prior to 
conducting an auction risks precluding many potential applicants, as 
well as denying the winning bidder flexibility that may be essential to 
achieving a nationwide interoperable broadband network that meets the 
needs of public safety. The Commission seeks comment on the 
Commission's tentative conclusions.
7. Auction Issues
    239. Background. In the 700 MHz Second FNPRM, the Commission sought 
comment on four specific issues related to how to conduct an auction to 
license the D Block subject to the Public Private Partnership. In 
particular, the Commission requested that commenters address (1) 
whether to restrict eligibility of entities to participate in the D 
Block auction based on their access to other 700 MHz spectrum; (2) how 
to determine any reserve price in such an auction; (3) whether to adopt 
an exception to the impermissible material relationship rule for 
determination of designated entity eligibility; and (4) whether the 
Commission should modify the auction default payment rules. In 
addition, the Commission solicited comment on whether there were any 
other changes that should be made to the standard competitive bidding 
rules with respect to an auction to license the D Block.
    240. Summary. In this section, the Commission reaches several 
tentative conclusions with respect to issues related to the next 
auction to license the D Block. The Commission has tentatively 
concluded in this Third FNPRM that licenses subject to three 
alternative provisions regarding the technology platform with which the 
license(s) can be used should be offered. The three alternatives are as 
follows: a nationwide license with which the winning bidder may use a 
technology platform of its choice and two types of regional licenses, 
one in which the licenses are to be used with LTE technology and a 
second in which the licenses are to be used with WiMAX technology. The 
Commission tentatively concludes that the Commission will determine 
which of these alternative licenses to assign based on the results of 
an auction in which all of the licenses are offered simultaneously.
    241. Furthermore, the Commission tentatively concludes, in light of 
the Commission's primary goal of facilitating the development of a 
nationwide interoperable shared broadband network for the public-
private partnership, that it is in the public interest to award 
licenses to the highest bidder(s) for the license(s) in the technology 
platform alternative for which license(s) receiving bids cover the 
greatest aggregate population, provided that at least half of the 
nation's population is covered. If the provisionally winning bids do 
not cover at least half of the nation's population, the auction will be 
cancelled and no D Block licenses will be awarded based on the results 
of the auction. Thus, the high bid on the nationwide, technology 
platform alternative would be the provisionally winning bid over any 
aggregate bid(s) covering less population in the two sets of regional 
licenses until there are bids on all regions in at least one of the 
alternatives. In addition, if there are high bids for license(s) in 
more than one of the alternatives covering equal population, subject to 
the minimum coverage requirement, licenses will be awarded to high 
bidder(s) for license(s) in the technology platform alternative that 
receives the highest aggregate gross bid(s). Finally, to promote 
competition during the bidding for licenses covering as much population 
as possible, the Commission tentatively concludes that the Commission 
should direct the Wireless Telecommunications Bureau to establish 
auction procedures that will encourage bidding on licenses covering as 
much population as possible. For instance, with that goal in mind, the 
Commission intends that provision be made to reduce minimum opening 
bids on unsold regional licenses during bidding. In addition, in 
furtherance of the Commission's goal of achieving the widest possible 
population coverage, the Commission tentatively concludes that package 
bidding on the sets of regional licenses would be in the public 
interest and that the Commission should direct the Wireless 
Telecommunications Bureau to establish procedures for package bidding 
for this purpose.
    242. In addition, the tentative conclusions the Commission reach on 
issues raised in the 700 MHz Second FNPRM all reflect the Commission's 
determination that the public interest in achieving a nationwide 
interoperable broadband network that meets the needs of public safety 
can best be promoted by auction provisions that will increase the 
likelihood of active participation in an auction and competition for 
the licenses. Accordingly, the Commission tentatively concludes that 
the Commission should not adopt any restriction on the eligibility to 
bid for D Block licenses by any entity otherwise eligible to be a D 
Block licensee based on its spectrum holdings, whether in the 700 MHz 
band or any other band. The Commission also tentatively concludes that 
the Commission should direct the Wireless Telecommunications Bureau to 
not adopt a reserve price greater than any minimum opening bid or bids. 
The Commission further tentatively concludes that the Commission should 
codify the substance of the previously granted waiver of the 
impermissible material relationship rule with respect to designated 
entity eligibility in connection with the D Block. As discussed in 
connection with the process for establishing the NSA, the Commission 
tentatively has concluded the only change needed with respect to the 
Commission's default payment rules for purposes of the D Block is a 
modification that limits application of the default payment rule to 
specific circumstances following the failure to negotiate an NSA with 
the PSBL that is acceptable to the Commission. Finally, for a variety 
of reasons, the Commission tentatively concludes that the Commission 
should not make any of the additional changes to the Commission's 
competitive bidding rules proposed by commenters. The Commission seeks 
comment on all these tentative conclusions.
a. Determining Geographic Area and Platform Technology Through Auction
    243. The Commission tentatively concludes that rather than require 
that applicants offer service nationwide or that winners of regional 
licenses must use a predetermined technology platform, it is in the 
public interest to offer simultaneously at auction alternative 
licenses, specifically a single national license for use with a 
technology platform of the licensee's choice and regional licenses for 
use with one of two specific technology

[[Page 57795]]

platforms. Under this proposal, D Block license(s) would be awarded to 
the highest bidder(s) for license(s) in the technology platform 
alternative (i.e., either the nationwide license or one of the sets of 
regional licenses) for which there are high bid(s) on license(s) 
covering the greatest aggregate population, subject to conditions of 
grant, including long-form license application processing. In the event 
that there is a tie in the greatest aggregate population covered by 
licenses with high bids in more than one of the alternatives,\477\ the 
Commission would award license(s) to the high bidders for license(s) in 
the alternative that receives the highest aggregate gross bid(s). 
Furthermore, the Commission tentatively concludes that the Wireless 
Telecommunications Bureau should establish, as part of its pre-auction 
process, specific procedures to implement such an auction, including 
provisions for reducing minimum opening bids on regional licenses, that 
will promote bidding on licenses covering as much population as 
possible, and specific procedures to make available package bidding for 
groups of regional licenses using the same technology platforms.
---------------------------------------------------------------------------

    \477\ For purposes of determining the extent of population 
covered by licenses with high bids, the Commission would treat the 
license for the Gulf of Mexico PSR as having population. Thus, a bid 
on the nationwide license would cover a greater aggregate population 
than bids on a set of regional licenses that covered all PSRs other 
than the Gulf of Mexico PSR. Similarly, bids on one set of regional 
licenses that include a bid on the Gulf of Mexico PSR license will 
cover a greater aggregate population than bids on the second set of 
regional licenses covering the same population but without a bid on 
the Gulf of Mexico PSR license.
---------------------------------------------------------------------------

    244. By offering alternative licenses at auction simultaneously, 
the Commission can use the auction results to determine which 
license(s) will facilitate coverage of the maximum population by the 
nationwide interoperable shared broadband network for the public-
private partnership. Specifically, the Commission proposes to offer 
simultaneously licenses with three alternative conditions regarding the 
technology platform that may be used by the licensee: ``Alternative 
(1),'' a nationwide license with the technology platform to be 
determined by the winning bidder; ``Alternative (2),'' a set of 
regional licenses for use with the LTE technology platform; and 
``Alternative (3),'' a set of regional licenses for use with the WiMAX 
technology platform. The Commission's goal is to provide for an auction 
in which applicants could place bids for license(s) covering the 
geographic area of their choice (nationwide and regional) and subject 
to specific provisions regarding the required technology platform. More 
specifically, the Commission seeks to provide certainty to bidders for 
regional licenses about which technology platform would be required if 
they become winning bidders. Thus, the Commission tentatively concludes 
that the Commission should enable an auction in which applicants can 
place bids that represent the values they assign to licenses for the 
alternative geographic areas and alternative technology platform 
requirements described above.
    245. In furtherance of the Commission's primary goal of promoting 
the widest possible population coverage by D Block license(s) subject 
to the public-private partnership conditions, the Commission 
tentatively concludes, as an initial matter, that the Commission will 
not award any licenses unless the total population covered by licenses 
with high bids meets or exceeds fifty percent (50%) of the U.S. 
population. Setting the requirement at half of the population should 
help assure that sufficient licenses are assigned after the next 
auction to facilitate the ultimate success of a nationwide 
interoperable broadband network for public safety. The Commission will 
direct the Wireless Telecommunications Bureau, as part of its pre-
auction process, to describe how this requirement will be implemented 
in the context of the final auction procedures. If provisionally 
winning bids do not meet this requirement, the auction will be 
cancelled and no D Block licenses will be awarded based on the results 
of the auction.
    246. The Commission further tentatively concludes that, if the 
fifty percent (50%) population threshold is met, winning bidders will 
be determined according to the following criteria. If there is no 
nationwide bid and there are not high bids on all regional licenses in 
either set, the bidder(s) with high bid(s) on the D Block license(s) in 
the technology alternative covering the greatest aggregate population 
will become the winning bidders after the close of bidding. Similarly, 
if there is a nationwide bid but not high bids on all licenses in 
either regional set, the bidder for the nationwide license will become 
the winning bidder by covering the greatest aggregate population. In 
the event that there is a bid on the nationwide license and on all 
licenses in either regional set, the set of licenses with the highest 
aggregate gross bid(s) will become the winning bidder(s). Similarly, in 
the event that there is no nationwide bid and the greatest aggregate 
population is covered equally by the high bids in the two sets of 
regional licenses, the high bidder(s) for license(s) in the set with 
the highest aggregate gross bid(s) will become the winning bidder(s). 
Thus, the Commission will look first to population coverage to 
determine the winning set of licenses, and to the highest aggregate bid 
amounts only if the population coverage is equal.\478\
---------------------------------------------------------------------------

    \478\ For purposes of determining the extent of population 
covered by licenses with high bids, the Commission would treat the 
license for the Gulf of Mexico PSR as having population. Thus, if 
two sets of licenses otherwise cover the same aggregate population 
and only one of the license sets includes the Gulf of Mexico PSR, 
the set of licenses that includes the Gulf of Mexico PSR will be the 
winning set, regardless of which set has the highest aggregate bid 
amount. The nationwide license includes the Gulf of Mexico PSR.
---------------------------------------------------------------------------

    247. The Commission further tentatively concludes that the Wireless 
Telecommunications Bureau should establish auction procedures that will 
encourage bidding on licenses covering as much population as possible, 
including procedures to reduce minimum opening bids on unsold regional 
licenses during bidding. In particular, the Commission tentatively 
concludes that the Bureau should lower certain minimum opening bids to 
the levels set out below if either of the following two triggers is 
tripped.
    248. First, if there is a bid for the nationwide license, neither 
alternative set of regional licenses has received bids on all 58 
licenses, and the sum of the provisionally winning bids for either set 
of regional licenses is greater than the amount of the nationwide 
license bid, then the Bureau will lower the minimum opening bids for 
the regional licenses that do not have bids. Second, if there is not a 
bid for the nationwide license and there are bids in either set of 
regional licenses that cover at least half the nation's population, 
then the Bureau will lower the minimum opening bids for the regional 
licenses that do not have bids.
    249. In particular, in these circumstances, the Commission proposes 
that the Bureau would lower the relevant minimum opening bids by 
setting new minimum opening bids for licenses without bids at $0.005 
per megahertz per population (MHz-pop). If either of the regional 
licenses for the Gulf of Mexico does not have a bid, its minimum 
opening bid will be reduced to $2,500. Under this proposal, the Bureau 
would not further reduce minimum opening bids during the auction.
    250. The Commission also seeks comment on alternative triggers for 
the

[[Page 57796]]

reduction of minimum opening bids. For instance, the Commission seeks 
comment on whether, absent a bid on the nationwide license, there is 
another level at which the aggregate bids for either set of regional 
licenses should trigger a reduction in minimum opening bids for 
regional licenses without bids.
    251. The Commission seeks comment on all of these tentative 
conclusions and on whether such an auction process will best serve the 
public interest in achieving a nationwide interoperable public safety 
broadband network. The Commission also seeks comment on whether there 
are other auction provisions the Commission could establish that would 
promote the widest possible coverage of the nation's population by D 
Block licensees, while providing meaningful opportunities for regional 
bidders that would create interoperable regional networks. Further, the 
Commission seeks comment on whether the approach suggested by its 
tentative conclusions is consistent with the Commission's long-held 
policy of technology neutrality. To the extent commenters believe it is 
not, the Commission asks that they provide specific input on 
modifications the Commission could make that would advance technology 
neutrality. For example, would it be feasible to offer a fourth set of 
regional licenses that would allow the licensees to choose their own 
technology? What are the advantages and disadvantages of including such 
an additional set of regional licenses? Specifically, if licensees can 
choose their own technologies, how could the Commission assure that 
regional deployments on licenses offered in the fourth regional set 
will be fully interoperable consistent with the Commission's 
fundamental premise that bridging, gateways, and/or IP patches are 
insufficient for this purpose? Finally, the Commission seeks comment on 
when the auction should commence.
    252. While the 700 MHz Second FNPRM did not seek comment on the 
details of auction design, some commenters noted their objections to 
the possibility of package bidding. United States Cellular opposes the 
use of package bidding in any auction to license the D Block subject to 
the Public Private Partnership.\479\ The Rural Telecommunications Group 
also opposed package bidding.\480\
---------------------------------------------------------------------------

    \479\ US Cellular Comments at 21-22. Coleman Bazelon asserted 
with respect to Auction 73 that package bidding and anonymous 
bidding created difficulties for smaller bidders. See Bazelon 
Comments, Attachment at 11-14. Cox Communications opposes the use of 
anonymous bidding in any auction to license D Block that is not 
subject to the Public Private Partnership. Cox Communications 
Comments at 13-14. MetroPCS opposes the use of package bidding in 
any auction to license D Block that is not subject to the Public 
Private Partnership. MetroPCS Comments at 21-22.
    \480\ RTG Comments at 11.
---------------------------------------------------------------------------

    253. The Commission tentatively concludes that the Wireless 
Telecommunications Bureau should consider specific procedures for 
package bidding with respect to regional licenses. As discussed 
elsewhere, the Commission tentatively concludes that the Commission 
should offer regional licenses in order to enhance the likelihood that 
an applicant will seek licenses covering as much population as 
possible. While regional licenses offer applicants greater flexibility 
than a nationwide license, and bidders can win multiple regional 
licenses, some potential applicants may prefer to be able to place 
single bids covering geographic areas that are significantly larger 
than the roughly state-sized PSRs. Accordingly, the Commission 
tentatively concludes that the Commission should direct the Wireless 
Telecommunications Bureau, as part of its pre-auction process, to seek 
comment on and establish specific procedures for package bidding for 
regional licenses that might encourage bidding on licenses that cover 
as much population as possible. With respect to the concerns raised by 
commenters, the Commission notes that consistent with the Commission's 
conclusion in the Second Report and Order, the Commission anticipates 
that the Wireless Telecommunications Bureau can implement procedures 
for an auction with package bidding that will not impose disadvantages 
on parties that wish to bid on individual licenses offered and direct 
that it consider procedures that further that objective.\481\
---------------------------------------------------------------------------

    \481\ See Second Report and Order at para. 290.
---------------------------------------------------------------------------

    254. Because of the critical importance of achieving a truly 
nationwide interoperable wireless broadband network for public safety, 
the Commission proposes to take prompt action to assign any licenses 
remaining unsold if an auction meets the minimum coverage requirement 
and yet there is no winning bidder in some regions. Any remaining 
unsold licenses after an auction satisfies the minimum coverage 
requirement will be regional licenses conditioned on the use of a 
particular broadband technology platform. Such licenses will be unsold 
if no party is willing to make the minimum opening bid for the license, 
notwithstanding the Commission's reduction of the minimum opening bid 
to $0.005 per megahertz per population (MHz-pop). Furthermore, regional 
licenses subject to the Public/Private Partnership will have been sold 
that cover at least fifty percent (50%) of the nation's population, 
consistent with the minimum coverage requirement. Thus, licenses sold 
will provide a foundation for an interoperable public safety wireless 
broadband network and yet the network will not be nationwide because 
some regional licenses remain unsold, despite very low minimum opening 
bids. In order to realize the benefits of a truly nationwide network, 
the Commission proposes that under such unique circumstances, the 
Commission tentatively concludes that it should depart from its 
standard approach of offering commercial licenses to the applicant 
making the highest bid without reference to the applicant's particular 
business plan and instead conduct a Request for Proposal (RFP) process, 
incorporating consideration of applicant's proposals together with 
their bids.\482\
---------------------------------------------------------------------------

    \482\ Because this approach does not involve any procurement by 
or on behalf of the federal government, the use of the term ``RFP'' 
would not imply any obligation on the part of the federal government 
to apply the Federal Acquisition Regulations, 48 CFR Chapter 1, or 
any other government contracting requirements.
---------------------------------------------------------------------------

    255. One possible RFP process under such circumstances would be to 
request the submission of detailed proposals and bids from would-be 
licensees regarding how they would use the regional license to deploy 
an interoperable broadband network useable for public safety in the 
applicable region, in conjunction with the D block licenses already won 
at the auction. The Commission would determine the contents of the 
request in consultation with the PSBL, the applicable regional public 
safety planning committee, and other parties, including public 
commenters, as may be appropriate. The RFP would specify the license 
being offered, the applicable Commission rules, any additional 
requirements or modifications appropriate to the region, and specify 
the process by which any proposal(s) and bids would be evaluated. Based 
on this process, the Commission would award the license to the 
qualified party with the proposal and bid that best meet the 
requirements. The terms of the proposal would then be incorporated into 
an NSA for the region. The Commission seeks comment on this approach.
    256. Alternatively, The Commission could re-allocate the spectrum 
so that it can be assigned to the Public Safety Broadband Licensee. The 
PSBL would then request the submission of detailed

[[Page 57797]]

proposals from would-be licensees regarding how they would deploy an 
interoperable broadband network useable for public safety in the 
applicable region in partnership with the D block licenses won at the 
auction. The Commission seeks comment on these options.
    257. The Commission seeks comment as well on whether these 
approaches would be consistent with the Commission's obligations under 
Sections 309(j) and 337(a) with respect to the allocation of spectrum 
and the method of assigning D Block licenses. The Commission believes 
that, at least once the Commission has put up for auction two times the 
entire D Block portion of the 36 megahertz of spectrum allocated for 
commercial use under Section 337 and assigned a substantial number of 
commercial licenses in this Block through competitive bidding to cover 
at least half of the country, at a time when the DTV transition has 
already taken place and all the rest of the 36 megahertz of spectrum 
has been made available by auction and nearly all subsequently 
licensed, the Commission would have satisfied the allocation and 
assignment obligations of Section 337(a) for those D Block licenses 
that have failed to sell. In this regard, the Commission notes that the 
circumstances here differ significantly from those that informed the 
Commission's conclusion in the 700 MHz 2d R&O that it lacked authority 
under Section 337 at that time to reallocate commercial use guard band 
spectrum to public safety.
b. Eligibility Restrictions
    258. Comments. Some public safety and commercial commenters, 
including public safety entities, equipment manufacturers and large 
commercial wireless providers, oppose adopting eligibility restrictions 
on participation in an auction to license the D Block subject to the 
Public Private Partnership. PSST expressly refrains from taking a 
position on the issue. Other commenters, primarily smaller commercial 
entities as well as public interest commenter PISC, support such a 
proposal.
    259. So long as the Public Private Partnership is retained, NATOA 
et al. do not support any restrictions on eligibility of otherwise 
qualified potential licensees to bid for the D Block license.\483\ APCO 
contends that the Commission should not impose eligibility restrictions 
that are unrelated to the goal of developing a national public safety 
broadband network.\484\
---------------------------------------------------------------------------

    \483\ NATOA et al. Comments at 21.
    \484\ APCO Comments at 38.
---------------------------------------------------------------------------

    260. The Consumer Electronics Association opposes any restriction 
on bidding eligibility that might preclude incumbents from bidding, 
given the incumbents' qualifications and experience.\485\ Motorola 
opines that given the significant investment required to develop and 
deploy a public-safety grade broadband network, excluding current 
spectrum holders will put the entire effort in jeopardy.\486\ Qualcomm 
contends that the lack of bidding on D Block in Auction 73 counsels 
against any restrictions on eligibility in a subsequent auction.\487\
---------------------------------------------------------------------------

    \485\ CEA Comments at 5.
    \486\ Motorola Comments at 17.
    \487\ Qualcomm Comments at 11-12.
---------------------------------------------------------------------------

    261. Both AT&T and Verizon Wireless also oppose eligibility 
restrictions, noting that larger wireless providers are precisely the 
parties best positioned to create a new public safety network.\488\
---------------------------------------------------------------------------

    \488\ AT&T Reply Comments at 12; Verizon Wireless Comments at 
22.
---------------------------------------------------------------------------

    262. PSST does not take a position on eligibility restrictions at 
this time.\489\ However, PSST advocates that the Commission attempt to 
assure itself of the intentions of AT&T and Verizon Wireless, in order 
to avoid an outcome where the possibility that those entities might 
participate in the auction deters other participants, notwithstanding a 
lack of interest by either AT&T or Verizon Wireless.\490\
---------------------------------------------------------------------------

    \489\ PSST Comments at 43. PSST did not amend this position in 
its Reply Comments. See, generally, PSST Reply Comments.
    \490\ PSST Comments at 44-45.
---------------------------------------------------------------------------

    263. Claiming that AT&T, Sprint, T-Mobile, and Verizon Wireless 
currently have a collective ``chokehold'' on the wireless services 
industry and that there is a low likelihood that new entrants will have 
any opportunity other than the D Block, Council Tree Communications 
asserts that AT&T, Sprint, T-Mobile and Verizon Wireless should be 
prohibited from participating in an auction to license the D 
Block.\491\ For the same reasons, Council Tree advocates use of the 
``attributable interest'' standard previously used as part of the 
former spectrum aggregation limit to preclude participation by parties 
in which one of the barred carriers has an attributable interest.\492\
---------------------------------------------------------------------------

    \491\ Council Tree Communications Comments at 14.
    \492\ Council Tree Communications Comments at 16.
---------------------------------------------------------------------------

    264. Cellular South ``strongly encourages'' the Commission to limit 
participation in the D Block auction by parties who have significant 
access to 700 MHz spectrum.\493\ In particular, Cellular South endorses 
the use of the Commission's spectrum aggregation screen used for 
wireless transactions in connection with licensing of the D Block.\494\ 
Similarly, Leap proposes that the Commission bar entities that won a 
``substantial amount of spectrum'' in Auction 73 from participating in 
an auction to license the D Block.\495\ More specifically, Leap 
proposes that any current license holder or winning bidder capable of 
reaching more than half of the nation's population with its 700 MHz 
spectrum be prohibited from participating in an auction to license D 
Block.\496\ NTCH proposes that parties with more than 20 megahertz of 
700 MHz spectrum in a given market, primarily AT&T and Verizon 
Wireless, should be precluded from bidding on the D Block in that 
market.\497\
---------------------------------------------------------------------------

    \493\ Cellular South Comments at 2.
    \494\ Cellular South Comments at 3.
    \495\ Leap Comments at 4.
    \496\ Leap Comments at 7.
    \497\ NTCH Comments at 13.
---------------------------------------------------------------------------

    265. Citing conditions for competition that it contends worsened as 
a result of the outcome of Auction 73, PISC advocates the adoption of a 
spectrum cap of 95 megahertz in a market, as well as the grant of its 
pending petition for reconsideration which would preclude the C Block 
licensee from holding the D Block license.\498\ In the current 
proceeding, the Rural Telecommunications Group advocates a per county 
spectrum cap of 24 megahertz of 700 MHz band spectrum, while it seeks 
in a separate proceeding to impose a general spectrum cap on spectrum 
below 2.3 GHz.\499\ These restrictions on eligibility to hold a license 
would go beyond the bidding eligibility restrictions contemplated by 
the Commission in the 700 MHz Second FNPRM.
---------------------------------------------------------------------------

    \498\ PISC Comments at 6-7.
    \499\ RTG Comments at 8-11.
---------------------------------------------------------------------------

    266. Discussion. The Commission tentatively concludes that the 
Commission should not adopt any restriction on the eligibility to bid 
for D Block licenses by any entity otherwise eligible to be a D Block 
licensee based on its spectrum holdings, whether in the 700 MHz band or 
any other band.\500\ The 700 MHz Second FNPRM sought comment on whether 
a restriction on eligibility to bid in an auction to license the D 
Block might increase the likelihood that a new entrant to nationwide 
service in the 700 MHz band

[[Page 57798]]

would have an opportunity to do so. The Commission tentatively 
concludes that the public interest in maximizing the likelihood that a 
nationwide interoperable broadband network meeting the needs of public 
safety will be built outweighs any possibility that a restriction on 
eligibility to bid in an auction to license the D Block pursuant to the 
Public Private Partnership will increase the likelihood that a new 
nationwide service provider will emerge. The Commission notes that this 
tentative conclusion does not itself bar any new provider from 
participating in an auction to license the D Block. Moreover, to the 
extent incumbent providers have cost advantages over a new provider 
with respect to providing nationwide service that meets the needs of 
public safety, the Commission tentatively concludes it better serves 
the public interest to enable those savings to be put to use in 
facilitating the provision of such service, rather than by requiring 
the D Block winner to assume additional costs.
---------------------------------------------------------------------------

    \500\ As the Commission discuss elsewhere, the Commission 
tentatively conclude that the Commission should establish 
eligibility conditions for any advisor to the Public Safety 
Broadband Licensee.
---------------------------------------------------------------------------

    267. The Commission decline to adopt PSST's suggestion that the 
Commission seeks a commitment from nationwide incumbent service 
providers regarding their intentions to participate in an auction to 
license D Block. The Commission recognizes the PSST's concern that 
uncertainty regarding potential competition from incumbents in an 
auction conceivably could inhibit other potential bidders, 
notwithstanding an ultimate lack of interest by incumbent nationwide 
service providers. However, the Commission believes that parties 
dissuaded from even applying to participate in an auction by such 
concerns are unlikely to have the commitment or the resources essential 
to providing service as a D Block licensee. Moreover, the Commission 
recognizes that incumbent nationwide service providers may be unable to 
determine their ultimate intentions regarding their interest in the D 
Block with certainty far enough in advance of an auction for their 
statements to be of use to other applicants. The Commission does not 
want to foreclose the possibility that an incumbent carrier might 
become a licensee by requiring them to make an earlier determination 
than other parties regarding their interest in doing so. Accordingly, 
the Commission declines to adopt PSST's suggestion that the Commission 
seeks a commitment from nationwide incumbent service providers 
regarding their intentions to participate in an auction to license D 
Block.
    268. The Second FNPRM did not seek comment on a spectrum cap or any 
limitation on the ability of parties to hold licenses for the D Block. 
As many commenters noted, in the Second Report and Order, the 
Commission considered and rejected restricting eligibility to hold 
licenses in the 700 MHz band based on competition in the market for 
broadband services.\501\ While the spectrum holdings of parties have 
changed in the period since that decision, none of the commenters 
demonstrate that these changes have resulted in any change in the 
market for broadband services that mandates revisiting the Commission's 
decision. Thus, even if within the scope of this proceeding, the 
Commission does not believe the record before us supports any spectrum 
cap applicable to the D Block at this time. The Commission's conclusion 
in this regard is without prejudice to the Commission's review of the 
record in any other proceedings regarding potential spectrum caps.
---------------------------------------------------------------------------

    \501\ Parties have filed petitions for reconsideration of that 
decision, which remain pending before the Commission. See, e.g., 
PISC Petition for Reconsideration at 2.
---------------------------------------------------------------------------

c. Reserve Price
    269. Comments. As to the level of any reserve price used in an 
auction to license the D Block, the consensus view among commenters is 
that the reserve should be reduced or even eliminated. Numerous 
commenters, from Council Tree Communications to Verizon Wireless to 
APCO, supported significantly reducing or eliminating a reserve price 
altogether. Some commenters, such as Jon Peha, Coleman Bazelon, and 
Northrop Grumman, even supported eliminating a minimum opening bid. 
MetroPCS was the only commenter that supported an aggressive reserve 
price in excess of the minimum opening bid.
    270. NATOA et al. assert that, so long as the Public Private 
Partnership is retained, there is no need for a reserve price in light 
of the revenues recovered in Auction 73.\502\
---------------------------------------------------------------------------

    \502\ NATOA et al. Comments at 20-21.
---------------------------------------------------------------------------

    271. Ericson asserts that the public interest would be served by a 
reserve price just high enough to assure that a winning bidder has an 
economic stake in successfully negotiating an NSA but not one linked to 
the potential value of the D Block absent the Public Private 
Partnership.\503\ Northrop Grumman asserts that given the financial 
success of Auction 73 and the need to attract additional interest in 
the D Block, neither a minimum opening bid nor a reserve price would 
serve the public interest in an auction to license D Block.\504\
---------------------------------------------------------------------------

    \503\ Ericson Comments at 33.
    \504\ Northrop Grumman Comments at 9.
---------------------------------------------------------------------------

    272. Individual commenters Jon Peha and Coleman Bazelon both 
contend that the D Block winner may need subsidies in order to 
construct the Public Safety Network and, accordingly, there should be 
no reserve price.\505\
---------------------------------------------------------------------------

    \505\ Bazelon Comments at 2.
---------------------------------------------------------------------------

    273. The Commission notes that three academic commenters address 
the role of the reserve price rather than its level. Sandro Brusco, 
Giuseppe Lopomo, and Leslie M. Marx (Brusco et al.) address the reserve 
price from the perspective of using it in order to determine whether to 
impose additional requirements on the licensee. They contend that 
meeting a reserve price is likely to be a poor mechanism for balancing 
public and private interests and for identifying the highest valuing 
user of the spectrum.\506\ As an alternative mechanism, Brusco et al. 
suggest that the Commission considers using an ``exclusive buyer 
mechanism'' in which bidders compete for the right to choose between 
the license with requirements or without requirements (or with fewer 
requirements), with a discount on a bidder's bid if it chooses to 
accept the requirements. In such a mechanism, the Commission would set 
the bid discount to reflect the public benefit of the 
requirements.\507\ Given the Commission's tentative conclusion to 
retain the D Block license requirements regardless of the bidding in 
the next auction, this analysis is not relevant to the Commission's 
current decisions.
---------------------------------------------------------------------------

    \506\ Brusco et al. Comments at 2-4.
    \507\ Brusco et al. Comments at 5.
---------------------------------------------------------------------------

    274. Discussion. The Commission tentatively concludes that the 
Commission should direct the Wireless Telecommunications Bureau to not 
adopt a reserve price greater than any minimum opening bid or bids. The 
successful creation of a nationwide interoperable broadband network 
meeting the needs of public safety will be of enormous value to the 
public, quite possibly exceeding the value of any potential revenue for 
the public from the sale of licenses for the D Block. Thus, in contrast 
to the Commission's decisions with respect to Blocks A, B, C, and E in 
Auction 73, the Commission tentatively concludes that it is not in the 
public interest to adopt a reserve price beyond the minimum opening bid 
to assure that the adoption of the Public Private Partnership does not 
have an excessive negative effect on the value of the public spectrum 
resource. In addition, as many commenters note, the results of Auction 
73 more than satisfied the revenue expectations of the Congress with 
respect to the auction of recovered analog spectrum, as set forth

[[Page 57799]]

in the DTV Act. Furthermore, a reserve price may have negative 
consequences by discouraging otherwise viable bidders from competing in 
an auction. Accordingly, no reserve price beyond the minimum opening 
bid for the next auction to license the D Block is needed to serve a 
larger policy goal, notwithstanding the Commission's contrary decision 
in Auction 73. At the same time, the Commission also tentatively 
concludes that it is in the public interest to direct the Wireless 
Telecommunications Bureau to establish initial minimum opening bids for 
each set of alternative D Block licenses that equal or aggregate 
approximately $750 million.\508\ The Commission seeks comment on the 
Commission's tentative conclusions, including whether the proposed 
aggregate minimum opening bids should be lowered.
---------------------------------------------------------------------------

    \508\ Appendix E provides proposed minimum opening bids for each 
of the 58 PSRs, which total approximately $750 million.
---------------------------------------------------------------------------

d. Impermissible Material Relationships for Designated Entities
    275. Comments. Only a select group of commenters addressed this 
issue. Council Tree Communications, MetroPCS, NATOA et al., and 
Wirefree Partners all addressed this issue.
    276. NATOA et al., favor codifying the waiver, so long as the 
Public Private Partnership is retained, so as to facilitate the 
participation of smaller bidders.\509\ Council Tree Communications 
favors codifying the waiver.\510\ In addition, Council Tree 
Communications proposes that the Commission waive all designated entity 
rule modifications adopted since 2006, in part due to Council Tree 
Communications pending litigation challenging those rule changes.\511\ 
Wirefree likewise supports codifying the waiver in connection with 
making other changes to the designated entity rules.\512\ Wirefree 
would liberalize the designated entity rules by returning to a pre-2000 
structure of requiring that qualifying entities maintain a minimum 
equity interest in the applicant while not attributing revenues of 
other interest holders to the applicant.\513\
---------------------------------------------------------------------------

    \509\ NATOA et al. Comments at 21.
    \510\ Council Tree Communications Comments at 11.
    \511\ Council Tree Communications Comments at 13.
    \512\ Wirefree Comments at 9-10.
    \513\ Wirefree Comments at 9-11.
---------------------------------------------------------------------------

    277. MetroPCS opposes codifying or even retaining the waiver. 
MetroPCS argues generally that the Commission should not retain the 
Public Private Partnership that is the basis of the current 
waiver.\514\ Consistent with its view that the Public Private 
Partnership will make extreme demands on the D Block licensee's 
financial resources, MetroPCS argues that that the Commission should 
not offer bidding credits to applicants for D Block license(s).\515\ 
Further, MetroPCS contends that a D Block exemption from the 
impermissible material relationship rule is not supported by any 
``unique or unusual circumstances surrounding this spectrum.'' \516\
---------------------------------------------------------------------------

    \514\ MetroPCS Comments, passim.
    \515\ MetroPCS Comments at 34-35.
    \516\ MetroPCS Comments at 36.
---------------------------------------------------------------------------

    278. Discussion. The Commission tentatively concludes that the 
Commission should codify the substance of the previously granted waiver 
of the impermissible material relationship rule so that a D Block 
applicant or licensee with lease or resale (including wholesale) 
arrangements with other entities involving more than 50 percent of the 
spectrum capacity of a D Block license will not be ineligible for 
designated entity benefits solely on the basis of such 
arrangements.\517\ The waiver of the rule was premised on the fact that 
certain aspects of the Commission's D Block rules with respect to the 
Public Private Partnership provided adequate safeguards against the 
abuses the impermissible material relationship rule was intended to 
prevent. The Commission does not believe that any of the changes in the 
D Block rules the Commission tentatively proposes today invalidate that 
premise. Accordingly, the Commission disagrees with MetroPCS's 
contention that there are no unique or unusual circumstances 
surrounding this spectrum and tentatively concludes that the Commission 
should codify the waiver.\518\ The Commission seeks comment on this 
tentative conclusion.
---------------------------------------------------------------------------

    \517\ If a D Block applicant or licensee utilizes this exception 
to the impermissible material relationship rule, it still remains 
subject to the Commission other designated entity eligibility rules, 
including the Commission controlling interest, unjust enrichment, 
attributable material relationship, audit, eligibility event and 
annual reporting rules. C.f., In Re Waiver of Section 
1.2110(b)(3)(iv)(A) of the Commission's Rules For the Upper 700 MHz 
Band D Block License, Order, 22 FCC Rcd. 20354, 20357 para.8, fn. 21 
(2007).
    \518\ Because this exception does not extend to arrangements for 
use of the spectrum capacity of licenses other than the D Block 
license, if an applicant or licensee has an impermissible material 
relationship with respect to the spectrum capacity of any other 
license(s), the normal operation of the Commission's rules will 
continue to render it ineligible for designated entity benefits for 
the D Block license.
---------------------------------------------------------------------------

    279. The Commission further tentatively concludes that the 
Commission should not revisit more generally the rules regarding 
designated entity eligibility as proposed by Council Tree 
Communications or Wirefree. Without prejudging those proposals, it is 
more appropriate to address the rules regarding designated entity 
eligibility generally in a separate proceeding. The Commission can 
consider its general designated entity eligibility rules in various 
pending proceedings, including a pending Further Notice of Proposed 
Rulemaking and pending petitions for reconsideration arising from the 
Commission's most recent revisions to the designated entity program. 
The Commission also rejects the notion that Council Tree 
Communications' attempt to litigate the Commission's existing 
designated entity rules, which the Commission adopted to further the 
public interest and applied in the recent auctions of Advanced Wireless 
Services and 700 MHz licenses, is any basis for suspending those rules 
in the next auction to license the D Block spectrum.
e. Default Payment Amounts
    280. Comments. Few commenters addressed whether to modify the 
default payment outside of the context of a failed attempt to negotiate 
an NSA. Andrew Seybold states without further discussion that ``the 
penalty clause should be removed.'' \519\ Qualcomm asserts that the 
default rules are among rules that must be revised but suggests only 
that the Commission waits until the close of the comment cycle in 
response to the 700 MHz 2d FNPRM and then convene all affected 
stakeholders in a meeting or meetings to ensure that the revised rules 
strike the right balance.\520\
---------------------------------------------------------------------------

    \519\ Andrew Seybold Comments at 7.
    \520\ Qualcomm Comments at 11.
---------------------------------------------------------------------------

    281. Discussion. The Commission tentatively concludes that the 
Commission's existing rules governing the amount of the default payment 
are generally appropriate for circumstances in which a D Block winning 
bidder may be liable for a default payment.\521\ However, the 
Commission also tentatively concludes that for an auction of 
alternative D Block licenses, the Commission should apply the same 
default payment amount rule regardless of whether or not it package 
bidding is utilized. Currently, the Commission rules provide that the 
Bureau, prior to auctions without combinatorial bidding, i.e., package 
bidding, shall establish the percentage for the additional payment

[[Page 57800]]

component of a default payment between 3 and 20 percent. In auctions 
with combinatorial or package bidding, the Commission's rules provide 
that this percentage shall be 25 percent. The Commission established 
this higher percentage for package bidding auctions because of the 
potential inter-relatedness of bids in such an auction. Because each 
bidder's bid in a package bidding auction is combined with bids on 
other licenses to determine the group of winning bids, any one bid may 
affect which bids win other licenses. Consequently, the Commission 
concluded that it is particularly important to discourage defaults in 
package bidding auctions. As the Commission has discussed elsewhere, 
bids in an auction of alternative licenses are also inter-related, 
regardless of whether package bidding is available. However, the 
Commission tentatively concludes that in an auction of alternative 
licenses for the D Block subject to the 700 MHz Public/Private 
Partnership, whether or not package bidding procedures are implemented, 
the Commission should direct the Wireless Telecommunications Bureau to 
set the percentage of the additional payment for defaults at between 3 
and 20 percent, the same range for an auction without package bidding. 
The Commission tentatively concludes that this range will enable the 
Bureau to set an appropriate percentage as part of its pre-auction 
process, taking into account both the special circumstances of the D 
Block and the final details of the auction process to be used. The 
Commission seeks comment on this tentative conclusion.
---------------------------------------------------------------------------

    \521\ As discussed elsewhere, the Commission has concluded 
tentatively that the Commission default payment rules should be 
modified with respect to the circumstances under which they apply to 
D Block winning bidders following a failure to negotiate an NSA with 
the PSBL that is acceptable to the Commission.
---------------------------------------------------------------------------

f. Other Competitive Bidding Rules
    282. Background. In the 700 MHz Second FNPRM, the Commission sought 
comment on other potential changes to the Commission's competitive 
bidding rules, potentially to assist new entrants or to serve other 
public interest purposes.
    283. Comments. Sprint proposes a system of performance-based 
bidding credits, in which applicants agreeing to meet any of up to 5 
potential stricter performance requirements could receive bidding 
credits, subject to a requirement to repay the credit, with interest, 
if the applicant does not meet the stricter standards. AT&T opposes 
this proposal, characterizing it as ``[a]llowing carriers to eviscerate 
[minimum] standards by paying additional money.'' \522\ Commenter 
Andrew Seybold proposes that an auction be conducted to determine the 
party that will manage the Public Safety Network, with incumbent 
carriers constructing the network in response to other incentives, such 
as tax credits and access to the network.\523\ In this context, he 
advocates that the Commission lift its anti-collusion rule, in order to 
enable communications among incumbent carriers and prospective network 
managers.\524\ As part of its own alternative proposal, NTCH suggests 
that the Commission lift the anti-collusion rule prior to the auction, 
apparently unaware that the rule does not apply until would-be 
licensees file applications to participate in the auction.\525\ NATOA 
also suggests ``relaxing'' the Commission's anti-collusion rules, 
apparently under the mistaken belief that the rules prohibit the 
creation of bidding consortia prior to the auction.\526\ United States 
Cellular opposes the use of anonymous bidding in any auction to license 
the D Block subject to the Public Private Partnership.\527\ As noted 
above, Council Tree Communications and Wirefree Partners suggest 
several changes to the Commission's designated entity program in order 
to encourage participation by designated entities.
---------------------------------------------------------------------------

    \522\ AT&T Reply Comments at 21.
    \523\ Andrew Seybold Comments at 4.
    \524\ Andrew Seybold Comments at 5.
    \525\ NTCH Comments at 14.
    \526\ NATOA et al. Comments at 21.
    \527\ US Cellular Comments at 21-22. Coleman Bazelon asserted 
with respect to Auction 73 that package bidding and anonymous 
bidding created difficulties for smaller bidders. See Bazelon 
Comments, attachment at 11-14. Cox Communications opposes the use of 
anonymous bidding in any auction to license D Block that is not 
subject to the Public Private Partnership. Cox Communications 
Comments at 13-14. MetroPCS opposes the use of package bidding in 
any auction to license D Block that is not subject to the Public 
Private Partnership. MetroPCS Comments at 21-22.
---------------------------------------------------------------------------

    284. Discussion. The Commission seeks further comment with respect 
to the approach advocated by Sprint. As discussed elsewhere in this 
Third FNPRM, the Commission has reached tentative conclusions with 
respect to the appropriate level of performance mandates. The 
Commission asks that commenters address whether it should modify these 
performance mandates by offering bidding credits to applicants willing 
to commit themselves to meeting greater requirements. In light of the 
mandates proposed herein, with respect to which mandates should the 
Commission offer bidding credits for commitments to exceed the 
requirements? What would be the level by which the mandate should be 
exceeded before a credit should be offered? What amount of credit is 
appropriate for a particular performance requirement? Should the credit 
only be refunded from the full bid price after the greater requirement 
is met? Or should the commitment be sufficient to receive a reduction 
in the bid amount, subject to repayment if the commitment is not 
fulfilled? Does the appropriate approach change depending on the 
particular performance requirement?
    285. The Commission tentatively concludes that it should not make 
any of the changes commenters propose to the Commission's competitive 
bidding rules. As the Commission's anti-collusion rule applies solely 
after parties file applications to participate in bidding for 
Commission licenses, the Commission tentatively concludes bidding 
consortia may form prior to the application deadline without any 
relaxation of the rule. Furthermore, in light of the Commission's 
tentative conclusion that the winning bidder for a D Block license 
should negotiate an NSA only after the conclusion of the auction, there 
is no reason to relax the anti-collusion rule to permit communications 
during the auction in connection with the terms of the NSA. Commenters' 
proposals regarding certain details of auction design, such as 
anonymous bidding, are best addressed in the context of the Wireless 
Telecommunication Bureau's pre-auction notice and comment process.\528\ 
Finally, for reasons discussed above, the Commission will not consider 
in this proceeding the wholesale changes to the Commission's designated 
entity eligibility rules proposed by Council Tree Communications and 
Wirefree Partners.
---------------------------------------------------------------------------

    \528\ The Commission detailed the public interest reasons 
underlying its decision to utilize anonymous bidding in for the 
auction of 700 MHz Band licenses in the Second Report and Order and 
has used anonymous bidding in a number of Commission auctions for 
wireless services licenses. Accordingly, absent good cause, the 
Commission expects that anonymous bidding likely will be employed in 
the next auction of the D Block.
---------------------------------------------------------------------------

8. Safeguards for Protection of Public Safety Service
    286. Background. In the Second Report and Order, the Commission 
established a number of measures to safeguard the interests of public 
safety on an ongoing basis following the execution of the NSA. These 
measures included: (1) Requirements related to the organization and 
structure of the 700 MHz Public/Private Partnership; (2) a prohibition 
on discontinuance of service provided to public safety entities; (3) 
special remedies in the event that the D Block licensee or Public 
Safety Broadband Licensee fail to comply with either the Commission's 
rules or the terms of the NSA; (4) a special,

[[Page 57801]]

exclusive process for resolving any disputes related to the execution 
of the terms of the NSA; and (5) ongoing reporting obligations.\529\ 
These measures addressed concerns that problems arising after the 
execution of the NSA, whether financial or otherwise, might threaten 
the build-out of the network or the provision of services to public 
safety, or that financial problems might lead the D Block licensee to 
draw its license or the network assets into a bankruptcy proceeding. 
The Commission did not specifically propose any modifications to these 
rules in the Second FNPRM.
---------------------------------------------------------------------------

    \529\ Second Report and Order, 22 FCC Rcd at 15467-71 paras. 
517-530.
---------------------------------------------------------------------------

    287. Discussion. The Commission tentatively concludes that the 
Commission should retain these rules to safeguard the interests of 
public safety on an ongoing basis following the execution of the 
NSA.The Commission continues to believe that the measures the 
Commission previously adopted are necessary to address the possibility 
that problems could arise in the implementation of the NSA or the 
operation of the common network, and that they will protect the 
interests of public safety without compromising the commercial 
viability of the 700 MHz Public/Private Partnership.\530\
---------------------------------------------------------------------------

    \530\ But see Letter from Warren G. Lavey, US Cellular, to 
Marlene H. Dortch, Secretary, FCC, WT Docket 06-150, PS Docket 06-
229, filed Sept. 17, 2008 (asserting that the requirement to form 
bankruptcy remote special entities ``may be detrimental to the 
rapid, efficient deployment and operation of networks by many 
potential D Block licensees'').
---------------------------------------------------------------------------

    288. The Commission also notes that, in addition to the quarterly 
reporting requirements adopted in the Second Report and Order, it has 
proposed elsewhere in this Third FNPRM that the D Block licensee be 
required to provide to the Public Safety Broadband Licensee monthly 
network usage statistics. The Commission also finds that these existing 
and newly proposed reporting requirements address the concerns of some 
commenters regarding the need for oversight of the D Block licensee's 
operations. The Commission seeks comment on these tentative 
conclusions.
    289. In addition, the Commission seeks comment on whether a winning 
bidder for any D Block license should post financial security to ensure 
that the network will be constructed pursuant to the terms of the NSA 
and the Commission's rules. In particular, the Commission seeks comment 
on whether a winning bidder for D Block licenses should be required to 
obtain an irrevocable standby letter of credit (``LOC'') no later than 
the date on which its executed NSA is submitted to the Commission. The 
Commission also seeks comment on whether only applicants that do not 
meet certain criteria should be subject to this requirement. For 
example, should the Commission establish criteria, based on bond 
rating, market capitalization, or debt/equity ratios (combined with 
minimum levels of available capital) that, if not met, would make an 
LOC necessary?
    290. The Commission seeks comment on the amount of the LOC 
necessary to ensure uninterrupted construction of the public safety 
network, as well as the length of time that the LOC should remain in 
place. For example, the amount of the LOC could be determined on the 
basis of estimated annual budgets that could accompany the build-out 
schedule required as part of the NSA, or the Commission could simply 
require a specific dollar figure for the LOC in an amount that would 
ensure that construction could proceed for a given amount of time. 
Should the amount of an initial LOC, or a subsequent LOC, also ensure 
the continuing maintenance and operation of the network? Under what 
circumstances should the D Block licensee be required to replenish the 
LOC?
    291. The Commission also seeks comment on whether the LOC should be 
issued in favor of a trustee and the Commission. What events would 
constitute a default by the D Block licensee that would allow the 
trustee or the Commission to make a draw on the entire remaining amount 
of the LOC? Further, the Commission notes its intent that, in the event 
of bankruptcy, the LOC should be insulated from claims other than the 
draws authorized here for the construction and operation of the 
network. The Commission seeks comment on provisions it might adopt to 
provide safeguards to this effect.\531\
---------------------------------------------------------------------------

    \531\ For example, the Commission could require as a condition 
of the Public/Private Partnership License that any winning bidder 
for a D Block license and related parties must first provide the 
Commission with a legal opinion letter that would state, subject 
only to customary assumptions, limitations and qualifications, that 
in a proceeding under Title 11 of the United States Code, 11 U.S.C. 
Section 101 et seq. (the ``Bankruptcy Code''), in which the winning 
bidder is the debtor, the bankruptcy court would not treat the 
Letter of Credit or proceeds of the Letter of Credit as property of 
the winning bidder's bankruptcy estate (or the bankruptcy estate of 
any other bidder-related entity requesting the issuance of the LOC) 
under Section 541 of the Bankruptcy Code.
---------------------------------------------------------------------------

    292. As an alternative to an LOC, the Commission seeks comment on 
whether it should require parties to obtain performance bonds covering 
the cost of network construction or operation. The Commission also 
seeks comment on the types of requirements that bond issuers might 
impose and whether such requirements are consistent with the public 
interest in permitting a range of qualified parties to seek D Block 
licenses. The Commission also seeks comment on the relative merits of 
performance bonds and LOCs and the extent to which performance bonds, 
in the event of the D Block Licensee's bankruptcy, might frustrate the 
Commission's goal of ensuring timely buildout of the network. The 
Commission also seeks comment on whether there are other protections 
that it should reasonably seek to ascertain the financial viability of 
the winning bidder, and ensure construction of the network and its 
subsequent operation.
9. Local Build-Out Options
    293. Background. In the Second Report and Order, the Commission 
adopted provisions for early build-out in areas that do and do not have 
a build-out commitment from the D Block licensee. Under these 
provisions, for areas with a build-out commitment, some commenters 
request that public safety entities can, with pre-approval from the 
Public Safety Broadband Licensee, construct at its own expense a 
broadband network in that area that conforms to the requirements and 
specifications of the NSA, and must transfer such network to the D 
Block licensee for integration into the Shared Wireless Broadband 
Network. In this case, the public safety entity's compensation would be 
limited to the costs the D Block licensee would have incurred had it 
constructed the network in that area itself. Alternatively, rather than 
constructing the network at its own cost, the public safety entity 
could provide the D Block licensee with the funds necessary to do 
so.\532\ For areas lacking a build-out commitment from the D Block 
licensee, public safety entities may, at their own expense, construct 
and operate an exclusive broadband network that is fully interoperable 
with the Shared Wireless Broadband Network, pursuant to a spectrum 
leasing arrangement with the Public Safety Broadband Licensee, and 
after the Public Safety Broadband Licensee first offers the D Block 
licensee the option of constructing a network in that area itself.\533\
---------------------------------------------------------------------------

    \532\ See 47 CFR 90.1430(b)(1)-(4).
    \533\ See 47 CFR 90.1430(b)(5).
---------------------------------------------------------------------------

    294. Comments. The Second FNPRM did not specifically seek comment 
on changes to the rules on local public safety build-out. However, some 
commenters advocated for greater

[[Page 57802]]

flexibility or autonomy in building out their own networks in the 700 
MHz public safety broadband spectrum.\534\ APCO cautions that ``while 
some accommodation for certain local deployments in the context of a 
national license is necessary, the Commission must avoid creating yet 
another situation consisting of multiple islands of robust, but 
incompatible, public safety networks with vast unserved areas in-
between.'' \535\ Similarly, California asserts that ``[t]he vision of a 
nationwide Shared Wireless Broadband Network (SWBN) cannot be realized 
through the deployment of a multitude of [discrete] systems,'' arguing 
that, given limited economic resources, ``[s]ome public safety agencies 
in urban areas would likely implement broadband networks, but those in 
rural areas would find it harder to justify building a local or 
regional broadband network.'' \536\ APCO adds that it continues to 
support allowing local deployments in areas where the national network 
is unlikely to be built in the near future, conditioned on eventual 
integration into the national network.\537\
---------------------------------------------------------------------------

    \534\ See Kentucky Wireless Interoperability Executive Committee 
Comments at 1, San Francisco Comments at 3-4; Philadelphia Comments 
at 5-8, NYPD Comments at 7-10, District of Columbia Comments at 8-
15.
    \535\ Id. at 3.
    \536\ California Comments at 7.
    \537\ See APCO Reply Comments at 3 n.2.
---------------------------------------------------------------------------

    295. In an ex parte letter, Alcatel-Lucent proposes changes to the 
local build-out rules that would create an additional option allowing a 
public safety entity to ``enter a spectrum lease agreement with the 
Public Safety Broadband Licensee and, at its own expense, build out a 
700 MHz broadband network in any area where the public-private 
broadband system has not yet been built.'' \538\ Further, if the D 
Block licensee ``were to seek to build out and operate the public-
private network in the same area, it would be required to compensate 
the public safety entity, based upon commercially reasonable terms, for 
the value of the network to be integrated into the public-private 
network.'' \539\ Alcatel-Lucent also argues that ``[n]etwork 
integration and technological evolution are commonplace in commercial 
mobile networks today, and there is no technological impediment to 
integration--regardless of technologies.'' \540\
---------------------------------------------------------------------------

    \538\ Alcatel-Lucent Ex Parte at 2.
    \539\ Id.
    \540\ Id.
---------------------------------------------------------------------------

    296. Discussion. The local build-out rules the Commission adopted 
in the Second Report and Order afford public safety entities with 
options to build out broadband networks in advance or in lieu of the D 
Block licensee's build-out, so that public safety agencies may obtain 
use of advanced broadband networks more quickly if their needs so 
dictate. Particularly in areas that have a build-out commitment, a 
public safety entity serving that area may already have invested 
resources in development of plans to deploy a system that is tailored 
to that area and thus may have options available to accelerate the 
deployment of the public safety broadband network to its jurisdiction. 
At the same time, the Commission recognizes that since the auction of 
the D Block did not result in a winning bid, there has been an 
associated delay in the deployment of the nationwide broadband network, 
which may impact the extent to which some public safety agencies may 
desire to construct their own networks before a new auction is 
completed.
    297. In its comments, the District of Columbia (the ``District'') 
made certain requests related to the Regional Wireless Broadband 
Network (RWBN) \541\ operated by the National Capital Region (NCR) 
jurisdictions, of which the District is a member.\542\ The District 
indicates that $8.2 million in Federal grant funds have been expended 
to build out the RWBN thus far, primarily within the District.\543\ The 
District further states that it requires certainty to realize a return 
on further investment in the program.\544\ Specifically, the District 
requests that the Commission authorize it to: (i) Continue deploying 
and operating the RWBN for 10 years from the date of any final decision 
on its request, or require the interoperable shared broadband network 
into which the RWBN would be incorporated to provide service to 
District users for 10 years free of charge; (ii) use the 700 MHz 
broadband spectrum for 10 years from the date of a final decision or 
until the RWBN is incorporated into the interoperable shared broadband 
network; (iii) use the RWBN to provide service to as broad a range of 
users as possible, including municipal, state, and Federal users, as 
well as other users not typically defined as ``first responders;'' and 
(iv) offer service and assign priority levels to specific groups of 
users as the District deems appropriate and necessary to sustain the 
RWBN financially.\545\
---------------------------------------------------------------------------

    \541\ NCR deployed the RWBN in the 700 MHz Band pursuant to a 
waiver issued by the PSHSB in January 2007. See Request by National 
Capital Region for Waiver of the Commission's Rules to Allow 
Establishment of a 700 MHz Interoperable Broadband Data Network, WT 
Docket No. 96-86, Order, 22 FCC Rcd 1846 (PSHSB 2007) (NCR Waiver 
Order). NCR operates the RWBN pursuant to a grant of a request for 
Special Temporary Authority. See Special Temporary Authorization, 
File No. 0003149202, Call Sign WQHY489 (Nov. 1, 2007); Special 
Temporary Authorization, File No. 0003397425, Call Sign WQHY489 
(April 28, 2008); Special Temporary Authorization, File No. 
0003151108, Call Sign WQHY490 (Nov. 1, 2007); Special Temporary 
Authorization, File No. 0003397644, Call Sign WQHY490 (April 28, 
2008).
    \542\ The NCR consists of eighteen jurisdictions: The District 
of Columbia, Montgomery and Prince Georges Counties of Maryland, and 
the cities of Gaithersburg, Rockville, Takoma Park, Bowie, College 
Park, and Greenbelt; Arlington, Fairfax, Loudon and Prince William 
Counties of Virginia, and the cities of Alexandria, Falls Church, 
Town of Leesburg, Manassas, and Manassas Park. See The National 
Capital Planning Act of 1952, 40 U.S.C. 71.
    \543\ District Comments at 14.
    \544\ District Comments at 13.
    \545\ District Comments at 3.
---------------------------------------------------------------------------

    298. The Commission tentatively declines to grant the District's 
request. The Commission finds that granting independent operational 
authority for a significant number of years to the District as it 
requests would undermine the goals of this proceeding and be 
inconsistent with the tentative proposals the Commission have outlined 
in this Third FNPRM. Further, if, as the District requests, the 
Commission requires the D Block licensee to provide free service to the 
District, the Commission is concerned about the resulting impact on the 
commercial viability of a regional or nationwide D Block licensee. 
Moreover, as the Commission tentatively concluded elsewhere, the 
District would not be permitted to provide service to a wider range of 
users than would be eligible to use the nationwide wireless broadband 
network. While the Commission appreciates the District's desire to 
realize a financial return on the investment made in deploying the 
RWBN, the Commission observes that the NCR on multiple occasions 
knowingly undertook such action entirely at its own risk.\546\
---------------------------------------------------------------------------

    \546\ As the Commission observed in the Second Report and Order, 
in requesting its waiver to operate its broadband network, NCR 
specifically represented that it ``fully underst[ood] and accept[ed] 
that as a result of any rulemaking changes the Commission may make, 
the NCR will have to comply with the results of such rule making,'' 
including possible change of its network technology to a different 
standard or transition to a public safety broadband network managed 
by a single national licensee. Second Report and Order at para. 477 
(citing NCR Waiver Order at 1849 para. 8, quoting letter from Bill 
Butler, NCR Interoperability Program, OCTO-Wireless Programs Group, 
to Marlene H. Dortch, Secretary, FCC (Jan. 29, 2007) and attached e-
mail from Robert L. LeGrande, II, NCR Interoperability Program, 
Deputy Chief Technology Officer, District of Columbia, to Dana 
Shaffer, Deputy Chief, Public Safety and Homeland Security Bureau, 
FCC (Jan. 28, 2007)).
---------------------------------------------------------------------------

    299. While the Commission tentatively declines to grant the 
District's specific requests outlined above, the Commission remains

[[Page 57803]]

sensitive to the fact that the District has expended significant 
efforts to achieve broadband interoperability in the near-term for 
public safety users within the District through the RWBN. Therefore, 
consistent with the Second Report and Order, the Commission continues 
to contemplate that the Public Safety Broadband Licensee will consult 
NCR in negotiating the schedule for buildout of the shared 
interoperable network in the area served by the RWBN, and will provide 
NCR a reasonable amount of time to make any modifications necessary to 
incorporate the RWBN into the shared network.\547\ In this manner, the 
Commission hopes to minimize any delays that the District might 
otherwise experience in realizing the benefits of an interoperable 
broadband network geared towards public safety needs. In addition, to 
the extent that the D Block licensee building out the NCR areas seeks 
to utilize any hard assets of the RWBN, such as tower facilities, in 
constructing the 700 MHz interoperable shared broadband network, NCR 
may seek appropriate compensation for the use of such assets.
---------------------------------------------------------------------------

    \547\ See Second Report and Order at para. 478.
---------------------------------------------------------------------------

    300. As noted above, Alcatel-Lucent advocates changes to the 
Commission's local build-out rules to permit local public safety to 
build-out immediately, and thus prior to completion of a reauction of 
the D Block and selection of the air interface that would support 
nationwide interoperability. Alcatel-Lucent argues that, regardless of 
the technology deployed, the local network could be readily integrated 
into the regional or nationwide D Block license, and proposes that the 
D Block licensee would be required to ``compensate the local public 
safety entity based upon commercially reasonable standards.'' \548\
---------------------------------------------------------------------------

    \548\ Alcatel-Lucent Ex Parte at App. p. 2.
---------------------------------------------------------------------------

    301. While early deployment of public safety broadband networks 
would afford public safety agencies with the benefits of such networks 
more quickly, the Alcatel-Lucent proposal also poses a number of 
concerns. For example, unlike the Commission's current rules, which 
only contemplate the early build-out of systems utilizing the same 
technology as the D Block licensee, a public safety entity that engages 
in early deployment risks choosing a technology that is not compatible 
with the technology that will be deployed later by the D Block 
licensee. Although Alcatel-Lucent argues that any technology deployed 
by a public safety entity could be integrated into the regional or 
nationwide broadband network, the Commission has tentatively concluded 
that the nationwide interoperable network should have the same air 
interface technology. Accordingly, the Commission seeks comment on how 
it can ensure that a public safety entity engaging in such early build-
out selects a compatible technology that is fully interoperable with 
the Shared Wireless Broadband Network(s), meaning consistent with the 
Commission's tentative conclusions elsewhere concerning 
interoperability requirements for all operations in the 700 MHz public 
safety broadband spectrum, and thus not via gateways and bridges.
    302. The Commission also seeks comment on Alcatel-Lucent's proposal 
that a D Block licensee seeking to operate in the area be required to 
compensate early public safety builders based upon ``commercially 
reasonable standards.'' Should the Commission replace its current rule, 
which limits compensation for early build to the costs that the D Block 
licensee would have incurred, with one based on ``commercially 
reasonable standards?'' How would ``commercially reasonable terms'' be 
determined? What if the network constructed by the local public safety 
agency was of little worth to the D Block licensee, whether due to 
technology choices, network design, or a D Block licensee's existing 
resources in the area? Would reliance on such a basis for compensation 
lead to significant or intractable disputes either at the Commission or 
in courts?
    303. Given the potential costs and benefits in allowing early 
deployment of wireless public safety broadband networks, the Commission 
seeks comment on the appropriate balance between ensuring flexibility 
for public safety entities to engage in early deployment and providing 
some mechanism for compensation, if not under the existing rules, while 
also ensuring the Commission's goal of achieving nationwide 
interoperability across networks and maintaining the financial 
viability of the 700 MHz Public/Private Partnership. To what extent 
should public safety entities be allowed to deploy in advance of future 
build out by the D Block licensee? Are the Commission's existing rules 
on compensation for early build-out sufficient, or should some 
allowance be made for compensation for early build-out of systems using 
technologies that are different and incompatible with those to be 
deployed by the D Block licensee for that area? Would allowing 
compensation for early deployment of incompatible technologies stand as 
a disincentive to auction participation by commercial entities?
10. Open Platform/Wholesale Conditions
    304. Background. In the Second Report and Order the Commission 
declined to restrict the D Block licensee to operating exclusively on a 
``wholesale'' or ``open-access'' basis.\549\ The Commission concluded 
that it would not serve the goals of the Public/Private Partnership to 
impose special wholesale or open-access requirements on the D Block 
licensee.\550\ Instead, the Commission provided the D Block licensee 
with the flexibility to provide wholesale or retail services or other 
types of access to its network that comply with the Commission rules 
and the NSA.\551\ The Commission reasoned that the D Block licensee has 
the flexibility to choose the commercial service it will provide based 
on its determination of market needs; and that this flexibility 
improves the viability of the 700 MHz Public/Private Partnership and 
serves the interests of public safety.\552\ With respect to services 
offered to public safety, the Commission noted that the Public Safety 
Broadband Licensee will have the right to determine and approve 
specifications for public safety equipment used on the network and the 
right to purchase its own subscriber equipment from any vendor it 
chooses, to the extent such specifications and equipment were 
consistent with reasonable network control requirements established in 
the NSA.\553\
---------------------------------------------------------------------------

    \549\ Second Report and Order at para. 545.
    \550\ Id.
    \551\ Id.
    \552\ Id.
    \553\ Second Report and Order at paras. 405-406, 546.
---------------------------------------------------------------------------

    305. In the Second FNPRM, the Commission sought comment on whether 
the Commission should require the D Block licensee to operate on an 
exclusively wholesale or open access basis.\554\ The Commission asked 
for comment on how an open access environment might affect public 
safety, and whether the Commission needs to clarify or revise the 
operational responsibilities of the D Block and the Public Safety 
Broadband Licensees if the Commission were to adopt a wholesale 
approach.\555\ Further, the Commission sought comment on whether 
maintaining a flexible approach would improve the viability of the 
Public/Private Partnership.\556\
---------------------------------------------------------------------------

    \554\ Second FNPRM at para. 187.
    \555\ Id.
    \556\ Id.
---------------------------------------------------------------------------

    306. Comments. In response to the Second FNPRM, the Commission 
received some comments on this subject

[[Page 57804]]

matter. Motorola recommends that the Commission imposes an open 
platform condition and allows public safety to use any device or 
application provided it does not harm the network.\557\ Wireless RERC 
recommends consideration of an open access network contending that such 
a condition would allow public safety entities access to numerous 
suppliers of IP-based communications equipment and systems capable of 
interconnecting with the network.\558\ It believes that this would 
allow the communication of emergency information to be accessible in 
many formats.\559\ Cellular South argues that the Commission should 
impose a mandatory wholesale condition as a way to give smaller 
carriers entry into the market.\560\ PISC states that the Commission 
should impose both open access and wholesale conditions as they will 
help enhance competition and further public interest goals.\561\
---------------------------------------------------------------------------

    \557\ Motorola Comments at 11.
    \558\ Wireless RERC Comments at 14.
    \559\ Wireless RERC Comments at 15.
    \560\ Cellular South Comments at 3-4.
    \561\ PISC Comments at 7-10.
---------------------------------------------------------------------------

    307. Qualcomm argues that the Commission should not impose an open 
platform condition or forbid any particular business models.\562\ AT&T 
argues that the Commission should not impose an open access platform or 
a mandatory wholesale condition because it violates the flexible use 
approach which has proven to produce the best technological and 
business practices.\563\ It further asserts that a public/private 
partnership will fail if it is constrained by conditions not compatible 
to the reality of the market.\564\ Google recommends that the 
Commission not impose open access or wholesale conditions for the 
present time, and states they should keep a careful watch on anti-
consumer practices and intervene with such measures when 
appropriate.\565\ Coleman Bazelon argues against imposing a wholesale 
condition because the spectrum will be most valuable to the larger 
carriers.\566\ Ericsson argues against imposing a wholesale condition 
because such limitations on the business plan of the D Block licensee 
would make bidding less attractive to many potential bidders.\567\ CTIA 
recommends that the Commission base its rules on the same market 
oriented, flexible-use service rule model that has successfully created 
today's wireless marketplace.\568\ Verizon notes that the Commission 
should reject calls to impose wholesale-only and open access 
requirements.\569\ Motorola supports ``open access for public safety 
subscriber equipment and applications from multiple sources that meet 
public safety requirements.'' \570\
---------------------------------------------------------------------------

    \562\ Qualcomm Comments at 11.
    \563\ AT&T Comments at 18; AT&T Reply Comments at 10-14.
    \564\ AT&T Comments at 18.
    \565\ Google Comments at 10; Google Reply Comments at 1-4.
    \566\ Coleman Bazelon Comments at 22.
    \567\ Ericsson Comments at 35.
    \568\ CTIA Reply Comments at 8-9.
    \569\ Verizon Wireless Reply Comments at 19 n.43.
    \570\ Motorola Comments at 7.
---------------------------------------------------------------------------

    308. Discussion. In the Second Report and Order, the Commission 
declined to impose broad open access or wholesale service requirements 
in the 700 MHz band because the Commission found that it would not 
serve the goals of the Public/Private Partnership to mandate these 
requirements on the D Block licensee specifically.\571\ Rather, the 
Commission decided that the D Block licensee should be given the 
flexibility to choose the commercial service it would provide.\572\ In 
the Commission determination, the Commission noted that the effects of 
an open access environment were unknown, and, before it was mandated, 
it was necessary to understand the impact that mandatory provisions 
would have on the public safety environment.\573\ In this Third FNPRM, 
the Commission tentatively concludes not to impose a mandatory 
wholesale or open access condition on the D Block licensee. Comments in 
support of mandatory wholesale and open access provisions have not 
established the impact that these provisions would have on the public 
safety environment and the goals of the Public/Private Partnership. The 
Commission reaffirms that the D Block licensee has the flexibility to 
provide wholesale or retail services or other types of access to its 
network to comply with the Commission's rules and the NSA.\574\ The 
Commission believes that this flexibility improves the viability of the 
Public/Private Partnership, serves the interests of public safety, and 
is supported by the record.
---------------------------------------------------------------------------

    \571\ Second Report and Order, 22 FCC Rcd at 15476-77, 15478 
paras. 545, 549.
    \572\ Id., 22 FCC Rcd at 15476-77 para. 545.
    \573\ Id. (citing NPSTC 700 MHZ Further Notice Reply Comments at 
8 -9).
    \574\ Applicable rules include, but are not limited, provisions 
regarding leasing in Subparts Q and X of Part 1 of the Commission's 
rules.
---------------------------------------------------------------------------

    309. With respect to subscriber equipment and applications offered 
to public safety, the Commission proposes to retain the flexibility 
afforded to public safety subscribers in the Second Report and Order. 
Specifically, the Commission proposes to retain the rights of the 
Public Safety Broadband Licensee to determine the public safety 
equipment and applications that would be used on the network. The 
Commission also proposes to retain the rights of public safety entities 
to purchase their own subscriber equipment and applications from any 
vendor they choose, provided that the equipment and applications they 
purchase are consistent with reasonable network management requirements 
and approved by the Public Safety Broadband Licensee. The Commission 
seeks comment on these proposals.
11. Other Rules and Conditions
    310. In the Second FNPRM, the Commission sought comment generally 
on whether, aside from the subjects specifically that the Commission 
specifically discussed, the Commission should modify any other aspects 
of the rules or conditions for the 700 MHz Public/Private Partnership. 
The Commission tentatively concludes that, aside from the specific 
changes the Commission has proposed in this Third FNPRM,\575\ the 
Commission should retain the existing rules governing the 700 MHz 
Public/Private Partnership largely without modification.
---------------------------------------------------------------------------

    \575\ The specific rule changes the Commission proposes are 
included herein.
---------------------------------------------------------------------------

C. Public Safety Issues
1. Eligible Users of the Public Safety Broadband Spectrum
    311. Background. Section 337(a)(1) of the Communications Act 
requires the Commission to allocate 24 megahertz of spectrum between 
746 MHz and 806 MHz for ``public safety services.'' \576\ Section 
337(f)(1) of the Act defines ``public safety services'' as follows:
---------------------------------------------------------------------------

    \576\ 47 U.S.C. 337(a)(1).
---------------------------------------------------------------------------

    (f) Definitions--For purposes of this section:
    (1) Public Safety Services--The term ``public safety services'' 
means services--
    (A) The sole or principal purpose of which is to protect the safety 
of life, health, or property;
    (B) That are provided--
    (i) By State or local government entities; or
    (ii) By nongovernmental organizations that are authorized by a 
governmental entity whose primary mission is the provision of such 
services; and
    (C) That are not made commercially available to the public by the 
provider.\577\
---------------------------------------------------------------------------

    \577\ 47 U.S.C. 337(f).
---------------------------------------------------------------------------

In establishing license eligibility rules for the 700 MHz public safety 
band in Section 90.523 of the Commission's

[[Page 57805]]

rules the Commission sought to mirror these eligibility 
requirements.\578\
---------------------------------------------------------------------------

    \578\ 47 CFR 90.523.
---------------------------------------------------------------------------

    312. Section 90.523(e) includes specific eligibility provisions 
applicable to the Public Safety Broadband Licensee.\579\ Like the 
narrowband license eligibility provisions set forth in Sections 
90.523(a)-(d),\580\ the Commission intended the provisions of Section 
90.523(e) to ensure that the use of the 700 MHz public safety broadband 
spectrum, under the auspices of the Public Safety Broadband Licensee, 
be consistent with the statutory definition of ``public safety 
services'' in Section 337(f)(1)--both to ensure that the band remained 
allocated to such services, as required by Section 337(a)(1)--as well 
as to focus the Public Safety Broadband Licensee exclusively upon the 
needs of public safety entities that stand to benefit from the 
interoperable broadband network.\581\
---------------------------------------------------------------------------

    \579\ 47 CFR 90.523(e).
    \580\ 47 CFR 90.523(a)-(d).
    \581\ Second Report and Order, 22 FCC Rcd at 15421 para. 373. 
Specifically, the Commission required that the Public Safety 
Broadband Licensee satisfy the following eligibility criteria: (1) 
No commercial interest may be held in this licensee, and no 
commercial interest may participate in the management of the 
licensee; (2) the licensee must be a non-profit organization; (3) 
the licensee must be as broadly representative of the public safety 
radio user community as possible, including the various levels 
(e.g., state, local, county) and types (e.g., police, fire, rescue) 
of public safety entities; and (4) to ensure that the Public Safety 
Broadband Licensee is qualified to provide public safety services, 
an organization applying for the Public Safety Broadband License was 
required to submit written certifications from a total of at least 
ten geographically diverse state and local governmental entities, 
with at least one certification from a state government entity and 
one from a local government entity. See 47 CFR 90.523(e).
---------------------------------------------------------------------------

    313. In the Second FNPRM, the Commission identified certain aspects 
of Section 90.523 that may need clarification. First, the Commission 
identified two elements of the statutory definition of ``public safety 
services'' that the eligibility rules that could be construed as not 
applying explicitly enough to the Public Safety Broadband Licensee: (1) 
The Section 337(f)(1)(A) element that requires that the ``sole or 
principal purpose * * * is to protect the safety of life, health, or 
property;'' and (2) the Section 337(f)(1)(C) element that bars such 
services from being ``made commercially available to the public by the 
provider.'' \582\ Second, the Commission observed that there may be 
some ambiguity as to the applicability of the narrowband eligibility 
provisions in Sections 90.953(a)-(d) to the Public Safety Broadband 
Licensee.\583\ Accordingly, the Commission sought comment as to whether 
the Commission should make minor amendments to Section 90.523 to: (a) 
Clarify that the services provided by the Public Safety Broadband 
Licensee must conform to all the elements of the statutory definition 
of ``public safety services;'' and (b) clearly delineate the 
differences and overlap in the respective eligibility requirements of 
the narrowband licensees and the Public Safety Broadband Licensee.\584\
---------------------------------------------------------------------------

    \582\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
    \583\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
    \584\ Second FNPRM, 23 FCC Rcd at 8060 para. 28.
---------------------------------------------------------------------------

    314. As a corollary to examining whether the services provided by 
the Public Safety Broadband Licensee must conform to all the elements 
of the statutory definition of ``public safety services,'' the 
Commission also examined whether, under Section 337 of the Act and in 
furtherance of the policies that led to the creation of the Public 
Safety Broadband Licensee, the eligible users of the public safety 
broadband network that are represented by the Public Safety Broadband 
Licensee should be restricted to entities that provide ``public safety 
services,'' as defined in Section 337 of the Act.\585\ Specifically, 
the Commission observed that the question of whether the Public Safety 
Broadband Licensee's service qualifies as a ``public safety service'' 
under Section 337(f)(1) of the Act depends in part on the nature of the 
spectrum use by the entities to which it grants access to the shared 
broadband network.\586\
---------------------------------------------------------------------------

    \585\ Second FNPRM, 23 FCC Rcd at 8060-61 para. 29.
    \586\ Second FNPRM, 23 FCC Rcd at 8061 para. 30.
---------------------------------------------------------------------------

    315. The Commission further observed that to the extent that these 
entities are public safety entities that are accessing the shared 
network to provide themselves with communications services in 
furtherance of their mission to protect the safety of life, health or 
property, the Public Safety Broadband Licensee's services related to 
the public safety broadband spectrum would conform to the statutory 
definition of ``public safety services'' and would comport with the 
Commission's obligation under Section 337(a)(1) of the Act to allocate 
a certain amount of spectrum to such services.\587\ Under this 
interpretation, only entities providing public safety services, as 
defined in the Act, would be eligible to use the public safety spectrum 
of the shared network of the 700 MHz Public/Private Partnership on a 
priority basis, pursuant to the representation of the Public Safety 
Broadband Licensee.
---------------------------------------------------------------------------

    \587\ Second FNPRM, 23 FCC Rcd at 8061 para. 30.
---------------------------------------------------------------------------

    316. In arriving at this interpretation, the Commission observed 
that, under the statutory definition, a service might be considered a 
``public safety service'' even if its purpose is not solely for 
protecting the safety of life, health or property, so long as this 
remains its ``principal'' purpose.\588\ Taken a step further, the 
service provided by the Public Safety Broadband Licensee--providing 
public safety entities access to the spectrum for safety-of-life/
health/property communications operations--could conceivably include 
the provision of spectrum access to public safety entities for uses 
that do not principally involve the protection of life, health or 
property, provided that the principal purpose of the Public Safety 
Broadband Licensee's services, on the whole, is to protect the safety 
of life, health or property.\589\ The Commission further observed, 
moreover, that such a literal reading of the statute could permit the 
Public Safety Broadband Licensee to provide spectrum access to a small 
number of entities having little or no connection to public safety 
whatsoever, and potentially result in entire pockets within its 
nationwide service area served only by such non-public safety 
entities.\590\
---------------------------------------------------------------------------

    \588\ Second FNPRM, 23 FCC Rcd at 8061 para. 31 (citing 47 
U.S.C. 337(f)(1)(A)).
    \589\ Second FNPRM, 23 FCC Rcd at 8061 para. 31.
    \590\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
---------------------------------------------------------------------------

    317. Because such a result would appear inconsistent with the 
spirit of Section 337(f)(1)(A) of the Act, the Commission sought 
comment on whether, and to what degree, the Public Safety Broadband 
Licensee would be statutorily precluded by that subsection from 
representing and allowing any entity to use the network for services 
that are not principally for public safety purposes.\591\ The 
Commission also sought comment on whether there are other grounds--
specifically, the authorization requirement of Section 337(f)(1)(B)(ii) 
of the Act and/or public interest reasons--for prohibiting the Public 
Safety Broadband Licensee from providing network access to non-public 
safety entities or permitting public safety entities that it represents 
to use the network for services that do not have as their principal 
purpose the protection of the safety of life, heath or property, and 
instead requiring such non-permitted users, including critical 
infrastructure industry (CII) users, to be treated as commercial users 
who would obtain access to spectrum only through

[[Page 57806]]

commercial services provided solely by the D Block licensee.\592\
---------------------------------------------------------------------------

    \591\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
    \592\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
---------------------------------------------------------------------------

    318. Comments. The Commission did not receive any comments with 
respect to whether the Commission should make minor amendments to 
Section 90.523 of the Commission's rules to: (a) Clarify that the 
services provided through the Public Safety Broadband Licensee must 
conform to all the elements of the statutory definition of ``public 
safety services;'' and (b) clearly delineate the differences and 
overlap in the respective eligibility requirements of the narrowband 
licensees, set forth in Sections 90.953(a)-(d) of the Commission's 
rules, and the Public Safety Broadband Licensee, set forth in Sections 
90.953(e) of the Commission's rules to eliminate any ambiguity 
regarding the applicability of the former to the latter.
    319. The Commission did, however, receive a number of comments 
addressing the question of whether the Public Safety Broadband Licensee 
should be prohibited both from providing network access to non-public 
safety entities (i.e., entities that would not be eligible to hold 
licenses under Section 337 of the Act), and from allowing the public 
safety entities that it represents to use the network for services that 
do not have as their principal purpose the protection of the safety of 
life, heath or property. The National Public Safety Telecommunications 
Council (NPSTC), for example, observed that ``[t]here are common 
situations across the country where restoring critical infrastructure--
gas, electric, water, transportation or telecommunications--is at least 
as important as public safety use.'' \593\ On that basis, NPSTC argued 
that ``access [to the shared network] needs to be flexible and managed 
real-time, allowing the subscribers who are critical to the operation 
at hand, whatever and whomever that might be, use of required network 
resources.'' \594\ Under NPSTC's approach, access to the shared network 
by CII entities (and Federal agencies) ``would be directed to emergency 
circumstances and not general use of the network.'' \595\ Other 
commenters expressed similar views.\596\
---------------------------------------------------------------------------

    \593\ NPSTC Comments at 17.
    \594\ NPSTC Comments at 17-18.
    \595\ NPSTC Comments at 18. NPSTC recommends that the Commission 
``parallel the core concept of its rules contained in section 
90.523. That provision recognizes that critical infrastructure 
entities that are state or local government agencies may be 
licensed. It would allow access for Non Government Organizations 
(NGOs) that have the support of the relevant local or state 
government agency and the PSBL.'' Id.
    \596\ See, e.g., AASHTO Comments at 12; PSST Comments at 21; 
NATOA et. al. Comments at 13; TDC Comments at 2-3; International 
Municipal Signal Association, International Association of Fire 
Chiefs, Inc, Congressional Fire Services Institute, and Forestry 
Conservation Communications Association Joint Comments at 10; 
American Hospital Association Comments at 3; Association of 
Emergency Medical Technicians Comments at 4; Mayo Clinic Comments at 
4; City and County of San Francisco Comments at 4 n.3; TeleCommUnity 
Comments at 10; Ericsson Inc. Comments at 5; District of Columbia 
Comments at 3; Intelligent Transportation Society of America Reply 
Comments at 3. Joe Hanna Reply Comments at 4; American Petroleum 
Institute Reply Comments at 5-7.
---------------------------------------------------------------------------

    320. A few parties, however, argued a more circumscribed view that 
eligibility for access to the shared network through the Public Safety 
Broadband Licensee should be limited to entities that have as their 
principal purpose the protection of safety of life, health or property. 
APCO, for example, asserted that ``there are significant questions as 
to whether the Communications Act would allow the PSBL to offer service 
on public safety spectrum to entities not eligible for public safety 
spectrum under Section 337 of the Act.'' \597\ Accordingly, APCO 
suggested that the Commission ``should require that the D Block 
licensee provide CII entities with priority access to the commercial 
portion of the network (secondary, however, to public safety where 
relevant) consistent with current CII/wireless carrier agreements.'' 
\598\ The National Regional Planning Council (NRPC) asserted that the 
``principal purpose of the [shared network] spectrum should remain for 
public safety use [and] the PSBL should provide network access only to 
public safety entities that have as their principal purpose the 
protection of safety of life, health or property.'' \599\
---------------------------------------------------------------------------

    \597\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 8.
    \598\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 9.
    \599\ National Regional Planning Council Comments at 6. See also 
International Association of Fire Fighters Comments at 5.
---------------------------------------------------------------------------

    321. Discussion. As a preliminary matter, the Commission 
tentatively concludes that the Commission should revise Section 90.523 
of the Commission's rules to: (a) Clarify that the services provided 
through the Public Safety Broadband Licensee must conform to all the 
elements of the statutory definition of ``public safety services;'' and 
(b) clearly delineate the differences and overlap in the respective 
eligibility requirements of the narrowband licensees, set forth in 
Sections 90.953(a)-(d), and the Public Safety Broadband Licensee, set 
forth at Section 90.953(e) to eliminate any ambiguity regarding the 
applicability of the former to the latter. The Commission believes 
these clarifications would be accomplished through the rule revisions 
the Commission is proposing (discussed below) to address the issue of 
eligibility to access the public safety broadband network.
    322. With respect to the question of which entities should be 
eligible to access the public safety broadband network through the 
Public Safety Broadband Licensee, while the Commission recognizes and 
appreciate the important functions that CII entities can serve in 
supporting public safety entities during the resolution of emergencies, 
the Commission tentatively concludes that both statutory limitations 
and policy considerations preclude CII entities from accessing the 
public safety broadband network. The Commission proposes specific 
amendments to Section 90.523 of the Commission's rules included in this 
document to effect such tentative conclusion and to effect the general 
clarifications discussed above.
    323. In arriving at the Commission's tentative conclusion, the 
Commission necessarily begins with an analysis of Section 337 of the 
Act. Section 337(a)(1) requires the Commission to allocate 24 megahertz 
of spectrum between 746 MHz and 806 MHz for ``public safety services.'' 
\600\ As stated above, the statutory definition of ``public safety 
services,'' which is set forth in Section 337(f) of the Act, provides 
as follows:
---------------------------------------------------------------------------

    \600\ 47 U.S.C. 337(a)(1).
---------------------------------------------------------------------------

    (f) Definitions--For purposes of this section:
    (1) Public Safety Services--The term ``public safety services'' 
means services--
    (A) The sole or principal purpose of which is to protect the safety 
of life, health, or property;
    (B) That are provided--
    (i) By State or local government entities; or
    (ii) By nongovernmental organizations that are authorized by a 
governmental entity whose primary mission is the provision of such 
services; and
    (C) That are not made commercially available to the public by the 
provider.\601\
---------------------------------------------------------------------------

    \601\ 47 U.S.C. 337(f).
---------------------------------------------------------------------------

    Section 337(f)(1) specifies, among other criteria, that the sole or 
principal

[[Page 57807]]

purpose of the service for which the 700 MHz public safety spectrum is 
used must be to protect the safety of life, health, or property.\602\ 
While CII entities, such as utility companies, may play an important 
role on occasion supporting public safety entities to carry out their 
mission of protecting the safety of life, health, or property, this 
role is ancillary to the entities' principal purposes, such as 
providing electricity. By way of contrast, with respect to concerns 
raised by the American Hospital Association and other health care 
representative associations, the Commission observes that under these 
proposed amendments, the sole or principal purpose of the 
communications needs of hospitals and other health care facilities as 
well as ambulance and Emergency Medical Services involved in the 
provision of emergency medical care, are innately to protect the safety 
of life, health, or property.\603\ For example, the Commission 
envisions that in providing health care services to the sick or 
injured, responding to accident scenes, or in addressing public health 
emergencies such as pandemics or poisonous gas exposure, hospitals, 
health care facilities, and emergency medical service departments would 
be eligible users of the 700 MHz public safety spectrum.
---------------------------------------------------------------------------

    \602\ 47 U.S.C. 337(f)(1)(A).
    \603\ See American Hospital Association Comments at 3; 
Association of Emergency Medical Technicians Comments at 4; Mayo 
Clinic Comments at 4.
---------------------------------------------------------------------------

    324. Because CII entities would not be eligible to access the 700 
MHz public safety spectrum under Section 337, they also would not be 
eligible to gain access to this spectrum through the Public Safety 
Broadband Licensee. Even if authorized by a governmental entity 
pursuant to Section 337(f)(1)(B)(ii) of the Act, since the sole or 
principal purpose of the communications of CII entities are not to 
protect the safety of life, health or property, granting such access to 
otherwise ineligible CII entities through a bona fide eligible entity 
merely bypasses the separate requirement contained in Section 
337(f)(1)(A) of the Act. Permitting the Public Safety Broadband 
Licensee to provide public safety broadband spectrum access to non-
public safety entities also would exceed the carefully prescribed scope 
of its representation. Specifically, the eligibility criteria for the 
Public Safety Broadband Licensee requires, among other things, that 
such licensee be ``as broadly representative of the public safety radio 
user community as possible, including the various levels (e.g., state, 
local, county) and types (e.g., police, fire, rescue) of public safety 
entities,'' and be certified by at least ten geographically diverse 
state and local governmental entities whose ``primary mission is the 
provision of public safety services.'' \604\
---------------------------------------------------------------------------

    \604\ 47 CFR 90.523(e). The scope of the Public Safety Broadband 
Licensee's representation also is limited by the requirements 
pertaining to its Articles of Incorporation, including that they 
incorporate among its purposes that the Public Safety Broadband 
Licensee ``is to represent the interests of all public safety 
entities to ensure that their broadband spectrum needs are met in a 
balanced, fair, and efficient manner, in the interests of best 
promoting the protection of life and property of the American 
public.'' Second Report and Order at para. 375.
---------------------------------------------------------------------------

    325. The Commission also believes that permitting CII entities to 
access the 700 MHz public safety spectrum through the Public Safety 
Broadband Licensee--and thereby access this spectrum on a priority 
basis--would not be in the public interest. As the Commission observed 
in the Second FNPRM, given the limited amount of spectrum available to 
the public safety community, and particularly with respect to spectrum 
allocated for interoperability purposes, there is no margin for 
awarding priority access to entities that do not have as their sole or 
principal purpose the protection of the safety of life, health, or 
property.\605\ Permitting CII entities to access the 700 MHz public 
safety broadband spectrum would significantly dilute the band's 
available capacity, because the size of the CII community is relatively 
much larger than the size of the public safety community itself. The 
Commission thus believes the public interest would be best served by 
maximizing broadband spectrum capacity for bona fide public safety 
entities, and maximizing the growth potential for new broadband 
applications geared towards the needs of the public safety 
community.\606\ In any event, the Commission observes that CII entities 
may access the shared broadband network on a commercial basis as 
customers of the D Block licensee(s).
---------------------------------------------------------------------------

    \605\ Second FNPRM, 23 FCC Rcd at 8061-62 para. 32.
    \606\ For these same statutory-based and public interest 
reasons, the Commission do not believe such concerns would be 
alleviated by permitting CII entities access to the 700 MHz public 
safety broadband spectrum only on a limited, case-by-case, emergency 
basis, as administered locally or through the Public Safety 
Broadband Licensee. See, e.g., The National Association of 
Telecommunications Officers and Advisors (NATOA), the National 
Association of Counties (NACo), the National League of Cities (NLC), 
and the U.S. Conference of Mayors (USCM) Joint Comments at 13.
---------------------------------------------------------------------------

    326. To implement the Commission's tentative conclusions on the 
eligibility issues, the Commission is proposing revisions to Section 
90.523 of the Commission's rules (included in this document). First, 
the Commission proposes to revise the narrowband eligibility criteria 
to clarify that authorizations to deploy and operate systems in the 
769-775 MHz and 799-805 MHz (narrowband) frequency bands are limited to 
systems the sole or principal use of which is to protect the safety of 
life, health, or property, and which are not used to provide any 
service that is made commercially available by the license holder.\607\ 
Second, the Commission proposes to add a new provision setting forth 
the eligibility criteria for entities seeking to access the public 
safety broadband network through the Public Safety Broadband Licensee, 
which criteria incorporates the narrowband eligibility criteria and 
requires that the sole or principal purpose of such entities must be to 
protect the safety of life, health, or property.\608\ Third, the 
Commission proposes revisions to the Public Safety Broadband Licensee 
eligibility criteria to ensure that the services provided through the 
Public Safety Broadband Licensee conform to all the elements of the 
statutory definition of ``public safety services.'' \609\
---------------------------------------------------------------------------

    \607\ See proposed Section 90.523(a)(1), Appendix A.
    \608\ See proposed Section 90.523(b), Appendix A.
    \609\ See proposed Section 90.523(c)(5), Appendix A.
---------------------------------------------------------------------------

    327. Federal Usage of the Public Safety Broadband Network. With 
respect to whether the Commission should modify Section 2.103 of the 
Commission's rules to limit Federal public safety agency use of the 
public safety broadband spectrum to situations where such use is 
necessary for coordination of Federal and non-Federal activities,\610\ 
most parties opposed such a specific limitation. The Association of 
Public-Safety Communications Officials--International, Inc. (APCO), for 
example, asserts that it ``supports a provision that would allow 
Federal public safety use of the broadband network with the concurrence 
of the PSBL and local public users in the areas in which the Federal 
government desires to operate on the network.'' \611\ APCO further 
contends that ``[i]n general, Federal public safety use should be 
encouraged as a means of improving interoperability in emergency 
response activities, but not at the expense of providing sufficient

[[Page 57808]]

spectrum capacity for state and local governments.'' \612\
---------------------------------------------------------------------------

    \610\ Second FNPRM, 23 FCC Rcd at 8092 at para. 126.
    \611\ Association of Public-Safety Communications Officials--
International, Inc. Comments at 9.
    \612\ Association of Public-Safety Communications Officials--
International, Inc. Comments at 9. See also National Public Safety 
Telecommunications Council Comments at 18 (``[t]he 700 MHz public 
safety broadband network should reflect the much envisioned 
objective of interoperability across all levels of government during 
an emergency.''); National Regional Planning Council Comments at 6 
(``All governmental services, including federal and military, should 
be eligible.'').
---------------------------------------------------------------------------

    328. The Public Safety Spectrum Trust Corporation argues that ``the 
FCC should reaffirm the decision adopted in the Second R&O, wherein the 
PSST was given exclusive authority to approve Federal usage of the PSBL 
spectrum, a determination that will be made on a case-by-case basis 
consistent with the PSST's responsibility to promote interoperable 
public safety communications.'' \613\ The PSST further observes that 
``Federal users who do not require priority service on the SWBN are 
free to accept normal commercial service as regular D Block 
subscribers.'' \614\
---------------------------------------------------------------------------

    \613\ Public Safety Spectrum Trust Corporation Comments at 18-
19. See also National Public Safety Telecommunications Council 
Comments at 18; Ericsson, Inc. Comments at 31.
    \614\ Public Safety Spectrum Trust Corporation Comments at 19.
---------------------------------------------------------------------------

    329. Rivada Networks argues, however, that ``the Commission should 
streamline Section 2.103 to allow the most efficient and effective 
access of the public safety 700 MHz spectrum for Federal agencies that 
may be called upon to respond in the event of an emergency and 
coordinate with non-Federal State and local agencies.'' \615\ According 
to Rivada, ``[s]o long as there is `mutual agreement between the 
Federal and non-Federal entities' and that agreement includes 
coordination procedures to protect against interference, Federal use of 
this spectrum should be presumptively allowed.'' \616\
---------------------------------------------------------------------------

    \615\ Rivada Networks Comments at 6.
    \616\ Rivada Networks Comments at 6.
---------------------------------------------------------------------------

    330. Discussion. The Commission believes that it should reaffirm 
the decision adopted in the Second Report and Order to grant the PSBL 
``exercise of sole discretion, pursuant to Section 2.103 of the 
Commission's rules, whether to permit Federal public safety agency use 
of the public safety broadband spectrum, with any such use subject to 
the terms and conditions of the NSA.'' \617\ The Commission's decision 
in this regard was based upon the Commission's earlier determination 
that Section 337 of the Act does not bar Federal Government public 
safety entities from using the 700 MHz band under certain 
conditions.\618\ Specifically, the Commission determined that, while 
Section 337 of the Act does not expressly indicate that Federal 
government entities should be eligible, such ``omission simply reflects 
the fact that the Commission does not license Federal stations.'' \619\ 
The Commission further observed that Federal entities, although 
ineligible for Commission licensing in the 700 MHz band, already were 
eligible to receive authorization to use the 700 MHz public safety 
spectrum in accordance with the requirements set forth in Section 
2.103,\620\ which the Commission amended to clarify the permitted 
Federal use of this band.\621\ Key to the Commission's determination 
were its observations, based on the record then before it, that Federal 
entities provide noncommercial services the sole or principal purpose 
of which is to protect the safety of life, health, or property, and 
that allowing Federal entities to access the 700 MHz band is essential 
to promoting interoperability.\622\
---------------------------------------------------------------------------

    \617\ See Second Report and Order, 22 FCC Rcd at 15427 para. 
383.
    \618\ See Second Report and Order, 22 FCC Rcd at 15427 para. 383 
n.822 (citing Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety 
Agency Communication Requirements Through the Year 2010, WT Docket 
No. 96-86, First Report & Order and Third Notice of Proposed 
Rulemaking, 14 FCC Rcd 152, 185 para. 66 (1998); 47 CFR 2.103(b)).
    \619\ Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety 
Agency Communication Requirements Through the Year 2010, WT Docket 
No. 96-86, First Report & Order and Third Notice of Proposed 
Rulemaking, 14 FCC Rcd 152, 185 para. 66 (1998).
    \620\ See Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety 
Agency Communication Requirements Through the Year 2010, WT Docket 
No. 96-86, First Report & Order and Third Notice of Proposed 
Rulemaking, 14 FCC Rcd 152, 185-86 paras. 67-68 (1998).
    \621\ See 47 CFR 2.103(b).
    \622\ See Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety 
Agency Communication Requirements Through the Year 2010, WT Docket 
No. 96-86, First Report & Order and Third Notice of Proposed 
Rulemaking, 14 FCC Rcd 152, 185 para. 65 (1998).
---------------------------------------------------------------------------

    331. The Commission sees no reason to disturb the Commission's 
previous treatment of Federal use of the 700 MHz public safety 
spectrum. The Commission agrees with APCO that ``federal public safety 
use should be encouraged as a means of improving interoperability in 
emergency response activities,'' \623\ and that narrowing the 
Commission's existing rules to permit Federal use of the 700 MHz band 
only for Federal/non-Federal coordination activities would achieve an 
opposite result. The Commission observes that contrary to PSST's 
characterization, such authority need not necessarily be exercised only 
on a case-by-case basis. To this extent, the Commission agrees with 
Rivada that the Public Safety Broadband Licensee may establish more 
broad-reaching agreements with Federal public safety entities and thus 
avoid the need for case-by-case determinations in appropriate 
situations.\624\ Accordingly, the Commission tentatively concludes that 
the Commission will reaffirm its current rules under which the Public 
Safety Broadband Licensee has exercise of sole discretion, pursuant to 
Section 2.103 of the Commission's rules, whether to permit Federal 
public safety agency use of the public safety broadband spectrum, with 
any such use subject to the terms and conditions of the NSA.
---------------------------------------------------------------------------

    \623\ Association of Public-Safety Communications Officials-
International, Inc. Comments at 9.
    \624\ See Rivada Networks Comments at 6.
---------------------------------------------------------------------------

    332. Mandatory Usage of the Public Safety Broadband Network. In the 
Second FNPRM the Commission asked whether eligible public safety users 
should be required to subscribe to the shared broadband network for 
service, at reasonable rates, or be subject to some alternative 
obligation or condition promoting public safety network usage in order 
to provide greater certainty to the D Block licensee.\625\ Among other 
things, the Commission asked whether it should require the purchase of 
a minimum number of minutes, and how such obligation might be imposed; 
whether any such obligation should be conditioned on the availability 
of government funding for access; and whether the Commission should 
require public safety users to pay for access with such money.\626\
---------------------------------------------------------------------------

    \625\ Second FNPRM, 23 FCC Rcd at 8063 para. 37.
    \626\ Second FNPRM, 23 FCC Rcd at 8063 para. 37.
---------------------------------------------------------------------------

    333. The parties addressing these issues opposed any form of 
mandatory usage requirements. NPSTC, for example, asserted that, 
``[s]uch a mandate would be a historic departure from the Commission's 
role of leaving such choice to the consumer, public or private.'' \627\ 
The International Association of Fire Fighters asserted that ``all 
public safety agencies must be given the flexibility to choose whether 
or not to participate based on their own unique public safety needs and 
obligations.'' \628\ The PSST opposed imposition of a mandatory use or 
minimum public safety usage requirement on grounds that such

[[Page 57809]]

concept ``is inconsistent with the PSST's understanding of the FCC's 
original Public/Private Partnership arrangement and with the PSST's 
belief that network adoption must be entirely voluntary.'' \629\
---------------------------------------------------------------------------

    \627\ NPSTC Comments at 15.
    \628\ IAFF Comments at 5. See also NRPC Comments at 4; RPC 33 
Comments at 4; Lencioni Comments at 1; TeleCommUnity Comments at 11; 
Virginia Comments at 7; Verizon Wireless Comments at 10; RPC 20 
Reply Comments at 15-16.
    \629\ PSST Comments at 17-18.
---------------------------------------------------------------------------

    334. The City of Philadelphia added that, ``[w]here local 
governments are required to pay user fees over which they have no 
control, they must have the option of declining participation in the 
network where they determine the fees are unaffordable or local budget 
appropriations do not cover them.'' \630\ Moreover, the City of 
Philadelphia observed that, ``[m]andating participation in a national 
network is not in the public interest because it requires local 
governments to cede control over service and operations and to accept 
terms that may not meet the specific communications needs of their 
public safety agencies.'' \631\ The PSST commented that, ``[m]andating 
public safety use of the network, an option that the PSST does not 
support, could have the effect of disrupting existing business 
relationships between commercial operators and public safety 
organizations.'' \632\
---------------------------------------------------------------------------

    \630\ Philadelphia Comments at 6. See also NPSTC Comments at 15; 
Lencioni Comments at 1.
    \631\ Philadelphia Comments at 6.
    \632\ PSST Comments at 18. See also TE M/A-COM Comments at 9.
---------------------------------------------------------------------------

    335. The National Association of Telecommunications Officers and 
Advisors (NATOA), the National Association of Counties (NACo), the 
National League of Cities (NLC), and the U.S. Conference of Mayors 
(NATOA et al.) argued that ``there should be no mandatory requirement 
that public safety entities use the proposed network, but there must be 
a requirement that provides for interconnection of existing networks 
with the new network.'' \633\
---------------------------------------------------------------------------

    \633\ NATOA et al. Comments at 18.
---------------------------------------------------------------------------

    336. Concerning the availability of government funding for access, 
the NRPC, for example, argued that ``[i]f a local public safety entity 
elects not to subscribe to the new network, the Commission would 
request the Commission's consideration to not develop regulatory rules 
that impose any obligations on the agency based on the availability of 
any government grant monies or any monies, regardless of origin.'' 
\634\ Finally, APCO and NPSTC, also questioned the Commission's legal 
authority to impose such a mandate.\635\
---------------------------------------------------------------------------

    \634\ NRPC Comments at 4. See also APCO Comments at 13 (arguing 
that the Commission lacks authority to require ``use of the public 
safety broadband network [as] a condition of government funding.'').
    \635\ See APCO Comments at 13; NPSTC Comments at 15.
---------------------------------------------------------------------------

    337. Discussion. The Commission tentatively concludes not to 
establish any mandate requiring eligible public safety users to 
subscribe to the shared broadband network for service, or subject such 
entities to any other alternative obligations or conditions promoting 
public safety network usage. Specifically, the Commission is concerned 
that establishing usage mandates would potentially interfere with local 
public safety needs and obligations unique to their communities, as 
well as with existing network investments or business relationships 
with other vendors and service providers. In addition, any mandatory 
subscription obligation would be inconsistent with the Commission's 
continued expectation that voluntary participation will be driven by 
the shared network build undertaken by the D Block licensee(s), 
resulting state-of-the-art broadband applications, and economies of 
scale made possible under the public/private partnership approach.\636\
---------------------------------------------------------------------------

    \636\ See, e.g., Second Report and Order, 22 FCC Rcd at 15431 
para. 396.
---------------------------------------------------------------------------

2. Provisions Regarding the Public Safety Broadband Licensee
a. Non-Profit Status
    338. Background. Among other criteria for eligibility to hold the 
Public Safety Broadband License that the Commission established in the 
Second Report and Order, the Commission provided that no commercial 
interest may be held in the Public Safety Broadband Licensee, that no 
commercial interest may participate in the management of the licensee, 
and that the licensee must be a non-profit organization.\637\ The 
Commission also indicated, however, that, as part of its administration 
of public safety access to the shared wireless broadband network, the 
Public Safety Broadband Licensee might assess ``usage fees to recoup 
its expenses and related frequency coordination duties.'' \638\
---------------------------------------------------------------------------

    \637\ See Second Report and Order, 22 FCC Rcd at 15421 para. 
421.
    \638\ Id. at 15426 para. 383.
---------------------------------------------------------------------------

    339. In the Second FNPRM, the Commission sought to further examine 
the Public Safety Broadband Licensee's non-profit status, and issues 
related to alternative funding mechanisms, including excess revenue 
derived from any access fees that the Public Safety Broadband Licensee 
might charge. With respect to the requirement that the Public Safety 
Broadband Licensee be organized as a non-profit organization, in the 
Second FNPRM, the Commission sought comment as to whether the 
Commission should specify that the Public Safety Broadband Licensee and 
all of its members (in whatever form they may hold their legal or 
beneficial interests in the Public Safety Broadband Licensee) must be 
non-profit entities.\639\ While the Commission acknowledged that the 
Public Safety Broadband Licensee may need to contract with attorneys, 
engineers, accountants, and other similar advisors or service providers 
to fulfill its responsibilities to represent the interests of the 
public safety community, the Commission asked whether the Commission 
should restrict the Public Safety Broadband Licensee's business 
relationships pre- and post-auction with commercial entities, and if 
so, what relationships should and should not be permitted.\640\
---------------------------------------------------------------------------

    \639\ Second FNPRM, 23 FCC Rcd at 8064 para. 40.
    \640\ Second FNPRM, 23 FCC Rcd at 8064 para. 40.
---------------------------------------------------------------------------

    340. The Commission also sought comment as to whether the 
Commission should clarify that the Public Safety Broadband Licensee may 
not obtain debt or equity financing from any source, unless such source 
is also a non-profit entity.\641\ The Commission asked whether such a 
restriction would be warranted to ensure that the Public Safety 
Broadband Licensee is not unduly influenced by for-profit motives or 
outside commercial influences in carrying out its official 
functions.\642\ The Commission also sought comment on ways to allow 
necessary financing while still ensuring the independence of the Public 
Safety Broadband Licensee, such as whether to allow working capital 
financing from commercial banks and whether to restrict the assets of 
the Public Safety Broadband Licensee that can be pledged as security 
for such loans, and/or whether there are other types of loans or 
alternative funding sources that the Commission should allow the Public 
Safety Broadband Licensee to employ.\643\
---------------------------------------------------------------------------

    \641\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
    \642\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
    \643\ Second FNPRM, 23 FCC Rcd at 8064-65 para. 41.
---------------------------------------------------------------------------

    341. As a separate line of inquiry, the Commission sought comment 
in the Second FNPRM on the best way to fund the Public Safety Broadband 
Licensee's operations. The Commission asked, for example, whether the D 
Block licensee should be required to pay the Public Safety Broadband 
Licensee's administrative costs and, if so, whether

[[Page 57810]]

such obligation should be capped.\644\ Assuming government-allocated 
funding were available, the Commission asked whether such funding 
mechanisms would be the best solution for funding the Public Safety 
Broadband Licensee.\645\ The Commission further asked whether the 
Commission has legal authority to support the Public Safety Broadband 
Licensee's operational expenses through the Universal Service Fund 
\646\ or Telecommunications Development Fund,\647\ and whether such 
approaches would be appropriate.\648\
---------------------------------------------------------------------------

    \644\ Second FNPRM, 23 FCC Rcd at 8065 para. 42.
    \645\ Second FNPRM, 23 FCC Rcd at 8065 at para. 42.
    \646\ See, e.g., 47 U.S.C. 254(c)(1), (h).
    \647\ See, e.g., 47 U.S.C. 614.
    \648\ Second FNPRM, 23 FCC Rcd at 8065 para. 43.
---------------------------------------------------------------------------

    342. The Commission also sought comment on whether any excess 
revenue generated by the fees or other sources of financing obtained by 
the Public Safety Broadband Licensee from non-profit entities should be 
permitted and, if so, how they should be used.\649\ The Commission 
asked, for example, whether the Public Safety Broadband Licensee should 
be permitted to hold a certain amount of excess income as a reserve 
against possible future budget shortfalls or whether such excess income 
should instead be used for the direct benefit of the public safety 
users of the network, such as for the purchase of handheld 
devices.\650\ Finally, the Commission sought comment on whether the 
Public Safety Broadband Licensee may legitimately incur certain 
reasonable and customary expenses incurred by a business, consistent 
with the constitution of the Public Safety Broadband Licensee and the 
nature of its obligations as established by the Commission.\651\
---------------------------------------------------------------------------

    \649\ Second FNPRM, 23 FCC Rcd at 8065-66 para. 44.
    \650\ Second FNPRM, 23 FCC Rcd at 8065-66 para. 44.
    \651\ Second FNPRM, 23 FCC Rcd at 8066 para. 45.
---------------------------------------------------------------------------

    343. Comments. The Commission received comments on most of the 
issues raised in the Second FNPRM, as broken out below.
(i) Clarifying the Public Safety Broadband Licensee's Non-Profit Status
    344. Only a few commenters addressed the question of clarifying the 
Public Safety Broadband Licensee's non-profit status. NATOA endorsed 
requirements that ``no commercial interest may be held in the Public 
Safety Broadband Licensee, that no commercial interest may participate 
in the management of the licensee, and that the licensee must be a non-
profit organization.'' \652\ AT&T and others asserted that the 
Commission should ensure ``that the PSBL must be a nonprofit entity 
that will use the network solely for public safety purposes.'' \653\ 
TeleCommUnity argued that ``in addition to the public policy argument 
that favors the requirement that the [PSBL] be a non-profit 
organization, there could be an argument that Section 337 of the Act 
requires that the Licensee be so.'' \654\
---------------------------------------------------------------------------

    \652\ NATOA Comments at 14-15 (internal footnote omitted).
    \653\ AT&T Comments at 19, 21. See also Eads Comments at 1; 
Lencioni Comments at 2; Philadelphia Comments at 5.
    \654\ TeleCommUnity Comments at 11.
---------------------------------------------------------------------------

    345. Discussion. The Commission agrees with commenters who argue 
that the Public Safety Broadband Licensee should remain a non-profit 
entity and see no reason at this time to alter the non-profit status of 
the Public Safety Broadband Licensee. As discussed in the following 
paragraphs and elsewhere in this Third FNPRM, the Commission is 
proposing significant steps to insulate the Public Safety Broadband 
Licensee from undue commercial influence, and additional reporting and 
auditing requirements to provide greater oversight of the Public Safety 
Broadband Licensee's activities. The Commission believes these changes 
should further clarify the non-profit requirement of the Public Safety 
Broadband Licensee.
(ii) Restrictions on PSBL Business Relationships
    346. With respect to the question of restricting the Public Safety 
Broadband Licensee's business relationships pre- and post-auction with 
commercial entities generally, the record reflects mixed views. The 
PSST asserted that ``the current restrictions regarding its agent/
advisor relationships are more than adequate to prevent improper 
commercial influence, and the FCC should not place additional 
restrictions on the PSST's business relationships and its agent/advisor 
relationships.'' \655\ Instead, the PSST argued, ``the Commission 
should provide greater clarity regarding its restriction on `commercial 
interests' participating in management of the license.'' \656\ The PSST 
observed that the current rules governing the PSBL ``allow for 
arrangements with third parties to assist with the management or 
operation of the public safety-side of the network,'' which 
arrangements the PSST asserted ``are invaluable for a variety of 
reasons, including access to expertise and funding, in assisting the 
PSST to do its job effectively.'' \657\
---------------------------------------------------------------------------

    \655\ PSST Comments at 49.
    \656\ PSST Comments at 49.
    \657\ PSST Comments at 49.
---------------------------------------------------------------------------

    347. The PSST further indicated that while ``there have been abuses 
in the past involving impermissible relationships between licensees and 
third parties that would cause the FCC to adopt [ ] prophylactic 
measures,'' it is also important ``that the FCC not so restrict the 
PSBL in its ability to contract for needed services that it is 
prevented from fulfilling the very functions that the FCC has 
determined need to be undertaken on behalf of public safety.'' \658\ In 
this regard, the PSST added that it ``has a strong preference for 
outsourcing services to others where practical and appropriate, thereby 
avoiding the need for a large internal staff with associated employer 
obligations.'' \659\ The PSST further argued that ``provision of 
management services or other types of support that are consistent with 
[the] Intermountain Microwave or Motorola [standards for de jure and de 
facto control] and would not involve prohibited economic interests 
should be permitted under `incentive-compatible' standards.'' \660\ In 
addition, the PSST argued that ``any new `incentive-compatible' rules 
must not unduly restrict the PSST's ability to obtain funding, so long 
as there is no commercial interest participating in management of the 
licensee.'' \661\
---------------------------------------------------------------------------

    \658\ PSST Comments at 49.
    \659\ PSST Comments at 50.
    \660\ PSST Comments at 50 (citing Intermountain Microwave, 12 
FCC 2d 559 (1963); Applications of Motorola, Inc. for 800 MHz 
Specialized Mobile Radio Trunked Systems, File Nos. 507505 et al., 
Order (issued July 30, 1985) (Private Radio Bureau)).
    \661\ PSST Comments at 50.
---------------------------------------------------------------------------

    348. Finally, the PSST states that its ``engagement of Cyren Call 
is consistent with those FCC requirements.'' \662\ The PSST explained 
that ``[b]ecause it had no governmental or other funding or assets to 
serve as collateral for a commercial loan, [it] obtained a deferral 
from Cyren Call of amounts due, and even obtained an advance loan from 
Cyren Call that reflects arm's-length, normal commercial terms.'' \663\ 
The PSST asserts, however, that ``Cyren Call has no management 
relationship with or management role within the PSST, has no legal or 
beneficial interest in the PSST, and does not participate in the PSST's 
management.'' \664\ The PSST further asserts that ``[t]here are no 
conditions, covenants or other features of Cyren Call's service 
agreement with or loan to the PSST that would allow

[[Page 57811]]

Cyren Call to influence the PSST's policy or management 
determinations.'' \665\ Cyren Call stated that its arrangements with 
the PSST did not provide it ``with any measure of control or undue 
influence over the PSST's activities or its decisionmaking process.'' 
\666\
---------------------------------------------------------------------------

    \662\ PSST Comments at 50-51.
    \663\ PSST Comments at 51.
    \664\ PSST Comments at 51.
    \665\ PSST Comments at 51.
    \666\ Cyren Call Reply Comments at 6.
---------------------------------------------------------------------------

    349. NPSTC asserted that the ``experience and expertise in 
deploying and operating wireless communications is a narrow field'' 
and, thus, ``the PSBL should have the ability to select its advisors to 
discharge its duties effectively.'' \667\ APCO, however, noted that 
``the Commission should require that the PSBL adopt strict conflict of 
interest requirements that include prohibiting its advisors from 
engaging in business activities resulting from the advice provided to 
the PSBL [and] from establishing business relationships with equipment 
vendors, service providers, and others with a financial interest in the 
decisions of the PSBL.'' \668\ Further, as explained more fully below, 
some commenters expressed concerns regarding the propriety of 
permitting the PSBL to be funded by any of its for-profit advisors.
---------------------------------------------------------------------------

    \667\ NPSTC Comments at 21. See also Hanna Reply Comments at 2; 
NASEMSO Reply Comments at 2.
    \668\ APCO Comments at 17.
---------------------------------------------------------------------------

    350. Discussion. The Commission agrees with APCO that the 
Commission should subject the Public Safety Broadband Licensee and its 
advisors, agents, and managers to strict conflict of interest 
requirements. The Commission believes safeguards should be implemented 
to ensure that no entity is able to influence the Public Safety 
Broadband Licensee's pre-auction activities in a manner that might 
benefit that entity's, or a related entity's, plans to participate in 
the upcoming D Block auction, or to gain any advantage as compared to 
other bidders by virtue of information obtained from the Public Safety 
Broadband Licensee during the course of its relationship with the 
Public Safety Broadband Licensee. Thus, the Commission tentatively 
concludes that the Commission should adopt conflict of interest 
requirements making entities that are serving as advisors, agents, or 
managers (or their related entities, including affiliates and those 
controlled by any officer or director of such an entity) of the PSBL 
ineligible to become a D Block licensee unless such an applicant 
completely severs its business relationship with the Public Safety 
Broadband Licensee no later than 30 days following the release date of 
an order adopting final rules in this proceeding.\669\ For purposes of 
this eligibility rule, the Commission proposes to define the terms 
officer, director, and affiliate in the same manner as those terms are 
currently defined in Section 1.2110(c) of the Commission's rules, which 
govern competitive bidding, relating to designated entity eligibility 
because the Commission has found those definitions effective when 
assessing relationships among parties related to an applicant.\670\ The 
Commission seeks comment on this tentative conclusion and proposed 
rule.
---------------------------------------------------------------------------

    \669\ In this regard, the Commission notes that Cyren Call 
currently has an outstanding loan extended to the PSST. The 
Commission seeks comment on whether Cyren Call should be allowed to 
remain a creditor of the PSST if it wishes to be eligible to become 
a D Block licensee.
    \670\ See 47 CFR 1.2110(c).
---------------------------------------------------------------------------

    351. The Commission also tentatively concludes that the Commission 
should adopt conflict of interest requirements requiring entities that 
are serving as advisors, agents, or managers (or their related 
entities, including affiliates and those controlled by any officer or 
director of such an entity) of the PSBL from establishing business 
relationships or otherwise being affiliated with, or holding a 
controlling interest in, equipment vendors, service providers, or other 
entities that have a direct financial interest in the decisions of the 
PSBL.\671\ These requirements would apply to both pre-auction and post-
auction activities. The Commission seeks comment on this tentative 
conclusion and proposed rule.
---------------------------------------------------------------------------

    \671\ For purposes of defining ``affiliated'' and ``controlling 
interest,'' the Commission propose to use the definitions contained 
at 47 CFR 1.2110(c).
---------------------------------------------------------------------------

    352. The Commission does not believe that the regulations the 
Commission proposes today will interfere with the Public Safety 
Broadband Licensee's ability to discharge its duties effectively. The 
Commission also considers it necessary to implement regulations in 
order to prevent impropriety and/or the appearance of impropriety in 
the Public Safety Broadband Licensee's discharge of its duties. The 
Commission agree with the PSST on the necessity of avoiding regulations 
that overly restrict the Public Safety Broadband Licensee's ability to 
engage in necessary transactions with third parties. The Commission 
believes that the requirements the Commission propose here strike the 
appropriate balance between providing the Public Safety Broadband 
Licensee with the flexibility it requires to utilize expert advisors, 
agents, and managers, and to make necessary contracts with third 
parties, while ensuring that the Public Safety Broadband Licensee's 
decisions are insulated from potential undue influences.
(iii) Funding of the PSBL Through the D Block Licensee
    353. With respect to funding the PSBL through the D Block licensee, 
there was support for such action, in various forms, including via an 
upfront payment as well as through recurring payments, such as in the 
form of a spectrum lease fee. The PSST stated that, as a non-profit, 
tax-exempt organization subject to IRS rules, the PSST ``will need to 
charge usage fees to public safety users, and it will need to obtain a 
lease payment from the D Block licensee.'' \672\ The PSST added that 
``[b]ecause the bulk of the spectrum likely will be used by the D Block 
licensee to provide services from which it expects to realize a profit, 
the PSST believes it logically should obtain most of its funding from 
the lease payment.'' \673\ The PSST, however, acknowledged that ``there 
must be an appropriate balance of public safety fees paid for SWBN 
usage and a D Block spectrum lease payment,'' which the PSST argued 
should be evaluated, along with related issues, and addressed in the 
NSA.\674\
---------------------------------------------------------------------------

    \672\ PSST Comments at 23-24.
    \673\ PSST Comments at 23-24.
    \674\ PSST Comments at 24.
---------------------------------------------------------------------------

    354. APCO asserted that, lacking conventional forms of security, it 
will be difficult for the PSBL to obtain debt financing and, therefore, 
an FCC rule provision ``that a specific dollar amount must be made 
available by the D Block licensee to the PSBL to pay back loans 
obtained from financial institutions to provide operational funds'' 
would be appropriate.\675\ APCO further suggested ``requiring the D 
Block licensee to establish a trust fund with a specified dollar amount 
that the PSBL would be allowed to draw from and pay its operating 
expenses * * * provided there is a clearly established and supported 
operating budget.'' \676\ APCO stated that the Commission should 
continue to require that the D-Block winner pay a spectrum lease fee to 
the Public Safety Broadband Licensee as part of the NSA, but asked the 
Commission to provide ``some further definition * * * to provide 
auction participants with greater certainty,'' and also stated that a 
``fee cap may also be appropriate.'' \677\
---------------------------------------------------------------------------

    \675\ APCO Comments at 18.
    \676\ APCO Comments at 18.
    \677\ APCO Comments at 18. However, APCO warned against the D-
Block winner directly paying the PSBL's expenses ``as that would 
create potential conflicts of interest.'' Id.

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[[Page 57812]]

    355. The NRPC stated that the ``D Block licensee should be required 
to pay all costs identified as necessary with regard to the [PSBL's] 
administrative costs.'' \678\ In the context of its revised plan for 
implementing a shared broadband network, Televate proposed that the ``D 
Block winner provides billing services to the public safety community 
and collects a service fee, per line, to fund PSST baseline 
operations.'' \679\
---------------------------------------------------------------------------

    \678\ NRPC Comments at 5.
    \679\ Televate Comments at 13.
---------------------------------------------------------------------------

    356. Both the PSST and APCO asserted that the PSBL should be 
allowed to obtain a lease payment from the D Block licensee to cover 
the PSBL's operational funding.\680\ NENA stated that ``in the absence 
of government funding for the public safety broadband licensee, the 
licensee must be permitted to generate revenues to ensure its 
viability.'' \681\ AT&T asserted that the ``Commission must promulgate 
guidelines that address the spectrum usage fees the PSBL may charge 
commercial partners for access to 700 MHz public safety broadband 
spectrum,'' and these guidelines ``should clarify that any lease 
agreements be negotiated using commercial practices for cost recovery 
for the PSBL.'' \682\ AT&T urged that these guidelines ``address how 
charges for network usage and spectrum access will be structured.'' 
\683\
---------------------------------------------------------------------------

    \680\ See PSST Comments at 23-24; APCO Comments at 18.
    \681\ NENA Comments at 4-5.
    \682\ AT&T Comments at 19.
    \683\ AT&T Comments at 19. AT&T argued that the lack of this 
information ``was a factor cited as contributing to the failed D 
Block auction.'' Id.
---------------------------------------------------------------------------

    357. With respect to excess revenues, the PSST stated that ``there 
would be nothing improper in the PSST undertaking an activity that 
might generate revenue that exceeded its expenses, provide the activity 
was in furtherance of public safety interests.'' \684\ APCO suggested 
that ``all funds generated through spectrum lease fees in excess of 
those deemed appropriate to cover the operating expenses of the PSBL be 
held in trust with a not-for-profit foundation [from which] public 
safety users have the ability to apply for grant funding * * * to be 
used to cover the cost of equipment, devices, and any operating fees 
associated with the use of the nationwide broadband network.'' \685\ 
APCO also asked the Commission not to ``impose any arbitrary 
restrictions on [any] excess revenues * * * of the PSBL.'' \686\ APCO 
did, however, indicate support for Commission oversight of the PSBL's 
use of any excess revenues.\687\ Region 33 states that any excess 
revenues should ``be used to offset operating expenses with the 
remainder going toward infrastructure improvements.'' \688\ Region 33 
also adds ``limiting the amount of time excess funds can be retained'' 
would allow use of excess income as a reserve against possible future 
budget shortfalls, but also provide funding for ``improvements to 
infrastructure or general rate reductions for users.'' \689\
---------------------------------------------------------------------------

    \684\ PSST Comments at 22.
    \685\ APCO Comments at 18-19.
    \686\ APCO Comments at 19.
    \687\ APCO Comments at 19.
    \688\ Region 33 Comments at 6.
    \689\ Region 33 Comments at 6.
---------------------------------------------------------------------------

    358. Discussion. The Commission agrees with commenters that it is 
reasonable for the D Block licensee(s) to cover the Public Safety 
Broadband Licensee's administrative and operating expenses. The Public 
Safety Broadband Licensee's non-profit status as discussed above and 
the Commission's related concerns that no entangling financial 
relationships compromise its core mission of representing the public 
safety community point to establishing a direct funding mechanism 
between the D Block licensee(s) and the Public Safety Broadband 
Licensee. Further, the Commission finds merit in ensuring that the 
administrative and operating expenses of the Public Safety Broadband 
Licensee are finely tuned to its core mission and fully transparent to 
key stakeholders. Thus, the Commission tentatively concludes that the 
Public Safety Broadband Licensee shall establish an annual budget and 
submit this budget to the Chief, WTB and Chief, PSHSB, on delegated 
authority, for approval. The proposed annual budget to be submitted by 
the Public Safety Broadband Licensee would enable the Commission to 
ensure that the Public Safety Broadband Licensee is acting in a 
fiscally responsible manner and not engaging in activities that exceed 
the scope of its prescribed roles and responsibilities. The Public 
Safety Broadband Licensee already is required to submit a full 
financial accounting on a quarterly basis,\690\ which helps serve the 
same purpose. As an additional measure, the PSBL also would need to 
have an annual audit conducted by an independent auditor. In addition, 
the Commission is proposing to provide that the Commission reserves the 
right, as delegated to the Chief, PSHSB, to request an audit of the 
Public Safety Broadband Licensee's expenses at any time.
---------------------------------------------------------------------------

    \690\ See 47 CFR 90.528(g).
---------------------------------------------------------------------------

    359. With respect to the mechanism of funding of the Public Safety 
Broadband Licensee, the Commission tentatively concludes that the 
nationwide D Block licensee or, if the D Block is licensed on a 
regional basis, each regional D Block licensee, will make an annual 
payment to the Public Safety Broadband Licensee of, in the aggregate, 
the sum total of $5 million per year. These payments would be in 
consideration for the D Block licensee(s)' leased access on a secondary 
basis to the public safety broadband spectrum. In the event that the D 
Block is licensed on a regional basis, the Commission will specify 
after the close of the auction the annual payments required for each 
license won at auction, such that the total $5 million in annual 
payments to the Public Safety Broadband Licensee is apportioned on a 
per region basis, based upon total pops per region. Because these 
figures are tied to the regional D Block licenses actually won at 
auction, the Commission may adjust them to account for any regional D 
Block licenses that may go unsold in the next D Block auction but which 
are successfully reauctioned on a subsequent date. The annual payment 
funds will be placed into an escrow account managed by an unaffiliated 
third party, such as a major commercial financial institution, for the 
benefit of the Public Safety Broadband Licensee. The Commission will 
require the Public Safety Broadband Licensee to seek approval of its 
selected escrow account manager from the Chief, PSHSB. The Public 
Safety Broadband Licensee would draw funds on this account to cover its 
annual operating and administrative expenses in a manner consistent 
with its submitted annual budget for that fiscal year.\691\ The 
entirety of the Public Safety Broadband Licensee's annual operating 
budget shall be based on these annual payments. The Commission seeks 
comment on these tentative conclusions and proposals, including when 
the D Block licensee(s) should make their initial payment to the Public 
Safety Broadband Licensee. Specifically, comment is requested on 
whether the D Block licensee(s) should make funding available prior to 
the commencement of the NSA negotiation process. As a related matter, 
the Commission also seeks comment on when it should first require the 
Public Safety Broadband Licensee to develop its first annual

[[Page 57813]]

budget, and when the Commission should require the independent audit.
---------------------------------------------------------------------------

    \691\ In the event that the PSST continues to serve as the PSBL, 
it may, as part of its first submitted annual budget, account for 
its administrative and operational expenses to date.
---------------------------------------------------------------------------

    360. To the extent that the Public Safety Broadband Licensee's 
actual operating expenses for a given fiscal year turn out to be less 
than its proposed budget, such that there are excess funds left over at 
the end of that fiscal year from the annual payment(s) made by the D 
Block licensee(s) at the beginning of that year, those excess funds 
would be applied towards the Public Safety Broadband Licensee's funding 
of administrative or operational expenses for the following fiscal 
year, or to fund secondary activities, such as the purchase of 
equipment for the benefit of individual public safety agencies. The 
Commission expects that the various reporting and auditing requirements 
will provide the Commission with sufficient ability to ensure that the 
Public Safety Broadband Licensee's expenses are reasonable and that it 
is operating within the scope of its prescribed role and 
responsibilities.\692\
---------------------------------------------------------------------------

    \692\ As discussed elsewhere, the Commission propose certain 
limitations on the role and responsibilities of the Public Safety 
Broadband Licensee, which should lead to significantly decreased 
expenses than what may have originally been envisioned by the PSST.
---------------------------------------------------------------------------

    361. Finally, in light of the funding mechanism the Commission 
proposes above, the Commission tentatively concludes that the 
Commission will not permit the Public Safety Broadband Licensee to 
charge a separate lease fee to the D Block licensee(s) for their use of 
the public safety broadband spectrum. As noted elsewhere, given the 
funding mechanism the Commission is tentatively proposing above, the 
Commission is also tentatively proposing not to permit the Public 
Safety Broadband Licensee to obtain loans or financing from any other 
sources.
(iv) Funding of the PSBL Through the Federal Government
    362. Commenters generally questioned the legality of funding the 
Public Safety Broadband Licensee's operations through the Universal 
Service Fund (USF) and/or Telecommunications Development Fund (TDF). 
APCO, for example, asserted that from a ``public policy perspective, 
there is much to support using USF'' to support the PSBL, but noted 
``potential legal issues'' in that the PSBL is not a common 
carrier.\693\ NPSTC observed that the ``revenue base of [the USF and 
TDF] is already subject to varying constraints and demands, if not 
controversy,'' concluding that ``[t]he risks associated with these 
alternatives appears to outweigh any potential benefit.'' \694\
---------------------------------------------------------------------------

    \693\ APCO Comments at 19. See also PSST Comments at 25. 
However, the PSST does recommend use of the USF and TDF to fund the 
D Block licensee's activities. Id.
    \694\ NPSTC Comments at 20-21.
---------------------------------------------------------------------------

    363. With respect to other sources of Federal funding for the PSBL, 
many commenters supported such action, noting Congresswoman Jane 
Harmon's proposed legislation \695\ to achieve this result.\696\ NATOA, 
for example, asserted that ``government funding of the PSBL is the best 
option to preserve the licensee's independence from commercial 
interests.'' \697\
---------------------------------------------------------------------------

    \695\ See Public Safety Broadband Authorization Act of 2008, 
H.R. 6055, 110th Cong. (2008).
    \696\ See AT&T Comments at 21; Philadelphia Comments at 5; NRPC 
Comments at 5; TeleCommUnity Comments at 12; RPC 33 Comments at 5; 
RPC 20 Reply Comments at 18.
    \697\ NATOA et al. Comments at 15.
---------------------------------------------------------------------------

    364. Spectrum Acquisitions proposed a revised band plan leading to 
increased D Block spectrum which, when auctioned, could ``provide 
additional funds to be transferred to the PSST.'' \698\ Hanna suggested 
using ``revenues generated from pending auctions, to provide a funding 
stream to all the PSST/PSBL to operate in an independent and 
transparent manner.'' \699\ The IAFF suggested establishment of ``a 
grant program to fund the administrative and operational costs of the 
public safety licensee, thus eliminating the need for the public safety 
licensee to procure such funding from for-profit entities.'' \700\
---------------------------------------------------------------------------

    \698\ SAI Comments at 13.
    \699\ Hanna Reply Comments at 2-3.
    \700\ IAFF Comments at 3.
---------------------------------------------------------------------------

    365. Discussion. As an initial matter, the Commission does not 
believe that the USF or TDF funding programs are appropriate for 
funding the Public Safety Broadband Licensee's operations. In the case 
of USF, the Commission observes that the USF program ultimately is 
intended to fund actual services, whereas the context for exploring USF 
funding in this proceeding is to fund the day-to-day administrative 
operations of the Public Safety Broadband Licensee.\701\ Moreover, USF 
funding is limited to ``eligible telecommunications carriers'' 
(ETC),\702\ and as the PSST observes, to be designated as an ETC, the 
Public Safety Broadband Licensee ``would need to be a common carrier, 
which it is not and cannot become.'' \703\
---------------------------------------------------------------------------

    \701\ See, e.g., 47 U.S.C. 254(c)(1) (``In general.--Universal 
service is an evolving level of telecommunications services * * *'') 
(emphasis added); 47 U.S.C. 254(e) (``A carrier that receives [USF] 
support shall use that support only for the provision, maintenance, 
and upgrading of facilities and services for which the support is 
intended.'').
    \702\ See 47 U.S.C. 254(e).
    \703\ PSST Comments at 25 (citing 47 U.S.C. 214(e)).
---------------------------------------------------------------------------

    366. With respect to the TDF, as currently constituted, this 
program appears inappropriate for funding the Public Safety Broadband 
Licensee's operations. Congress established the TDF in Section 707 of 
the Telecommunications Act of 1996 \704\ as a mechanism to promote 
access to capital for small businesses in the telecommunications 
industry, stimulate the development of new technology, and support 
delivery of universal service.\705\ The TDF, a non-profit corporation, 
essentially functions as a venture capital fund, making loans to 
``eligible small business[es]'' based upon business plans and related 
considerations.\706\ As such, the TDF takes equity positions in the 
companies that seek its assistance, and makes funding decisions largely 
based upon the business case of the potential borrower, both of which 
are inapposite to the non-profit status of the Public Safety Broadband 
Licensee and its operations. Moreover, since the TDF program is a 
statutory entity with no implementing FCC regulations, accommodating 
the funding of the Public Safety Broadband Licensee by the TDF would 
require legislation.
---------------------------------------------------------------------------

    \704\ Public Law No. 104-104, Sec.  707, 110 Stat. 56, 47 U.S.C. 
614.
    \705\ See 47 U.S.C. 614(a).
    \706\ See 47 U.S.C. 614(f). TDF funds may only be used for: 
``The making of loans, investments, or other extensions of credits 
to eligible small businesses''; provision of financial advice to 
``eligible small businesses''; conducting research; paying the TDF's 
operating expenses; and ``other services'' consistent with the TDF's 
purposes. See 47 U.S.C. 614(e).
---------------------------------------------------------------------------

    367. Regarding commenters' other suggested sources for Federal 
funding of the PSBL, while the Commission agrees that government 
funding of the PSBL may well be the best option to preserve the 
licensee's independence from commercial interests, the Commission notes 
that it has no control over Congressional disbursement of funds. 
Moreover, the use of auction revenues or Federal grants for the purpose 
of funding the PSBL would also require Congressional legislation.
(v) Restrictions on Financing
    368. With regard to the issue of implementing restrictions on 
financing that would facilitate necessary funding while still ensuring 
the independence of the Public Safety Broadband Licensee, the comments 
again reflected mixed views.
    369. The PSST stated that in its early years of operation it 
``likely will need to

[[Page 57814]]

borrow money'' and the Commission ``should continue to allow the PSBL 
to secure ordinary commercial loans at reasonable rates.'' \707\ The 
Virginia Fire Chiefs stated that if ``neither Congress nor FCC can 
provide * * * funding, it should not deny the PSST the ability to fund 
itself using methods commonly in use by other non-profit entities.'' 
\708\ AASHTO supported the ``Commission's concern [that] the holder of 
the PSBL is representative of all public safety groups,'' but urged the 
Commission to ``strongly consider if the imposition of any additional 
conditions, mandates, or restrictions placed on one not-for-profit 
licensee would apply equally to all other not-for-profit licensees.'' 
\709\ AASHTO further argued that ``[i]mposition of FCC regulations 
above those requirements of the [IRS] only obfuscate the issue and do 
not add clarity or transparency.'' \710\
---------------------------------------------------------------------------

    \707\ PSST Comments at 23 n. 48.
    \708\ Virginia Fire Chiefs Comments at 2. See also RPC 33 
Comments at 7; NPSTC Comments at 21; Northrop Grumman Comments at 
12; NAEMT Comments at 3-4; AASHTO Comments at 14.
    \709\ AASHTO Comments at 7.
    \710\ AASHTO Comments at 8.
---------------------------------------------------------------------------

    370. APCO argued that ``[e]quity funding from any sources should be 
prohibited, as that would undermine the independence and non-profit 
status of the PSBL.'' \711\ APCO further asserted that ``the PSBL must 
have the ability to seek debt financing (i.e., loans) to fund its 
operations, and those loans would almost certainly need to be from 
banks or other ``for profit'' institutions.'' \712\ NATOA argued that 
the PSBL should not be allowed to ``obtain debt or equity financing 
from any source * * * unless such source is also a non-profit entity.'' 
\713\ Peha asserted that prohibiting the PSBL from accepting funds from 
for-profit entities ``is a useful restriction, but not a sufficient 
restriction,'' because some entities might qualify as non-profit yet 
have missions that would make it ``problematic if they funded the 
PSBL.'' \714\ Accordingly, Peha argued that the funding ``should come 
from a source whose unambiguous objective is either to serve the public 
interest, or to serve public safety.'' \715\
---------------------------------------------------------------------------

    \711\ APCO Comments at 17.
    \712\ APCO Comments at 17.
    \713\ NATOA et al. Comments at 15. See also Philadelphia 
Comments at 5.
    \714\ Peha Comments at 10.
    \715\ Peha Comments at 10.
---------------------------------------------------------------------------

    371. As indicated above, commenters also opposed allowing the PSBL 
to obtain funding from any of its agent/advisors. APCO, for example, 
contended that the ``agent/advisor's funding of the PSST and the 
resulting debt creates at least a perception that the agent/advisor 
could exert undue influence over the PSST.'' \716\ APCO further 
contended that such funding scenario ``imposes a financial burden that 
could interfere with the PSST's mission.'' \717\ Accordingly, APCO 
asserted that ``the Commission's rules should prohibit the PSBL from 
borrowing funds from entities that provide substantial services to the 
PSBL.'' \718\
---------------------------------------------------------------------------

    \716\ APCO Comments at 17.
    \717\ APCO Comments at 17.
    \718\ APCO Comments at 17. See also APCO Comments at 17-18 
(``[An] appropriate provision would be to prohibit debt financing 
from any entity that provides services to or otherwise has business 
relationships with the PSBL.'').
---------------------------------------------------------------------------

    372. Peha espoused a similar view, noting that by obtaining funding 
from its advisor, ``the PSST has probably lost the option of choosing a 
new advisor if it is ever unhappy with the current one * * *'' \719\ 
Peha observed that where the PSBL's advisor also loans money to the 
PSBL, the advisor then ``has a great deal to lose if the PSBL is unable 
to reach agreement with a commercial provider, as the loan will never 
be repaid,'' but ``has nothing to lose if the PSBL reaches an agreement 
that fails to meet the needs of a single public safety organization.'' 
\720\ Verizon Wireless argued that a single entity that both loans 
money and serves as an advisor to the PSBL ``raises issues concerning 
potential conflicts,'' and that, in such instances, the Commission 
``should take steps to ensure that the no-commercial-profit principal 
is not violated.'' \721\
---------------------------------------------------------------------------

    \719\ Peha Comments at 9-10.
    \720\ Peha Comments at 10.
    \721\ Verizon Wireless Comments at 34. See also AT&T Comments at 
19, 21; IAFF Comments at 3; RPC 20 Reply Comments at 17; Verizon 
Wireless Reply Comments at 23-26.
---------------------------------------------------------------------------

    373. Discussion. As indicated above, the Commission is proposing 
that funding for the Public Safety Broadband Licensee's operational and 
administrative costs would come through the annual payment to the 
Public Safety Broadband Licensee of one percent of the amount of the D 
Block licensee's gross winning bid, but not to exceed the sum of $5 
million per year. The Commission believes this funding mechanism will 
make it unnecessary for the Public Safety Broadband Licensee to seek 
third party loans to fund start-up and ongoing operations. Thus, the 
Commission proposes to clarify that the Public Safety Broadband 
Licensee may not obtain debt or equity financing from any source. As 
commenters point out, the independence of the Public Safety Broadband 
Licensee may be unduly influenced by for-profit motives or outside 
commercial influences in carrying out its official functions were it 
allowed to enter into financing agreements with third party, for profit 
entities. For similar reasons, the Commission proposes to prohibit the 
acquisition of any financing, whether debt or equity, from Public 
Safety Broadband Licensee agents, advisors or any entity that provides 
services to the Public Safety Broadband Licensee.\722\ Further, the 
Commission remains concerned that any financial arrangement beyond 
those described below with respect to funding from the D Block 
licensee(s) would impose a financial burden that could compromise the 
functioning and mission of the Public Safety Broadband Licensee. Thus, 
the Commission proposes to prohibit the Public Safety Broadband 
Licensee from entering into any financial arrangements with third 
party, non-profit entities for the purpose of securing funding.
---------------------------------------------------------------------------

    \722\ The Commission includes any equipment manufacturer 
financing to support the acquisition of equipment for public safety 
users.
---------------------------------------------------------------------------

b. Fees for Services Provided to Public Safety Entities
    374. Background. In the Second Report and Order, the Commission 
provided guidance concerning the service fees that the D Block licensee 
could charge public safety users for their access to and use of the 
public safety broadband network and, in times of emergency, to the D 
Block spectrum.\723\ The Commission also discussed the importance of 
the D Block licensee's ability to offer commercial services using the 
public safety broadband spectrum leased from the Public Safety 
Broadband Licensee.\724\
---------------------------------------------------------------------------

    \723\ Second Report and Order, 22 FCC Rcd at 15448-49 paras. 
450-52.
    \724\ Second Report and Order, 22 FCC Rcd at 15437-39 paras. 
414-19, 15441 para. 425.
---------------------------------------------------------------------------

    375. The Commission required that all service fees--including 
service fees that the D Block licensee would charge public safety users 
for normal network service using the public safety broadband spectrum 
and for their priority access to the D Block spectrum--be specified in 
the Network Sharing Agreement.\725\ The Commission encouraged the 
parties to negotiate a fee agreement that incorporates financial 
incentives for the D Block licensee based on the number of public 
safety entities and localities that subscribe to the service.\726\ The 
Commission also observed that, for the negotiation of reasonable rates, 
typical commercial

[[Page 57815]]

rates for analogous services might be useful as a guide, but that the 
negotiated rates may in fact be lower than typical commercial rates for 
analogous services.\727\ The Commission added that the Commission 
expectation was that the winning bidder of the D Block license and the 
Public Safety Broadband Licensee would negotiate a fee structure for 
priority access to the D Block in an emergency that will protect public 
safety users from incurring unforeseen (and unbudgeted) payment 
obligations in the event that a serious emergency necessitates 
preemption for a sustained period.\728\
---------------------------------------------------------------------------

    \725\ Second Report and Order, 22 FCC Rcd at 15448 para. 45.
    \726\ Second Report and Order, 22 FCC Rcd at 15448 para. 450.
    \727\ Second Report and Order, 22 FCC Rcd at 15449 para. 451.
    \728\ Second Report and Order, 22 FCC Rcd at 15449 para. 451. 
Elsewhere, the Commission stated that this ``[p]riority service, 
although provided to public safety, will still be commercial, and 
will not appreciably impair the D Block licensee's ability to 
provide commercial services to other parties.'' Id. at 15437 para. 
413.
---------------------------------------------------------------------------

    376. In the Second FNPRM, the Commission invited comment on whether 
the Commission should reconsider any aspect of the rules regarding 
service fees to be paid by public safety users, including any 
applicable fees for normal network service and fees for priority access 
to the D Block in an emergency.\729\ The Commission specifically sought 
comment on whether the Commission should clarify any aspect of these 
service fees that was left to negotiations.\730\ The Commission also 
asked whether the Commission provided adequate guidance in the Second 
Report and Order to enable the parties to negotiate reasonable rates 
for all fees, or whether the Commission should adopt a more detailed 
fee structure or formula to facilitate negotiations on this issue.\731\ 
The Commission asked, for example, whether the Commission should 
specify that the D Block licensee is entitled to charge rate-of-return 
or cost-plus rates, taking the incremental costs of public safety 
network specifications and other costs attributable uniquely to public 
safety users into account.\732\ Alternatively, the Commission asked 
whether requiring public safety users to pay the same rates as 
commercial users would be sufficient.\733\ The Commission further asked 
whether the Commission should mandate that public safety users be 
entitled to receive the lowest rate that the D Block licensee offers to 
its commercial users for analogous service.\734\
---------------------------------------------------------------------------

    \729\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
    \730\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
    \731\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
    \732\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
    \733\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
    \734\ Second FNPRM, 23 FCC Rcd at 8094 para. 132.
---------------------------------------------------------------------------

    377. The Commission also sought comment on whether particular uses 
of the public safety broadband network by public safety users should be 
free and others fee-based, and upon what bases such distinction should 
be made.\735\ In this regard, the Commission asked whether it is 
practical to use service- and context-based distinctions, such as 
between voice and advanced data services, mission-critical and non-
mission-critical communications, emergency and non-emergency events, 
priority and non-priority access, or similar metrics.\736\ 
Alternatively, the Commission asked whether it would be preferable to 
rely on technical distinctions, such as a specified number of minutes 
or bits, a percentage of network capacity, or similar metrics.\737\ 
Finally, the Commission asked whether either approach would provide 
sufficient certainty to public safety users and/or the commercial D 
Block licensee.\738\
---------------------------------------------------------------------------

    \735\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
    \736\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
    \737\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
    \738\ Second FNPRM, 23 FCC Rcd at 8094-95 para. 133.
---------------------------------------------------------------------------

    378. Comments. A number of commenters addressed whether the 
Commission should more clearly define the fees to be charged to public 
safety users. AT&T, for example, asserted that ``it is critically 
important that the Commission provide additional guidance in this area 
* * * to enable potential commercial participants to evaluate the 
financial prospects of this venture.'' \739\ Peha argued that the fees 
should be set in advance of the auction because ``no public safety 
agency will purchase equipment to use a system unless it can be certain 
that the monthly fees will be reasonable for the life of that 
equipment, if not indefinitely.'' \740\ Similarly, Mercatus urged the 
Commission to provide ``more specificity on what the D Block licensee 
may charge public safety users.'' \741\
---------------------------------------------------------------------------

    \739\ AT&T Comments at 20.
    \740\ Peha Comments at 13.
    \741\ Mercatus Comments at 2.
---------------------------------------------------------------------------

    379. The PSST indicated that it ``understands the desire by some 
parties that service fees be set prior to the auction, [but] sees no 
reasonable way of doing so.'' \742\ Specifically, the PSST argued that 
``[n]etwork service fees will and should have some correlation to 
network costs. But those costs will vary considerably depending on the 
D Block winner.'' \743\ In this regard, the PSST observed that ``[a]n 
incumbent with built-out infrastructure and an in-place retail service 
business will have different requirements than a new entrant that would 
need to build a network from scratch or from a winner that elects to 
operate on a wholesale-only basis.'' \744\ Accordingly, the PSST argued 
that ``it is not possible to determine service fees prior to knowing 
the identity and business plans of the D Block winner.'' \745\
---------------------------------------------------------------------------

    \742\ PSST Comments at 37.
    \743\ PSST Comments at 37.
    \744\ PSST Comments at 37.
    \745\ PSST Comments at 37.
---------------------------------------------------------------------------

    380. The PSST added that it is ``opposed to allowing the D Block 
licensee to recoup the incremental cost of a public safety-quality 
build from public safety users,'' which arrangement the PSST argued 
would ``not be materially different than if the PSST were to pay an 
incumbent wireless carrier to augment its existing facilities to 
support a public safety-grade 700 MHz system, particularly if the 
carrier was deploying its own 700 MHz network.'' \746\ According to the 
PSST, the ``better approach is to encourage the parties to negotiate a 
mutually acceptable rate(s) for public safety entities, one that will 
encourage widespread public safety adoption and that also provides the 
D Block operator with reasonable compensation consistent with the 
benefits it is receiving from the partnership arrangement,'' but in all 
cases, ``the FCC should continue to specify a requirement (or at least 
an expectation) that the fees paid by public safety users should be 
substantially lower than the fees paid by the D Block licensee's 
commercial customers.'' \747\
---------------------------------------------------------------------------

    \746\ PSST Comments at 36.
    \747\ PSST Comments at 36-37.
---------------------------------------------------------------------------

    381. Northrop Grumman urged the Commission ``to adopt an objective 
method for the determination of fees, including a mechanism to 
segregate and define the charges to public safety users, with cost 
recovery using a ``no profit, no loss'' or similar framework.'' \748\ 
According to Northrop Grumman, such an approach would ``align the 
incentives of the D Block licensee and the PSBL toward serving public 
safety's needs, and ensure that the costs of public safety's needs are 
met without conflicting with overall viability of the shared network.'' 
\749\
---------------------------------------------------------------------------

    \748\ Northrop Grumman Comments at 8.
    \749\ Northrop Grumman Comments at 8.
---------------------------------------------------------------------------

    382. Televate contended that the ``maximum service price for 
priority public safety services must be

[[Page 57816]]

discounted from list rates by at least 20 percent.'' \750\ Televate 
also suggested that bidders should somehow be credited for offering 
``higher levels of discounts off commercial list prices'' and 
``innovative methods to bring the maximum number of public safety 
personnel on to the network.'' \751\ Gerard Eads, a ``communications 
administrator,'' urged the Commission to require ``that public safety 
agencies access the system at no recurring charge'' and subsidize their 
fees using revenue from the auction.\752\
---------------------------------------------------------------------------

    \750\ Televate Comments at 10.
    \751\ Televate Comments at 10.
    \752\ Eads Comments at 3.
---------------------------------------------------------------------------

    383. NTCH proposed the imposition of ``a relatively modest usage 
fee,'' the proceeds from which could ``pay the ongoing costs of the 
public safety licensee as well as system maintenance.'' \753\ According 
to NTCH, the service could still be provided at a discount to costs 
currently incurred by public safety entities and ``the charge to public 
safety users for unlimited calling would be equivalent to similar 
charges to a private sector user for unlimited calling plans and data 
transfers over the network.'' \754\ U.S. Cellular asserted that to 
``increase the attractiveness'' of less populated geographic areas in 
the D Block, the Commission could make ``the service fees more 
commercially attractive (in areas with low volumes of public safety 
usage, lower charges for the D Block licensee's use of the public 
safety spectrum, and higher charges for public safety agencies' use of 
the D Block spectrum).'' \755\ California argued in favor of 
implementing ``a small incremental cost increase in a `heavy use' area 
as a means of offsetting the cost for providing service to a `low use' 
area.'' \756\
---------------------------------------------------------------------------

    \753\ NTCH Comments at 6.
    \754\ NTCH Comments at 6.
    \755\ U.S. Cellular Comments at 14, 22.
    \756\ California Comments at 5.
---------------------------------------------------------------------------

    384. Some commenters argued that the Federal government should 
subsidize the public safety network. RPC 33 argues that the user fees 
should be ``fair and equitable to all concerned'' and that funding for 
the network should come from the Federal government until the D Block 
spectrum becomes profitable.\757\ Wireless RERC supported capping fees 
that could be charged to public safety entities and contends the 
network costs could be subsidized using ``funds appropriated by 
Congress, federal grants, or a cost-recovery fund.'' \758\
---------------------------------------------------------------------------

    \757\ RPC 33 Comments at 5.
    \758\ Wireless RERC Comments at 12-13.
---------------------------------------------------------------------------

    385. APCO indicated that ``per unit and aggregate service pricing 
has been a major concern for APCO since the inception of this 
process.'' \759\ Specifically, APCO argued that ``it will almost always 
cost more to provide an equal level of service to the smaller agency 
that works in remote areas and have wide jurisdictional areas than it 
will to cover a dense urban area.'' \760\ APCO suggested that the 
imbalance in equalizing rates between populated versus less populated 
areas could be addressed through such measures as ``blanket Federal 
subsidies,'' ``a rate structure that is subsidized by the other 
users,'' or for the Commission ``to collect a user fee on all users, 
similar to a 911 service fund or fee.'' \761\ In all cases, however, 
APCO recommended that the Commission ``take full advantage of an 
advisory rate board, commission or advisory group to assist in 
establishing the rates and future adjustments to them.'' \762\ APCO 
also suggested that the Commission allow the ``PSBL and the D Block 
licensee to negotiate with qualified public safety agencies to accept 
capital investments or the use of publicly funded capital investment in 
exchange for reduced rates.'' \763\
---------------------------------------------------------------------------

    \759\ APCO Comments at 14.
    \760\ APCO Comments at 14.
    \761\ APCO Comments at 15.
    \762\ APCO Comments at 15.
    \763\ APCO Comments at 16.
---------------------------------------------------------------------------

    386. AT&T argued that the Commission ``must promulgate guidelines 
that address the service fees commercial partners may charge local 
public safety users * * * .'' \764\ AT&T further argued that 
``[p]otential commercial partners require such clarification in order 
to evaluate the financial prospects of this venture'' and that, 
therefore, if ``the Commission intends to restrict the type or amount 
of service fees a commercial partner may charge a local public safety 
user, the Commission must clearly explain this restriction prior to an 
RFP process or a reauction.'' \765\
---------------------------------------------------------------------------

    \764\ AT&T Reply Comments at 20; see also Northrop Grumman 
Comments at 7-8; Peha Comments at 13; Wireless RERC Comments at 12-
13.
    \765\ AT&T Reply Comments at 20. AT&T also recommended 
guidelines addressing spectrum usage fees, and asserted that, if 
``the Commission permits the PSBL to charge access fees, the 
Commission should ensure that such payments be negotiated * * * 
using commercial practices for cost recovery for the PSBL.'' Id.
---------------------------------------------------------------------------

    387. Discussion. Resolving the matter of service fees for public 
safety use of the broadband network requires us to carefully balance 
the interests of potential D Block bidders and public safety users of 
the network.\766\ It is also important to provide both sets of 
stakeholders with a fee structure that is reasonably stable and 
predictable, notwithstanding the difficulty of determining such fees 
given the limited information before us.\767\ The Commission agrees 
with commenters that potential commercial participants need sufficient 
pre-auction information regarding fees to help them evaluate the 
financial prospects of providing both a commercial- and public safety-
oriented service.\768\ Similarly, the Commission believes that public 
safety agencies need specificity regarding prospective fees in order to 
ensure their timely commitment to use the public safety spectrum and to 
enable them to plan and budget for the use of the new network.
---------------------------------------------------------------------------

    \766\ See AT&T Comments at 20. The Commission also recognizes 
Peha's argument that a failure to determine rates ex ante could 
adversely affect public safety purchase of 700 MHz equipment. See 
Peha Comments at 13.
    \767\ See Peha Comments at 13.
    \768\ See, e.g., AT&T Comments at 20.
---------------------------------------------------------------------------

    388. As an initial matter, with regard to those commenters who 
argue that the fees charged to public safety users of the shared 
network should be subsidized by the Federal government, whether on an 
ongoing basis or through the use of auction proceeds,\769\ the 
Commission notes that the Commission's lack the authority to obligate 
Federal funds in such fashions. In addition, while the Commission finds 
Northrop Grumman's concept of a ``no profit, no loss'' or similar 
framework appealing,\770\ the Commission does not believe that the 
Commission should prohibit the D Block licensee from deriving income 
from public safety users of the public safety spectrum. The Commission 
agrees with the general consensus of most commenters, however, that any 
fees charged to public safety users should be discounted as compared to 
the fees charged to commercial users.
---------------------------------------------------------------------------

    \769\ See Eads Comments at 3.
    \770\ See Northrop Grumman Comments at 8.
---------------------------------------------------------------------------

    389. The Commission tentatively concludes, therefore, that the 
Commission should establish fixed nationwide service fees that the D 
Block licensee may charge to public safety users based upon a 
discounted rate schedule. The Commission believes that adopting a fee 
schedule nationwide will ensure uniform standards and practices in the 
700 MHz band, rapid adoption and deployment by public safety users, and 
provide an efficient cost structure for the D Block licensee(s) as it 
builds out a network capable of supporting commercial and public safety 
users.
    390. As the Commission considers the specific fees to be mandated, 
the Commission tentatively concludes that the rates being offered today 
for

[[Page 57817]]

broadband wireless data service provide a sufficient, forward-looking 
benchmark upon which to establish a nationwide fee schedule. The 
Commission tentatively concludes that the characteristics of services, 
such as those offered by Verizon Wireless, AT&T Mobility, Sprint 
Nextel, and T-Mobile, are consistent with those that will be associated 
with the public safety broadband network. The Commission also finds 
that offering such discounted fixed rates is a standard practice of 
nationwide and regional wireless carriers that have established voice 
and data service prices for public safety and government users. The 
Commission bases its conclusion on a survey of contracts, as presented 
in Table 2, that are presently offered to governments and public safety 
authorities for wireless voice and data services.\771\
---------------------------------------------------------------------------

    \771\ See, e.g., General Services Administration, Federal Supply 
Service, Cellular/PCS Services, Contract <greek-i> GS-35F-0119P, 
available at https://www.gsaadvantage.gov/ref_text/GS35F0119P/0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD12GS35F0119P040408.PDF 
(last viewed on August 27, 2008); Western State Contracting 
Alliance, at http://www.aboutwsca.org/welcome.cfm (last viewed on 
August 27, 2008); State of New York, Office of General Services, 
Procurement Services Group, Contract Number PS61217, Group Number 
77008 (effective August 15, 2007), available at http://www.ogs.state.ny.us/ purchase/prices/7700802459prices1207.pdf (last 
viewed on August 27, 2008).

                                 Table 2--Survey: Discounted Wireless Data Plans
----------------------------------------------------------------------------------------------------------------
                                                                                             Monthly  service
         Contracting entity             Wireless operator         Service plan \772\              charge
----------------------------------------------------------------------------------------------------------------
General Services Administration      Verizon Wireless......  VZAccess (NationalAccess/..  $48.59
 \773\.                                                      BroadbandAccess)...........
----------------------------------------------------------------------------------------------------------------
Western States Contracting Alliance  Verizon Wireless......  BroadbandAccess for           49.19 \775\
 \774\.                                                       Internet and E-mail.
                                     Sprint PCS............  Sprint PCS Connection Card    49.99
                                                              Unlimited Usage (applies
                                                              to usage on both 1xRTT and
                                                              EVDO networks).
                                     T-Mobile \776\........  T-Mobile Total Internet,      33.99 \777\
                                                              Unlimited Usage.
                                                             T-Mobile Total Internet for   42.49 \778\
                                                              Data Cards, Unlimited
                                                              Usage.
                                     AT&T Mobility \779\...  Public Safety Unlimited       49.99
                                                              Data.
State of New York \780\............  Verizon Wireless......  VZAccess (NationalAccess/     48.59
                                                              BroadbandAccess).
                                     Sprint Nextel.........  Unlimited Connection Plan     59.99
                                                              EVDO DataLink.
                                                             Unlimited Connection Plan     59.99
                                                              1xRTT DataLink.
State of Florida \781\.............  AT&T Mobility.........  Wireless Data Usage Plan,     43.99
                                                              Unlimited Usage.
                                     Sprint................  Wireless Data Usage Plan,     44.99
                                                              Unlimited Usage.
                                     Verizon Wireless......  Wireless Data Usage Plan,     52.59
                                                              Unlimited Usage.
----------------------------------------------------------------------------------------------------------------

    391. Generally, the service rates charged by these carriers apply 
nationwide, thus providing a useful model for establishing a 
nationwide, fixed rate schedule for public safety users of the shared 
wireless broadband network. Based on the Commission survey, the average 
discounted service charge is approximately $48.50 per month, which thus 
may serve as an appropriate amount. In sum, the Commission seeks 
comment on its tentative conclusions that it should set a specific 
service fee for public safety users and that such fee be based on rates 
charged to government users of existing wireless, voice, and data 
services. The Commission also seeks comment on whether a rate of $48.50 
per user per month as the base rate that will be charged to all public 
safety users is reasonable.
---------------------------------------------------------------------------

    \772\ The Commission notes that some of these plans contain 
restrictions on the use of the wireless data network. For example, 
Verizon Wireless' contracts discussed herein stipulate its wireless 
data services may only be used for ``(i) Internet browsing, (ii) e-
mail, and (iii) intranet access (including access to corporate 
Intranets, e-mail and individual productivity applications like 
customer relationship management, sales force and field 
automation.'' Verizon Wireless specifically prohibits uses including 
the `` (i) continuous uploading, downloading or streaming of audio 
or video programming or games, (ii) server devices or with host 
computer applications, other than applications required for enhanced 
phone applications, including but not limited to web camera posts or 
broadcasts, automatic data feeds, automated machine-to-machine 
connections, or peer-to-peer file sharing, or (iii) as a substitute 
or backup for private lines or dedicated data connections.'' 
Similarly, Sprint Nextel's contract stipulates that ``[s]ervices are 
not available for use in connection with server devices or host 
computer applications, other systems that drive continuous heavy 
traffic or data sessions.'' See State of New York, Office of General 
Services, Verizon Wireless Contract Number PS61217 (effective August 
15, 2007), available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last viewed on August 27, 2008) (New York 
State Verizon Wireless Contract); Sprint Nextel Contract Number 
PS60701 (effective July 15, 2007), available at http://www.ogs.state.ny.us/purchase/prices/7700802459prices1207.pdf (last 
viewed on August 27, 2008) (New York State Sprint Nextel Contract). 
See also General Services Administration, Federal Supply Service, 
Cellular/PCS Services, Contract <greek-i> GS-35F-0119P, available at 
https://www.gsaadvantage.gov/ref_text/GS35F0119P/0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD12GS35F0119P040408.PDF (last viewed on 
August 27, 2008) (GSA Verizon Wireless Contract).
    \773\ GSA Verizon Wireless Contract.
    \774\ The WSCA is comprised of state purchasing directors that 
negotiate purchasing contracts for goods and services. WSCA 
membership consists of the principal procurement official that heads 
the state central procurement organization, or designee for that 
state, from the states of Alaska, Arizona, California, Colorado, 
Hawaii, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South 
Dakota, Utah, Washington and Wyoming. In addition, the following 
states use WSCA contracts: Alabama, Arkansas, Florida, Georgia, 
Iowa, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Maryland, 
Maine, Michigan, Missouri, Mississippi, North Carolina, Nebraska, 
New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, 
Tennessee, Texas, Wisconsin, and the District of Columbia.
    \775\ This amount reflects an 18% discount that Verizon Wireless 
extends to signatories of the WSCA contract. According to Verizon 
Wireless, the standard rate is $59.99. See Verizon Wireless, at 
https://b2b.verizonwireless.com/b2b/commerce/shop/viewPlanDetail.go?planId=48372 (last viewed on August 27, 2008).
    \776\ Under its contract with the WSCA, T-Mobile extends a 15% 
discount on recurring monthly charges. See WSCA, Contract for 
Services of Independent Contractor, T-Mobile USA, available at 
http://purchasing.state.nv.us/Wireless/T-Mobile_Contract.pdf (last 
viewed on August 27, 2008).
    \777\ This amount reflects a 15% discount off the $39.99 retail 
rate.
    \778\ This amount reflects a 15% discount off the $49.99 retail 
rate.
    \779\ See WSCA, Contract for Services of Independent Contractor, 
AT&T Mobility, available at http://purchasing.state.nv.us/Wireless/Cingular_BB.pdf (last viewed on August 27, 2008).
    \780\ New York State Verizon Wireless Contract; New York State 
Sprint Nextel Contract.
    \781\ State of Florida, Department of Management Services, 
MyFloridaSUNCOM Services, at http://dms.myflorida.com/cits/portfolio_of_services/suncom/wireless_services/wireless_data_services_aircard (last viewed August 27, 2008).
---------------------------------------------------------------------------

    392. In developing a proposed base rate, the Commission seeks to 
achieve the best approximation of what a competitive, yet discounted 
rate should be for these services. The Commission

[[Page 57818]]

seeks to ensure an initial stable service arrangement between the D 
Block licensee(s) and the public safety user community by establishing 
an initial flat rate for service based on appropriate considerations of 
commercial viability and the generally limited financial means of the 
public safety community. The Commission believes this is an important 
consideration towards ensuring widespread adoption of advanced 
interoperable services by the public safety community. The Commission 
recognizes, however, that the factors that determine service rates are 
not static, and that over time marketplace forces will need to be taken 
into account in the adjustment of public safety service rates. Thus, 
the Commission tentatively concludes that the Commission will allow the 
fixed rates the Commission ultimately adopts to sunset coterminous with 
the expiration of the fourth year buildout requirement, at which point 
the Commission expects the D Block licensee(s) will be providing 
service to a significant portion of the nation's public safety 
community. In the fifth year of operation, the Commission expects that 
the commercial market for D Block spectrum and services will have 
sufficiently developed so that the General Services Administration 
likely will have developed a fee schedule for government users of the 
commercial spectrum. At that time, the Commission proposes to use that 
schedule as the basis for adjusting public safety fees for use of the 
network. The Commission seeks comment on this proposal.
c. Other Essential Components
    393. Background. In the Second Report and Order, the Commission 
established certain minimum criteria that the Public Safety Broadband 
Licensee must meet in order to ensure that it ``focuses exclusively on 
the needs of public safety entities that stand to benefit from the 
interoperable broadband network.'' \782\ In particular, the Commission 
established certain criteria for the Public Safety Broadband Licensee 
eligibility, including a requirement that the Public Safety Broadband 
Licensee must be broadly representative of the public safety 
community.\783\ The Commission also required that the Public Safety 
Broadband Licensee be governed by a voting board consisting of eleven 
members, one each from the nine organizations representative of public 
safety, and two at-large members selected by the Public Safety and 
Homeland Security Bureau and the Wireless Telecommunications Bureau, 
jointly on delegated authority.\784\ On reconsideration, the Commission 
revised and expanded the voting board, and increased the at-large 
membership to four.\785\
---------------------------------------------------------------------------

    \782\ Second Report and Order, 22 FCC Rcd at 15421-22 para. 373.
    \783\ Second Report and Order, 22 FCC Rcd at 15421-25 paras. 
373-375.
    \784\ The nine organizations included: the Association of Public 
Safety Communications Officials (APCO); the National Emergency 
Number Association (NENA); the International Association of Chiefs 
of Police (IACP); the International Association of Fire Chiefs 
(IAFC); the National Sheriffs' Association (NSA); the International 
City/County Management Association (ICMA); the National Governor's 
Association (NGA); the National Public Safety Telecommunications 
Council (NPSTC); and the National Association of State Emergency 
Medical Services Officials (NASEMSO). Second Report and Order, 22 
FCC Rcd at 15422-23 para. 374.
    \785\ On reconsideration, the Commission removed NPSTC and 
included the Forestry Conservation Communications Association 
(FCCA), the American Association of State Highway and Transportation 
Officials (AASHTO), and the International Municipal Signal 
Association (IMSA), and added two additional at-large positions. 
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT 
Docket No. 96-86, Order on Reconsideration, 22 FCC Rcd 19935 (2007) 
(Order on Reconsideration). The Chiefs of the Public Safety and 
Homeland Security Bureau and Wireless Telecommunications Bureau 
jointly appointed to the voting board the American Hospital 
Association (AHA), the National Fraternal Order of Police (NFOP), 
the National Association of State 9-1-1 Administrators (NASNA), and 
the National Emergency Management Association (NEMA). See ``Public 
Safety and Homeland Security Bureau and Wireless Telecommunications 
Bureau Announce the Four At-Large Members of the Public Safety 
Broadband Licensee's Board of Directors,'' Public Notice, 22 FCC Rcd 
19475 (PSHSB 2007).
---------------------------------------------------------------------------

    394. The Commission also required that certain procedural 
safeguards be incorporated into the articles of incorporation and 
bylaws of the Public Safety Broadband Licensee.\786\ For example, the 
Commission specified that the term of the Public Safety Broadband 
Licensee officers would be two years, and that election would be by a 
two-thirds majority vote.\787\ A two-thirds majority was also required 
for certain other Public Safety Broadband Licensee decisions, including 
amending the articles of incorporation or bylaws.\788\ The Commission 
also recognized the importance of Commission oversight in the affairs 
of the Public Safety Broadband Licensee, which the Commission enabled 
by requiring the Public Safety Broadband Licensee to submit certain 
reports to the Commission, including quarterly financial 
disclosures.\789\
---------------------------------------------------------------------------

    \786\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
    \787\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
    \788\ Second Report and Order, 22 FCC Rcd at 15423-26 para. 375.
    \789\ Second Report and Order, 22 FCC Rcd at 15426 paras. 376-
77.
---------------------------------------------------------------------------

    395. In the Second FNPRM, the Commission sought to reexamine the 
structure of the Public Safety Broadband Licensee and the criteria 
adopted in the Second Report and Order to ensure they are optimal for 
establishing and sustaining a partnership with a commercial entity, and 
for efficiently and equitably conducting the business of the Public 
Safety Broadband Licensee. As developed more fully below, the 
Commission sought comment on whether the Commission should reevaluate 
any of these criteria, whether the Commission should clarify or 
increase the Commission's oversight of the Public Safety Broadband 
Licensee, and whether the Commission should make other changes to the 
license or license eligibility criteria.\790\ The Commission further 
sought comment on how the Commission can ensure an oversight role for 
Congress; whether State governments should assume responsibility for 
coordinating the participation of the public safety providers in their 
jurisdictions; and whether, in light of possible changes to the 
eligibility and other criteria that govern the Public Safety Broadband 
Licensee, the Commission should rescind the current 700 MHz Public 
Safety Broadband License and seek new applicants.\791\
---------------------------------------------------------------------------

    \790\ Second FNPRM, 23 FCC Rcd at 8067 para. 48.
    \791\ Second FNPRM, 23 FCC Rcd at 8067 para. 48.
---------------------------------------------------------------------------

(i) Articles of Incorporation and By-Laws
    396. Background. With respect to the articles of incorporation and 
bylaws that govern the Public Safety Broadband Licensee, the Commission 
sought comment on the adequacy of the current requirements.\792\ The 
Commission sought comment, for example, on whether the Commission 
should require a unanimous or super-majority vote in certain instances, 
whether the Commission should provide for Commission review of such 
decisions, and whether the Commission should make certain decisions for 
the Public Safety Broadband Licensee if unanimity or supermajority is 
not achieved.\793\ With respect to the voting board, the Commission 
sought comment on the composition, size and qualifications of the 
board.\794\ The Commission also sought comment on whether the 
Commission should eliminate altogether the requirement of inclusion of 
specific

[[Page 57819]]

voting board members, and if so, how the Commission could ensure broad 
representation of the public safety community.\795\ With respect to the 
leadership of the board, the Commission asked whether the Commission 
should revise the terms of the officers; whether the Commission should 
require a unanimous vote for appointment of officers; whether the 
Commission should require a rotating chairmanship among the voting 
board members; and whether the Commission should appoint a chairperson 
in the event that unanimous consent cannot be attained on appointing 
such person.\796\
---------------------------------------------------------------------------

    \792\ Second FNPRM, 23 FCC Rcd at 8067 para. 49.
    \793\ Second FNPRM, 23 FCC Rcd at 8067 para. 49.
    \794\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
    \795\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
    \796\ Second FNPRM, 23 FCC Rcd at 8067 para. 50.
---------------------------------------------------------------------------

    397. Comments. There were a number of comments addressing the 
composition of the PSBL board of directors and board transparency and 
voting matters.
    398. Board Composition. For its part, the PSST indicated that it 
``opposes any change in the composition of its Board, including the 
possibility of including representatives from a variety of non-public 
safety entities.'' \797\ In this regard, the PSST asserted that ``the 
PSST is structured in strict compliance with all applicable FCC 
requirements,'' \798\ and, as currently constituted, ``collectively 
represents virtually every type of public safety and governmental 
entity that is eligible to operate on the SWBN pursuant to the PSBL 
license and their interests have been well-represented in the Board's 
highly collaborative decision making processes.'' \799\ Rather than 
revise its organizational make-up, the PSST argued that the Commission 
should ``instead work with the organizations represented on the current 
PSST Board to address any major concerns about the organizational 
structure and governance of the organization.'' \800\ The PSST further 
indicated that the Commission should not prohibit the PSST Chairman of 
the Board of Directors from also serving as Chief Executive Officer in 
favor of creating a separate position of President/CEO to manage the 
PSST's business ``unless the Commission has some definite funding 
mechanism for the PSST/PSBL to pay for such a position.'' \801\
---------------------------------------------------------------------------

    \797\ PSST Reply Comments at 17. See also PSST Comments at 47.
    \798\ PSST Comments at 45.
    \799\ PSST Comments at 45-46.
    \800\ PSST Comments at 47.
    \801\ PSST Comments at 46.
---------------------------------------------------------------------------

    399. IACP argued that the present PSBL board ``represents not only 
the myriad of agencies, but those who finance, operate and manage 
public safety systems.'' \802\ IACP further asserted that reducing 
``the number of the Board'' would ``dilute'' the link between the Board 
and public safety.\803\ IACP also asserted that any expertise needed in 
telecommunications, finance and/or management can be obtained through 
the retention of experts.\804\ AASHTO asserted that adding any more 
PSBL board members ``could create a body so unwieldy it is unable to 
react to the ever changing needs of its users in a timely manner.'' 
\805\ Ericsson advises that changing the PSBL board composition ``at 
this time could impose additional delay * * * and create a new source 
of uncertainty.'' \806\ Other commenters similarly urged the Commission 
not to reassess the composition or size of the Public Safety Broadband 
Licensee's board.\807\
---------------------------------------------------------------------------

    \802\ IACP Reply Comments at 3.
    \803\ IACP Reply Comments at 3.
    \804\ IACP Reply Comments at 3.
    \805\ AASHTO Comments at 11. In this context, AASHTO advises 
against adding a Commission or Congressional representative to the 
Board. Id.
    \806\ Ericsson Comments at 8.
    \807\ See, e.g., IMSA Comments at 11; IMSA Reply Comments at 7-
8; ICMA Reply Comments at 2; NPSTC Reply Comments at 7.
---------------------------------------------------------------------------

    400. A number of commenters, however, proposed various changes to 
the Public Safety Broadband Licensee's governance structure. APCO, for 
example, suggested various modifications regarding membership in the 
Public Safety Broadband Licensee. First, APCO asked the Commission to 
``clarify that the organizations it names [to the board] must be the 
actual members of the PSBL board to the extent that this can be done 
without creating undue financial liability to the respective 
organizations.'' \808\ Second, APCO contended that ``the large size of 
the PSST board has led to over-reliance on the Chairman/CEO and a 
three-person executive committee (the chairman, vice-chairman, and 
secretary/treasurer),'' and proposed that a ``smaller board would allow 
for a more inclusive decision-making.'' \809\ Third, APCO argued that 
the PSBL board ``does not provide sufficient diversity of interests or 
required expertise to undertake the extraordinary tasks at hand,'' such 
as ``designing or operating public safety communications systems'' and 
in the fields of ``business, finance, [and] communications 
technology.'' \810\ According to APCO, such lack of experience on the 
board leads the PSST ``to rely even more heavily on the advice of its 
agent/advisor and limits its ability to engage in a thorough critique 
of that advice.'' \811\ APCO suggested that the Commission change the 
composition of the PSBL board to ``a board of eight to twelve members, 
with approximately half of the members being diverse organizations that 
represent potential users of the network and those with expertise in 
public safety communications matters'' and the other half composed of 
``individuals selected by the Commission who do not represent any 
particular organization but who would add critical knowledge and 
expertise to the PSBL's decision making.'' \812\ APCO further 
recommended that the ``position of the Chairman of the board of 
directors'' should be separated ``from the position of CEO/President'' 
because of the very different responsibilities of the two positions.'' 
\813\ APCO, however, did ``not support term limits or mandatory 
rotation of the chairmanship.'' \814\
---------------------------------------------------------------------------

    \808\ APCO Comments at 22.
    \809\ APCO Comments at 22.
    \810\ APCO Comments at 22.
    \811\ APCO Comments at 22.
    \812\ APCO Comments at 24. NENA agreed with APCO's 
recommendations on widening the relevant experience of Board 
members. See NENA Comments at 4.
    \813\ APCO Comments at 21.
    \814\ APCO Comments at 21.
---------------------------------------------------------------------------

    401. Region 33 suggested that PSBL board membership be ``limited to 
no more than nine members, jointly selected and approved by both the 
FCC's PS&HSB and the LMCC.'' \815\ Region 33 indicated that board 
membership should be composed ``entirely from the not-for-profit public 
safety community,'' although ``ex-officio members could be from the 
private sector to serve [in a] technical advisory role but [would] not 
vot[e] on the governing issues.'' \816\
---------------------------------------------------------------------------

    \815\ RPC 33 Comments at 7.
    \816\ RPC 33 Comments at 7. See also Lencioni Comments at 2 (the 
PSBL should ``be a[s] broadly representative of the public safety 
radio user community as possible'').
---------------------------------------------------------------------------

    402. NATOA indicated concern ``that local governments are not 
adequately represented by the current makeup of the [PSST].'' \817\ 
NATOA observed that ``local services, systems, property, and personnel 
will be directly affected by the construction of a nationwide public 
safety broadband network,'' and argued that ``the exclusion of such 
representation deprives the PSBL of the insights and experience of 
elected local government officials that represent the entities the PSBL 
is charged to serve.'' \818\ Other commenters supported this view.\819\
---------------------------------------------------------------------------

    \817\ NATOA et al. Comments at 15.
    \818\ NATOA et al. Comments at 16.
    \819\ See Philadelphia Comments at 4. Philadelphia expressly 
endorses ``the proposal by NATOA'' in this regard. Id. See also 
Philadelphia Reply Comments at 2; Florida Comments at 4.
---------------------------------------------------------------------------

    403. NRPC requested that the Commission name it as ``a full voting

[[Page 57820]]

member organization on the Public Safety Broadband Licensee.'' \820\ In 
this regard, NRPC indicated that it could provide ``a perspective on 
the 700 MHz narrowband reallocation issue and transition as well as the 
necessary coordination aspects,'' and could ``contribute to the 
effectiveness and coordinated use of the 1 MHz Guard Band between 768-
769-798-799 MHz.'' \821\
---------------------------------------------------------------------------

    \820\ NRPC Comments at 6.
    \821\ NRPC Comments at 6.
---------------------------------------------------------------------------

    404. Board Transparency and Voting. The PSST stated that ``for the 
most part, conducting open meetings is a good idea to facilitate its 
efforts to work cooperatively with members of the public safety 
community, as well as with vendors, commercial operators, and other 
parties, and believes that appropriate changes in its procedures should 
be evaluated by the Board.'' \822\ APCO urged ``that the FCC require 
the PSBL board meetings be held in public, with the proviso that the 
board may go into executive session to address sensitive matters,'' but 
with ``minutes * * * describ[ing] the matters addressed in executive 
session to the extent possible without revealing sensitive 
information.'' \823\ Peha similarly stated that ``one essential 
requirement [of the PSBL] is transparency,'' and that ``requirements 
related to transparency should be added to the list [of requirements to 
become the [PSBL],'' and that the ``current [PSBL], the PSST, would not 
meet such requirements, and would therefore be ineligible.'' \824\ 
Other commenters expressed similar views.\825\ AASHTO, however, argued 
that ``[a]s a private entity the PSST is not required to make its 
meetings open to the general public.'' \826\
---------------------------------------------------------------------------

    \822\ PSST Reply Comments at 16.
    \823\ APCO Comments at 21.
    \824\ Peha Comments at 9.
    \825\ See, e.g., RPC 20 Reply Comments at 11; NATOA et al. Reply 
Comments at 7.
    \826\ AASHTO Reply Comments at 5.
---------------------------------------------------------------------------

    405. With respect to voting issues, the PSST and other commenters 
opposed the adoption of any unanimous voting requirement for the Public 
Safety Broadband Licensee board decisions on the basis that such a 
requirement could lead to stalemates and dilute leadership 
accountability.\827\ NPSTC observed that ``[u]nanimous [voting] rules [ 
] place in the hands of one or a few the ability to thwart the best 
ideas and initiatives.'' \828\ Both the PSST and APCO, however, 
supported super-majority voting on certain matters, including election 
of officers.\829\ The IMSA urged the Commission not to ``micromanage 
the affairs of the PSST by adopting additional rules on voting 
majorities.'' \830\
---------------------------------------------------------------------------

    \827\ See PSST Comments at 46; NPSTC Comments at 22; APCO 
Comments at 21.
    \828\ NPSTC Comments at 22.
    \829\ PSST Comments at 46; APCO Comments at 21.
    \830\ IMSA Comments at 11.
---------------------------------------------------------------------------

    406. Discussion. The Commission agrees with commenters who advocate 
revising the Public Safety Broadband Licensee's organizational 
structure to enhance the Public Safety Broadband Licensee's operational 
efficiency and transparency. In light of the unique representative 
nature of the license, which the Public Safety Broadband Licensee holds 
on behalf of those public safety entities eligible to utilize this 
spectrum, the public interest favors any changes to the Public Safety 
Broadband Licensee's organizational structure that will better ensure 
that its actions reflect due consideration of the broad panoply of 
public safety interests it represents. The Commission also considers it 
important to hold the PSBL to a standard of transparency that will 
ensure that its obligations are met in a manner that instills public 
confidence in both the process and the outcome of its actions. The 
Commission believes improvements in these areas can be achieved with a 
few modifications to the Public Safety Broadband Licensee's current 
organizational structure, along with other modifications the Commission 
are proposing with respect to the Public Safety Broadband Licensee's 
Board's meeting and voting requirements.
    407. Board Composition. The Commission tentatively concludes that 
the Commission will retain the current PSBL board composition, except 
that the Commission proposes to replace the National Emergency 
Management Association (NEMA) \831\ on the board with the National 
Regional Planning Council (NRPC). The Commission proposes to remove 
NEMA as a representative organization on the board because its 
initially appointed representative has consistently failed to attend 
board meetings and the organization has not otherwise materially 
participated in PSBL board activities. Because NEMA has not 
meaningfully participated as a member organization of the PSBL, the 
Commission tentatively concludes that it no longer would serve the 
public interest to include NEMA as a PSBL board member.
---------------------------------------------------------------------------

    \831\ NEMA is composed of state directors of emergency 
management, and is dedicated to enhancing public safety by improving 
the nation's ability to prepare for, respond to and recover from all 
emergencies, disasters, and threats to the Commission nation's 
security. See http://www.nemaweb.org.
---------------------------------------------------------------------------

    408. The Commission proposes adding NRPC as a replacement board 
member for a number of reasons. The NRPC is a national organization 
drawn from the FCC-authorized Regional Planning Committees (RPCs), 
whose affiliation is linked to the states and U.S. Territories. The 
NRPC's mission is to serve public safety communications users through 
planning and management to meet their spectrum needs.\832\ As the 
Commission observed in the Second FNPRM, and consistent with the 
Commission tentative conclusions herein, the Commission anticipates 
that some of the PSBL's roles and responsibilities will be akin to the 
functions presently performed by the 700 MHz RPCs.\833\ Thus, the NRPC 
would bring important and relevant experience to the PSBL board by 
virtue of its role in assisting regions with coordinating 700 MHz 
public safety spectrum use. The Commission also agrees with the NRPC's 
comments on its own behalf that its addition to the board would prove 
valuable to the PSBL in terms of the narrowband relocation process, and 
concerning coordination between the use of the public safety broadband 
spectrum and the guard band and narrowband allocations.\834\ The 
Commission seeks comment on these tentative conclusions.
---------------------------------------------------------------------------

    \832\ See National Regional Planning Council at http://www.nrpc.us/index.jsp.
    \833\ Second FNPRM, 22 FCC Rcd at 8091 para. 122.
    \834\ See NRPC Comments at 6.
---------------------------------------------------------------------------

    409. On a related matter, as noted above, APCO requests that the 
Commission clarify that the organizations the Commission names as PSBL 
board members ``must be the actual members of the PSBL board'' in order 
to avoid ``discourag[ing] organizational input into matters being voted 
upon by the PSST Board.'' \835\ One of the core eligibility 
requirements of the PSBL is that it be as representative of the public 
safety community as possible.\836\ The member organizations were 
selected in part based on their representation of various sectors of 
the public safety community. While some member organizations may choose 
to delegate all decision-making authority to their PSBL representatives 
on the board, others may prefer that their representatives seek 
internal approvals so that the member organization can assure that the 
positions taken by its board representative are reflective of the 
organization's core membership. Accordingly, the Commission

[[Page 57821]]

tentatively concludes that representatives of member organizations, in 
their service on the PSBL board, should be permitted reasonable 
accommodation to seek approval of their respective organization's 
leadership. At the same time, the Commission would expect the PSST to 
provide sufficient advance notice of issues to be decided so that board 
members can obtain any organizational approvals ahead of time, without 
causing undue delay to board actions. The Commission seeks comment 
accordingly.
---------------------------------------------------------------------------

    \835\ APCO Comments at 22.
    \836\ See 47 CFR 90.523(e)(3).
---------------------------------------------------------------------------

    410. Chief Executive Officer. The Commission agrees with APCO that 
the position of Chairman of the PBSL board of directors should be 
separated from the position of Chief Executive Officer (CEO) because of 
the very different responsibilities of the two positions. The Chairman 
primarily has management responsibilities, while the CEO primarily has 
charge of day-to-day operations. Separating these positions would allow 
for a discrete focus on two very different responsibilities, and thus 
increased efficiency. Accordingly, the Commission tentatively concludes 
that the Public Safety Broadband Licensee's positions of Chairman of 
the Board and Chief Executive Officer must be filled by separate 
individuals. The Commission's proposal would require that the PSST 
implement such separation within 30 days of adoption of an Order 
issuing final rules in this proceeding. Further, the Commission 
proposes that the PSST may not hire a new individual to fill the CEO 
position until the D Block licensee(s) has made funding available for 
the PSBL's administrative and operational costs. In recognition of the 
separate functions of these roles, the Commission also proposes that 
any individual appointed as CEO cannot have served on the PSBL 
executive committee during the period three years prior to his or her 
appointment as CEO. In this regard, the Commission proposes that the 
Public Safety Broadband Licensee's bylaws be amended to include the 
following provision: ``Duties of Chief Executive Officer. The CEO shall 
have responsibility for the general supervision and direction of the 
business and affairs of the Public Safety Broadband Licensee, subject 
to the control of the Board, and shall report directly to the Board. No 
CEO shall have served on the Public Safety Broadband Licensee's 
Executive Committee for a period of 3 years prior to appointment.''
    411. Officers. The Commission also agrees with APCO that some 
action should be taken to redress what APCO describes as a previous 
``over-reliance on the [PSST's] Chairman/CEO and a three-person 
executive committee (the chairman, vice-chairman, and secretary/
treasurer),'' which APCO describes as having exercised ``a substantial 
degree of discretion without sufficient opportunities for input from 
other board members.'' \837\ The Commission does not agree with APCO, 
however, that any such ``over-reliance'' need be resolved by reducing 
the size of the PSBL board of directors.\838\ The current members of 
the board were appointed with due consideration, and with particular 
attention to the need to establish a board that is broadly 
representative of the public safety community.\839\ The Commission 
believes that any reduction in the number of board members would 
diminish this important objective. Instead, the Commission tentatively 
concludes that the executive committee should be reformed. Accordingly, 
the Commission proposes to require the PSST board to elect a new 
executive committee--i.e., the PSST must elect a new Chairman, Vice-
Chairman, and Secretary/Treasurer within 30 days of adoption of an 
Order issuing final rules in this proceeding. The Commission proposes 
that these executive committee members: (i) Must be limited to a term 
of 2 years; and (ii) may not serve consecutive terms in the same 
position. The Commission further proposes that no current executive 
committee member may be re-elected to the same position on the 
committee.\840\ The Commission also proposes to prohibit the PSBL from 
expanding its executive committee beyond these three offices. The 
Commission seeks comment on these proposals.
---------------------------------------------------------------------------

    \837\ APCO Comments at 22.
    \838\ See APCO Comments at 22.
    \839\ See Second Report and Order, 22 FCC Rcd at 15422 para. 
374; Order on Reconsideration 22 FCC Rcd at para. 4; Public Safety 
and Homeland Security Bureau and Wireless Telecommunications Bureau 
Announce the Four At-Large Members of the Public Safety Broadband 
Licensee's Board of Directors, Public Notice, 22 FCC Rcd 19475 
(PSHSB 2007).
    \840\ Current executive committee members may be elected to 
positions on the committee other than the ones they currently hold.
---------------------------------------------------------------------------

    412. Supermajority Voting. The Commission tentatively concludes 
that the Commission will require three-fourths supermajority voting on 
all major decisions by the PSBL board of directors. Specifically, for 
selection of the CEO and election of officers, the Commission proposes 
to require a three-fourths vote of board members present at the board 
meeting. The Commission also proposes to require a three-fourths vote 
of all board members (not limited to those present at the board 
meeting) for changes in the articles or bylaws, approval of any 
contract of a cumulative value exceeding $25,000 per year, and approval 
of any expenditure exceeding $25,000 per item. Both the PSST and APCO 
supported supermajority voting for certain decisions.\841\ The 
Commission believes that requiring a three-fourths vote, instead of the 
two-thirds majority vote currently required for most major PSBL board 
decisions, will further ensure that the PSBL will only undertake major 
actions that have the broad support of the PSBL's representative 
constituents.
---------------------------------------------------------------------------

    \841\ See PSST Comments at 46; APCO Comments at 21.
---------------------------------------------------------------------------

    413. Public Board Meetings. The Commission observes that both the 
PSST itself as well as public safety interests support the opening of 
PSBL board meetings to the public.\842\ The Commission thus tentatively 
concludes that the Commission will require PSBL board meetings to be 
open to the public, except that the board will have a right to meet in 
closed session to discuss sensitive matters.\843\ Further, the 
Commission proposes that the PSBL must make the minutes of each board 
meeting publicly available, including portions of meetings held in 
closed session, but that the published minutes of closed sessions may 
be redacted. The Commission further proposes that the PSBL must provide 
the public with no less than 30 days advance notice of meetings. 
Relatedly, the Commission tentatively proposes to require that the PSBL 
present its annual, independently audited financial report (which is a 
new financial reporting obligation the Commission are proposing 
elsewhere in this Third FNPRM) in an open meeting. The Commission 
expects that all of these measures will improve the efficiency and 
transparency of the PSBL's actions, and seek comment accordingly.
---------------------------------------------------------------------------

    \842\ See PSST Reply Comments at 16; APCO Comments at 21; NATOA 
et al. Reply Comments at 7.
    \843\ Sensitive matters warranting closed board meetings would 
include, for example, matters involving proprietary or confidential 
information provided by vendors or outside parties for the board's 
consideration, and matters involving public safety or homeland 
security not normally made public.
---------------------------------------------------------------------------

(ii) Commission and/or Congressional Oversight
    414. Background. With respect to enhancing oversight of the 700 MHz 
Public/Private Partnership, in the Second FNPRM the Commission sought 
comment on how the Commission can better exercise oversight over the 
activities of both the Public Safety Broadband Licensee and its 
commercial partner. The Commission asked, for example, whether 
quarterly financial

[[Page 57822]]

reporting is adequate, or whether additional disclosures by the Public 
Safety Broadband Licensee or commercial partner would be 
necessary.\844\ The Commission also asked what additional measures, if 
any, the Commission should take to ensure the appropriate level of 
oversight.\845\ The Commission asked, for example, whether the 
Commission should require Commission approval of certain Public Safety 
Broadband Licensee activities, such as requiring Commission approval 
before the Public Safety Broadband Licensee could enter into contracts 
of a particular duration or cumulative dollar amount.\846\ The 
Commission further asked whether the Commission should require or 
reserve the right to have Commission staff attend meetings of the 
voting board.\847\ In addition to enhancing Commission oversight of the 
700 MHz Public/Private Partnership, the Commission also sought comment 
on how the Commission can ensure an oversight role for Congress, both 
in the operations of the Public Safety Broadband Licensee and the 700 
MHz Public/Private Partnership.\848\ The Commission asked, for example, 
whether Congress should designate some of the Public Safety Broadband 
Licensee's board members.\849\
---------------------------------------------------------------------------

    \844\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
    \845\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
    \846\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
    \847\ See Second FNPRM, 23 FCC Rcd at 8068 para. 51.
    \848\ See Second FNPRM, 23 FCC Rcd at 8066 para. 48.
---------------------------------------------------------------------------

    415. Comments. The PSST opposed ``requiring [it] to obtain prior 
FCC approval for certain decisions'' because this ``would cause delays 
that could undermine the PSST's ability to carry out its duties.'' 
\850\ The PSST observed that it is already required to submit quarterly 
financial reporting to the Commission, and to ``the extent that the 
Commission believes that additional oversight is necessary, the PSST 
can provide additional reports to the FCC on its operational goals and 
actions.'' \851\ The PSST stated that a ``monthly discussion, or more 
often if needed, with the appropriate persons at the FCC would be [an] 
effective means to provide the PSST with guidance and interpretation of 
FCC intent * * * particularly in the early years of its operation.'' 
\852\ The PSST did, however, support a Commission official serving in 
an ex officio capacity on the PSBL board, and recommended that a 
Commissioner serve in that role.\853\
---------------------------------------------------------------------------

    \849\ See Second FNPRM, 23 FCC Rcd at 8066 para. 48.
    \850\ PSST Comments at 46.
    \851\ PSST Comments at 47.
    \852\ PSST Comments at 48.
    \853\ PSST Comments at 48.
---------------------------------------------------------------------------

    416. APCO, however, argued that ``the formal relationship between 
the Commission and the PSBL must be strengthened.'' \854\ Accordingly, 
APCO indicated support for ``Commission oversight, quarterly financial 
reports, and periodic audits to ensure that the PSBL is operating in 
conformance with its public responsibilities and Commission rules,'' as 
well as having ``its records be open for public inspection.'' \855\ 
APCO also indicated support for ``a Commission official serving in an 
ex officio capacity on the PSBL board.'' \856\ Most other comments 
addressing the issue of Commission oversight of the PSBL's activities 
agreed that such oversight is necessary and important.\857\ AASHTO, 
however, warned that ``[i]ncreasing the reporting activities of the 
PSBL will have a significant impact as the cost of providing reports 
and documentation would have to be recovered in additional fees paid by 
the network user.'' \858\
---------------------------------------------------------------------------

    \854\ APCO Comments at 20.
    \855\ APCO Comments at 19.
    \856\ APCO Comments at 20, 24.
    \857\ See NPSTC Comments at 22 (Commission's ``oversight should 
be directed to ensure the PSBL's process results in the handling of 
relevant issues, the opportunity for debate, and the generation of 
sound and fair decisions''); Region 20 Reply Comments at 12 (``[a]t 
a minimum, the books and records of the PSST Board should be always 
available to the Commission's Office of Inspector General''); 
Televate Comments at 5 (in the context of its revised plan for 
implementing a shared broadband network, proposes ``appropriate FCC 
oversight'' for the PSST's evaluation of ``all proposals from 
bidders''); Ericsson Comments at 7; Peha Comments at 11.
    \858\ AASHTO Comments at 11.
---------------------------------------------------------------------------

    417. With respect to Congressional oversight, the PSST stated that 
it ``would welcome Congressional monitoring'' but noted that the need 
for rapid decision-making ``will of necessity limit the types of 
Congressional oversight that could be mandated.'' \859\ Region 20 
indicated reluctance to mandated Congressional oversight, however, 
noting that ``[t]he current provisions of the [Second Report and Order] 
allow for certain ``at-large'' appointments and if the PSST Board 
determines that Congressional participation is in the best interests of 
public safety communications, the Board should be free to reach out to 
members of the Congress as ``at large'' participants.'' \860\
---------------------------------------------------------------------------

    \859\ PSST Comments at 49.
    \860\ RPC 20 Reply Comments at 11-12. See also RPC 33 Comments 
at 7.
---------------------------------------------------------------------------

    418. Discussion. Given the proposed enhancements to the structure 
and functioning of the PSBL discussed elsewhere in this Third FNPRM, 
the Commission believes that the Commission has addressed the principal 
concerns regarding oversight of the PSBL. In addition to affirming and 
enhancing the PSBL's reporting requirements, the Commission is also 
proposing to require the submission of the PSBL's proposed annual 
budget to the Commission for review and approval. In this manner, the 
expected activities and operations of the PSBL can be monitored to 
ensure the PSBL is staying within its role as representative of the 
public safety community. Part and parcel with those reporting 
requirements, the Commission is proposing to require the PSBL to 
establish an audited annual budgeting process, conducted by an 
external, independent auditor, which will enhance the ability to 
oversee the activities and operations of the PSBL. Further, as 
discussed elsewhere in this Third FNPRM, the Commission has narrowed 
and clarified the mission and responsibilities of the PSBL. With 
respect to Congressional oversight, Congress maintains an oversight 
role over the Commission's decisions and thus the Commission sees no 
need for any extraordinary provisions that would presume to compel 
Congress into an oversight role it has not already defined for itself.
(iii) Role of State Governments
    419. The Commission also sought comment in the Second FNPRM on 
whether providing a nationwide, interoperable broadband network might 
be more effectively and efficiently accomplished by allowing state 
governments (or other entities that have or plan interoperable networks 
for the benefit of public safety) to assume responsibility for 
coordinating the participation of the public safety providers in their 
jurisdictions.\861\ To that end, the Commission asked parties 
supporting such action to comment on the proper relationship between 
the state governments and the Public Safety Broadband Licensee and on 
the Commission's authority to establish such a role for state 
governments.\862\ The Commission asked, for example, whether the Public 
Safety Broadband Licensee should be authorized to choose

[[Page 57823]]

a minimum standard for any public safety broadband operation, with the 
state governments given the responsibility to work with public safety 
providers to implement operations in their jurisdictions.\863\ The 
Commission further asked whether such an approach would allow state 
governments wanting higher-grade networks to implement separately these 
more-advanced systems, while allowing those wanting networks at the 
minimum standard to avoid what they may consider unnecessary 
expenses.\864\ The Commission also asked whether state governments are 
better situated to address implementation challenges that cross public 
safety jurisdictions (e.g., coordinating use by sheriffs departments in 
neighboring counties) as well as intra-jurisdictional challenges (e.g., 
coordinating use by the police versus fire departments), or whether, in 
the event different jurisdictions chose different grades of networks, 
there would be a resulting lack of economies of scale and thus higher 
equipment costs for all public safety users.\865\
---------------------------------------------------------------------------

    \861\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
    \862\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
    \863\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
    \864\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
    \865\ Second FNPRM, 23 FCC Rcd at 8068 para. 52.
---------------------------------------------------------------------------

    420. Comments. Commenters expressed mixed views on the issue of 
allowing states to coordinate the participation in the shared network 
by the public safety providers in their jurisdictions. ASSHTO, for 
example, suggested that while there might be benefits in having 
``[s]tate governments [ ] assume responsibility for coordinating the 
participation of the public safety providers in their jurisdictions,'' 
the ``networks operated by states for users other than state agencies 
is voluntary and cannot be impelled.'' \866\ Similarly, NRPC asserted 
that ``[s]tates should be utilized in the development of a nationwide 
public safety broadband network to the degree each state wants to 
assist and utilize its resources.'' \867\ NRPC, however, also 
emphasized that the Commission should ``NOT impose any mandates on 
states to facilitate, administer or promote any element associated with 
a nationwide public safety broadband network.'' \868\
---------------------------------------------------------------------------

    \866\ AASHTO Comments at 11. See also NPSTC Comments at 22 
(``[the] proposal to place in state governments the operating and 
policy responsibilities now committed to the PSBL lacks any credible 
indication that it will work.''); California Comments at 2 
(California, ``no organization or entity has the legislated 
authority or funding necessary to assume the statewide 
responsibility'' for coordinating the participation of public safety 
providers in facilitating the interoperable network in its 
jurisdiction.).
    \867\ NRPC Comments at 9.
    \868\ NRPC Comments at 9.
---------------------------------------------------------------------------

    421. A number of commenters argued, however, that state and local 
participation in the development and management of the network would be 
essential. Region 33 stated that ``any `system' without local oversight 
would be unmanageable.'' \869\ Wireless RERC suggested that State 
Emergency Communications Committees and Local Emergency Communications 
Committees should offer guidance in the ``development of any strategic 
public safety migration plan.'' \870\ Rivada asserted that ``[b]efore 
the Commission can responsibly move forward with a revised public/
private partnership (or any other resolution of the D-Block and 
adjacent public safety spectrum) the interests of various public safety 
agencies at the State, local and Federal level will all need to be 
surveyed and resolved.'' \871\
---------------------------------------------------------------------------

    \869\ RPC 33 Comments at 8.
    \870\ Wireless RERC Comments at 6.
    \871\ Rivada Reply Comments at 4.
---------------------------------------------------------------------------

    422. Discussion. While the Commission appreciates the relationships 
that the states have with the public safety providers in their 
jurisdictions, the Commission does not believe it would be efficient or 
beneficial to carve out a specific role for the states in coordinating 
their public safety providers' participation in the interoperable 
shared broadband network. The Commission expects the Public Safety 
Broadband Licensee to work with all public safety interests, whether at 
local, Tribal, state or regional levels, to ensure that usage of the 
interoperable shared broadband network is coordinated to meet the needs 
of all eligible public safety users in the most efficient manner. 
Further, the Commission observes that participation on the Public 
Safety Broadband Licensee's Board by the National Governors Association 
already serves as a vehicle to ensure that states have direct input in 
the Public Safety Broadband Licensee's activities.
(iv) Reissuance of the Public Safety Broadband License and Selection 
Process
    423. Finally, in light of the potential changes contemplated in the 
Second FNPRM, and the corresponding changes contemplated with respect 
to the D Block, the Commission sought comment on whether the Commission 
should rescind the current 700 MHz Public Safety Broadband License and 
seek new applicants.\872\ In the event such action is warranted, the 
Commission asked whether the Commission should use the same procedures 
as before, i.e., delegating authority to the Chief, Public Safety and 
Homeland Security Bureau to solicit applications, specifying any 
changed criteria that may be adopted following this Third FNPRM, and 
having the Commission select the licensee.\873\ The Commission further 
asked whether there are other considerations that should be taken into 
account in selecting the licensee.\874\ In addition, in light of the 
need to identify the licensee quickly to enable the effective 
development of the 700 MHz Public/Private Partnership, the Commission 
sought comment as to the mechanism the Commission should employ to 
assign the Public Safety Broadband License in the event that there was 
more than one qualified applicant.\875\
---------------------------------------------------------------------------

    \872\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
    \873\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
    \874\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
    \875\ Second FNPRM, 23 FCC Rcd at 8068 para. 53.
---------------------------------------------------------------------------

    424. Comments. With respect to the issue of rescinding the current 
PSBL license and opening a new application round, the PSST asserted 
that ``the Commission should reject any suggestion [to rescind its 
license] and instead work with the organizations represented on the 
current PSST Board to address any major concerns about the 
organizational structure and governance of the organization rather than 
starting from scratch.''\876\ The PSST also contended that ``it is our 
strong belief that the cost and delay in starting up another nonprofit, 
tax-exempt organization will result in irreparable damage to the 
substantial efforts of the public safety community to establish a new 
Public/Private Partnership and SWBN and creates a substantial risk that 
the entire effort to establish a new SWBN will fail.'' \877\ The PSST 
noted that ``there were no other applicants during the initial 
window.'' \878\ The PSST further argued that ``potential bidders on the 
D Block may be discouraged by the uncertainty that would be added to 
the process if interested parties have no idea who will be representing 
public safety interests going forward other applicants.'' \879\ 
Finally, the PSST argued that ``the PSST and its individual Board 
members have already contributed enormous efforts to the establishment 
of the PSST and its related infrastructure [] and it would be wasteful 
to walk away from this substantial investment when funding and 
resources are so scarce.'' \880\ Other

[[Page 57824]]

commenters also urged the Commission to reject proposals that advocate 
rescinding the Public Safety Spectrum Trust's license.\881\ APCO, 
however, asserted that, in order to implement its suggested 
modifications to the PSBL's structure, APCO is comfortable with either 
modification of the PSST's articles and bylaws, or rescission of ``the 
PSST's license'' and selection of ``a new PSBL.'' \882\
---------------------------------------------------------------------------

    \876\ PSST Comments at 47. See also PSST Reply Comments at 16.
    \877\ PSST Reply Comments at 16.
    \878\ PSST Reply Comments at 16.
    \879\ PSST Reply Comments at 16.
    \880\ PSST Reply Comments at 47-48.
    \881\ See, e.g., ComCentric Comments at 3; WFCA Comments at 1; 
Oregon Comments at 1; IMSA Comments at 11; NAEMT Comments at 3; 
NPSTC Reply Comments at 6; NASEMSO Reply Comments at 2; Nextwave 
Reply Comments at 5; RPC 20 Reply Comments at 11; ICMA Reply 
Comments at 2.
    \882\ APCO Comments at 24-25.
---------------------------------------------------------------------------

    425. Discussion. As a threshold matter, the Commission tentatively 
concludes that the public safety broadband spectrum should continue to 
be licensed on a nationwide basis to a single Public Safety Broadband 
Licensee. However, the Commission seeks comment on whether the 
Commission should license the public safety broadband spectrum on a 
regional basis rather than a nationwide basis. Further, if the 
Commission were to license the public safety broadband spectrum on a 
regional basis, the Commission seeks comment on the procedures and 
selection criteria for assigning such licenses, and how multiple public 
safety broadband licensees would be able to ensure a nationwide level 
of interoperability and otherwise satisfy the roles and 
responsibilities of the public safety broadband licensee the Commission 
discusses elsewhere. Assuming that the Commission adopts its tentative 
conclusion to retain the nationwide Public Safety Broadband Licensee, 
the Commission also tentatively concludes that is unnecessary to 
rescind the PSST's license and reissue the license to a new licensee in 
order to implement the foregoing changes to the PSBL. Pursuant to 
section 316(a)(1) of the Act, the Commission has the authority to 
modify ``[a]ny station license * * * if in the judgment of the 
Commission such action will promote the public interest, convenience, 
and necessity, or the provision of this Act.'' \883\ For all of the 
reasons set forth in the preceding discussion, it is the Commission's 
judgment that the tentative changes that the Commission proposes to the 
PSBL will promote the public interest, convenience, and necessity, as 
well as the provisions of the Act. Accordingly, except as otherwise 
noted above, the Commission expects the PSST to implement the tentative 
proposals specific to its structure and internal procedures that the 
Commission has set forth in this Third FNPRM, within 90 days of 
publication of the relevant final rules in the Federal Register.
---------------------------------------------------------------------------

    \883\ 47 U.S.C 316(a)(1).
---------------------------------------------------------------------------

3. Narrowband Relocation
    426. Background. In designating the lower half of the 700 MHz 
Public Safety band (763-768/793-798 MHz) for broadband communications, 
the Second Report and Order consolidated existing narrowband 
allocations to the upper half of the 700 MHz Public Safety band (769-
775/799-805 MHz).\884\ To effectuate this consolidation of the 
narrowband channels, the Commission required the D Block licensee to 
pay the costs of relocating existing narrowband radios from TV channels 
63 and 68 (at 764-767 MHz and 794-797 MHz), and the upper one megahertz 
of channels 64 and 69 (at 775-776 MHz and 805-806 MHz), and capped the 
disbursement amount for relocation costs at $10 million.\885\ The 
Commission also cautioned that any narrowband equipment deployed in 
channels 63 and 68, or in the upper one megahertz of channels 64 and 
69, more than 30 days following the adoption date of the Second Report 
and Order--i.e., after August 30, 2007--would be ineligible for 
relocation funding.\886\ In addition, the Commission prohibited 
authorization of any new narrowband operations in that spectrum, as of 
30 days following the adoption date of the Second Report and Order 
(i.e., as of August 30, 2007).\887\
---------------------------------------------------------------------------

    \884\ Second Report and Order, 22 FCC Rcd at 15406 para. 322.
    \885\ Second Report and Order, 22 FCC Rcd at 15412 para. 341.
    \886\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
    \887\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
---------------------------------------------------------------------------

    427. In the Second Report and Order, the Commission further found 
that, in order to maximize the benefits of the 700 MHz nationwide, 
interoperable broadband communications network, 700 MHz narrowband 
public safety operations then existing under the old narrowband band 
plan needed to be consolidated and cleared no later than the DTV 
transition date (i.e., February 17, 2009).\888\ The Commission required 
every public safety licensee impacted by the consolidation to file a 
certification with the Commission no later than 30 days from the 
effective date of the Second Report and Order, including certain 
information to account for ``pre-programmed narrowband radios that 
public safety agencies may have already taken delivery as of the 
adoption date of [the Second Report and Order] and intend to 
immediately place into operation.'' \889\ The Commission emphasized 
that such information was ``integral to the success of the relocation 
process,'' and cautioned public safety entities that failing to file 
this information in a timely manner would result in forfeiture of 
reimbursement.\890\ As ``an additional measure to define and contain 
the costs that would be entitled to reimbursement,'' the Commission 
prohibited any new authorizations outside of the consolidated 
narrowband segment, stating that such a prohibition would ``ensure that 
the relocation proceeds in an orderly manner and without complications 
stemming from additional operations being deployed in spectrum being 
reallocated.'' \891\ Moreover, as ``an additional means to ensure the 
integrity of the relocation process,'' the Commission imposed a $10 
million cap based on the best evidence available in the record at the 
time of the Second Report and Order.\892\
---------------------------------------------------------------------------

    \888\ Second Report and Order, 22 FCC Rcd at 15406 para. 322.
    \889\ Second Report and Order, 22 FCC Rcd at 15411 para. 336.
    \890\ Second Report and Order, 22 FCC Rcd at 15411 para. 337.
    \891\ Second Report and Order, 22 FCC Rcd at 15412 para. 339.
    \892\ Second Report and Order, 22 FCC Rcd at 15412 para. 341.
---------------------------------------------------------------------------

    428. Two parties filed petitions seeking reconsideration of some or 
all of the foregoing requirements in the Second Report and Order.\893\ 
Among other things, these parties challenged the adequacy of the $10 
million cap on relocation expenses.\894\ A number of other parties also 
supported revising or eliminating the relocation cap.\895\
---------------------------------------------------------------------------

    \893\ See Virginia Petition for Reconsideration; Pierce Transit 
Petition for Reconsideration.
    \894\ See Virginia Petition for Reconsideration; Pierce Transit 
Petition for Reconsideration.
    \895\ See National Association of Telecommunications Officers 
and Advisors (NATOA) Comments at 9-11; State of Nebraska (Nebraska) 
Opposition at 2; Motorola Comments at 1-7.
---------------------------------------------------------------------------

    429. One petitioner also asked that the Commission make clear that 
parties who purchased and began to deploy systems before the August 30, 
2007, cut-off date can continue to deploy those systems after August 
30, and obtain full reimbursement for the relocation of all such 
systems.\896\ Another party asked the Commission to modify the Second 
Report and Order to permit continued authorization and deployment of 
statewide radio public safety systems that were in the process of 
construction and implementation as of the date of the Second Report and 
Order in channels 63 and 68 and the upper one megahertz of channels 64 
and 69 through January

[[Page 57825]]

31, 2009; allow the owner of any such statewide radio public safety 
system to obtain reimbursement for all of its costs incurred in the 
installation of such system; and reconsider the $10 million cap on 
rebanding costs.\897\
---------------------------------------------------------------------------

    \896\ See generally Pierce Transit Petition for Reconsideration.
    \897\ See generally Virginia Petition for Reconsideration.
---------------------------------------------------------------------------

    430. In the Second FNPRM, mindful of the desire to provide 
certainty to potential bidders as to the relocation obligation that 
would attach to the winner of the D Block spectrum, the Commission 
sought comment on whether the Commission should revise or eliminate the 
$10 million cap on relocation expenses.\898\ The Commission asked 
parties to provide specific data and cost estimates regarding 
relocation expenses, particularly taking into account the 
certifications filed in the docket pursuant to the Second Report and 
Order.\899\
---------------------------------------------------------------------------

    \898\ See Second FNPRM, 23 FCC Rcd at 8111 para. 180.
    \899\ See Second FNPRM, 23 FCC Rcd at 8111 para. 180.
---------------------------------------------------------------------------

    431. Given the proposed re-auction of the D Block and associated 
timing, the Commission also sought comment on the date by which such 
relocation must be completed. In particular, the Commission asked 
whether the Commission should continue to require that relocation be 
completed by the DTV transition date or set an alternative date, and if 
so, what such alternate date should be.\900\ The Commission also asked 
whether the Commission should allow relocation to occur on a rolling 
basis, such that the D Block licensee would be required to relocate 
narrowband operations only as the broadband network is built out in a 
particular market and, if so, how much notice the D Block licensee 
should be required to give to a narrowband licensee in advance of 
relocation.\901\ The Commission further sought comment on any other 
viable mechanism for facilitating relocation, and the appropriate 
timing of such an approach.\902\ The Commission also asked whether the 
Commission should retain the requirement that capped costs be deposited 
in a trust account to be administered by the Public Safety Broadband 
Licensee or, if the Commission were to eliminate the cap, how the trust 
mechanism would function.\903\ With respect to management of the 
reimbursement process, the Commission asked whether the Commission 
should continue to require that the Public Safety Broadband Licensee 
manage the reimbursement process for the narrowband licensees.\904\ In 
the event that maintaining such requirement is appropriate, the 
Commission sought comment on whether the Commission should require that 
public safety entities seeking reimbursement provide detailed cost 
information to the Public Safety Broadband Licensee, what such cost 
information should entail, and whether the Public Safety Broadband 
Licensee should be afforded discretion in assessing the soundness of 
the cost estimates.\905\ The Commission also asked whether the Public 
Safety Broadband Licensee can leverage its status as a nationwide 
license holder to negotiate terms with equipment and technology vendors 
to relocate multiple narrowband operations, and thus achieve economies 
of scale.\906\ The Commission further asked whether the Public Safety 
Broadband Licensee should have recourse to the Commission if it 
determines the cost estimates provided by individual public safety 
entities, including those passed through by technology or equipment 
vendors, are unreasonable.\907\
---------------------------------------------------------------------------

    \900\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \901\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \902\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \903\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \904\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \905\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \906\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
    \907\ See Second FNPRM, 23 FCC Rcd at 8111 para. 181.
---------------------------------------------------------------------------

    432. With respect to the August 30, 2007 cut-off date established 
in the Second Report and Order for narrowband deployments outside of 
the consolidated narrowband spectrum, the Commission sought comment on 
whether extension of that deadline is inappropriate, and any other 
issue related to the reconsideration petitions filed by Virginia and 
Pierce Transit.\908\ The Commission received a number of comments 
addressing the various issues associated with the narrowband 
relocation, as detailed below.
---------------------------------------------------------------------------

    \908\ See Second FNPRM, 23 FCC Rcd at 8111 para. 182.
---------------------------------------------------------------------------

(i) February 17, 2009, Relocation Deadline
    433. Comments. With respect to the deadline for relocating 
narrowband operations that were in place prior to August 30, 2007, 
several commenters agree that the Commission should extend the February 
17, 2009, deadline for such action adopted in the Second Report and 
Order.\909\ The PSST, for example, stated that, ``[s]ince the date for 
the D-Block re-auction has not yet been set, and since the successful 
auction will be followed by the NSA negotiation process, it does not 
seem realistic for the FCC to retain the February 17, 2009 completion 
date.'' \910\ The PSST recommended instead that the narrowband 
relocation deadline be set ``twelve months after funding from the D 
Block winner becomes available.'' \911\
---------------------------------------------------------------------------

    \909\ See, e.g., Ada County Sherriff's Office Comments at 1; 
APCO Comments at 39; NRPC Comments at 7; NPSTC Comments at 23; 
Motorola Comments at 21; Louisiana Comments at 2; TeleCommUnity 
Comments at 7; Eads Comments at 4; Lencioni Comments at 1.
    \910\ PSST Comments at 51-52.
    \911\ PSST Comments at 52.
---------------------------------------------------------------------------

    434. Motorola agreed with the PSST that ``a new deadline for 
relocation be established twelve months after funding from the D Block 
winner becomes available.'' \912\ Motorola further asserted that such 
revised deadline would ``provide[ ] a more realistic time frame to 
effectuate relocation than the Commission's previously adopted 
policies.'' \913\ AASHTO argued that ``the relocation of existing 
narrowband users should be grandfathered until there are funding 
mechanisms in place to reimburse the public safety agencies for the 
costs involved in returning or replacing equipment incapable of being 
returned.'' \914\ AASHTO also supported using ``rolling dates for the 
relocation of existing users coupled with the availability of the 
network in their area.'' \915\
---------------------------------------------------------------------------

    \912\ Motorola Reply Comments at 6.
    \913\ Motorola Reply Comments at 6.
    \914\ AASHTO Comments at 13.
    \915\ AASHTO Comments at 13.
---------------------------------------------------------------------------

    435. Discussion. As indicated above, in the Second Report and Order 
the Commission required narrowband operations that had already been 
deployed under the prior 700 MHz band plan on channels 63 and 68, and 
the upper one megahertz of channels 64 and 69, to be relocated to and 
consolidated within the new narrowband channels (at 769-775 MHz/799-805 
MHz) by the DTV transition deadline of February 17, 2009.\916\ Implicit 
in the Commission's decision to adopt February 17, 2009, as the 
relocation deadline were the assumptions that Auction 73 would yield a 
national D Block licensee and that the NSA would be successfully 
negotiated and approved with sufficient time to effect the narrowband 
relocations prior to February 17, 2009--the deadline by which the 
public safety broadband frequency bands must be vacated by current 
analog television operations. Those assumptions did not

[[Page 57826]]

materialize and, therefore, an extension of the current February 17, 
2009, deadline for completing the relocation of all narrowband 
operations to the consolidated narrowband channels appears warranted.
---------------------------------------------------------------------------

    \916\ Second Report and Order, 22 FCC Rcd at 15410 para. 332.
---------------------------------------------------------------------------

    436. In determining a new narrowband relocation deadline, the 
Commission continues to believe that a uniform deadline is required to 
allow both the D Block licensee and the public safety community to 
concentrate on deploying a shared network in the 700 MHz public safety 
broadband spectrum, unconstrained by the presence of narrowband 
operations. While the Commission understands that the shared broadband 
network will be constructed over time, and may reach some areas of the 
country sooner than others, the Commission believes that tying 
narrowband relocations to actual or planned buildout of the network on 
a rolling or otherwise piecemeal basis would be impractical and 
inefficient, and could cause delays in network deployment. The 
Commission agrees with the PSST that a single relocation deadline tied 
to the availability of funding is the most prudent course.\917\ 
Accordingly, the Commission proposes to extend the narrowband 
relocation deadline to twelve months from the date upon which 
narrowband relocation funding is made available by the D Block 
licensee(s), which as explained below, will be no later than the date 
upon which the executed NSA(s) is submitted to the Commission for 
approval.
---------------------------------------------------------------------------

    \917\ See PSST Comments at 52. See also Motorola Reply Comments 
at 6; NPSTC Comments at 24.
---------------------------------------------------------------------------

(ii) $10 Million Cap
    437. Comments. As to the $10 million cap on narrowband relocation 
cost reimbursement, several commenters argued that the $10 million cap 
is inadequate.\918\ The PSST, for example, recommended that that the 
Commission ``replace the current $10 Million cap on the D Block 
licensee's reimbursement obligation with a cap of $75 Million.'' \919\ 
According to the PSST, ``the current cap substantially underestimates 
the funds needed to address this situation based on [ ] extensive work 
with the affected public safety agencies, equipment vendors and with 
organizations such as the NPSTC that have committed time and resources 
toward identifying a cost-effective solution.'' \920\ The PSST also 
observed that ``it has been determined that the original cost estimate 
failed to include one critical equipment category: the vehicular 
repeater,'' the retuning of which ``will significantly increase the 
total relocation cost.'' \921\ The PSST further asserted that its 
proposed $75 million cap ``is but a fraction of the anticipated cost of 
purchasing the spectrum at auction and deploying and operating the SWBN 
[and] not an amount that should deter an otherwise interested D Block 
bidder.'' \922\
---------------------------------------------------------------------------

    \918\ See, e.g., Louisiana Comments at 2; APCO Comments at 39; 
Pierce Transit Comments at 5; NATOA et al Comments at 16; Virginia 
Comments at 5; NPSTC Comments at 24; Eads Comments at 3; Lencioni 
Comments at 1; RPC 33 Comments at 20; RPC 20 Reply Comments at 11.
    \919\ PSST Comments at 53.
    \920\ PSST Comments at 53. See also, Motorola Reply Comments at 
5.
    \921\ PSST Comments at 53.
    \922\ PSST Comments at 53.
---------------------------------------------------------------------------

    438. The Ada County Sheriff's Office argued that, ``the $10M cap * 
* * is far too low for the actual cost of relocating users to the new 
band.'' \923\ According to Ada County Sheriff's Office, relocation 
funding should instead be ``based upon actual relocating costs for each 
agency affected.'' \924\ The Commonwealth of Virginia argued that ``no 
`cap' on public safety relocation is appropriate given the very 
substantial proceeds which will be realized from this D Block auction * 
* * the commercial users should pay the full relocation costs of the 
public safety entities, who generally lack budget flexibility or 
surplus funding to allow them to absorb these costs.'' \925\
---------------------------------------------------------------------------

    \923\ Ada County Sheriff's Office Comments at 1.
    \924\ Ada County Sheriff's Office Comments at 1.
    \925\ Commonwealth of Virginia Comments at 5-6.
---------------------------------------------------------------------------

    439. Pierce Transit argued that ``the Commission to this day has no 
information on which it can rely with any reasonable degree of 
confidence, as to what the incumbent public safety licensees' aggregate 
relocation costs will be,'' and ``imposing the $10 million cap, without 
having any concrete, verifiable information on the true cost of 
reconfiguring incumbent operations, raises the specter that the dozens 
of affected public organizations may be subject to either pro rata or 
first come, first serve reimbursements that cannot hope to fully 
compensate affected entities for their full relocation costs.'' \926\
---------------------------------------------------------------------------

    \926\ Pierce Transit Comments at 5-6.
---------------------------------------------------------------------------

    440. Motorola observed that ``[t]he costs of relocation vary 
widely,'' and thus ``[a] complete and accurate estimate of relocation 
costs can only be created by soliciting information directly from 
individual public safety agencies as relocation costs will vary by 
equipment and agency.'' \927\ Motorola further argued that in order to 
collect this information, ``the FCC should require public safety 
agencies seeking reimbursement to provide detailed cost information to 
the PSBL or the FCC directly within 90 days from the date of a 
Commission Public Notice that would start this process.'' \928\
---------------------------------------------------------------------------

    \927\ Motorola Comments at 19. Motorola asserted in its Reply 
Comments that its initial estimate on narrowband relocation costs 
``did not include any management costs or other costs that licensees 
and the parties actually performing the reconfiguration may 
determine are appropriate and reasonable.'' Motorola Reply Comments 
at 5.
    \928\ Motorola Comments at 19.
---------------------------------------------------------------------------

    441. The National Association of Telecommunications Officers and 
Advisors et al. asserted that ``[t]he cost of relocation must be borne 
by the D Block licensee, and the timing for accomplishing this task 
must be more attuned to the timing under which the D Block licensee 
will be able to make use of the spectrum.'' \929\
---------------------------------------------------------------------------

    \929\ NATOA et al. Reply Comments at 9.
---------------------------------------------------------------------------

    442. Discussion. The Commission agrees with the majority of 
commenters who suggested that the $10 million cap on narrowband 
relocation costs to be reimbursed by the D Block licensee may be 
inadequate to fully reimburse public safety entities for the likely 
costs of relocation. The Commission adopted the $10 million cap in the 
Second Report and Order based upon the record received in response to 
the preceding 700 MHz FNPRM, which sought information regarding both 
the number of narrowband radios deployed and in use, and the costs 
involved in consolidating the narrowband channels.\930\ The Commission 
received no information regarding the costs of funding relocation 
except for a response from Motorola, in which it estimated 750,000-
800,000 radios currently deployed and a relocation cost of 
approximately $10 million.\931\
---------------------------------------------------------------------------

    \930\ Implementing a Nationwide, Broadband, Interoperable Public 
Safety Network in the 700 MHz Band; Development of Operational, 
Technical and Spectrum Requirements for Meeting Federal, State and 
Local Public Safety Communications Requirements Through the Year 
2010, WT Docket Nos. 06-150, 01-309, 03-264, 06-169, 96-86, CC 
Docket No. 94-102, PS Docket No. 06-229, Report and Order and 
Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064, 8159 para. 
264 (2007) (700 MHz Further Notice).
    \931\ See Second Report and Order, 22 FCC Rcd at 15410 para. 
333.
---------------------------------------------------------------------------

    443. Since the Commission adopted the Second Report and Order, the 
Commission has received and reviewed additional information on the 
number and types of equipment deployed in the 700 MHz band, in the form 
of the certifications from public safety licensees regarding the number 
of handsets, base stations and repeaters that they had in operation as 
of August 30, 2007.\932\ The Commonwealth of

[[Page 57827]]

Virginia estimates its costs of relocation at $48 to $100 per handset, 
$1,000 per repeater unit, and $3,000 per base station.\933\ Similarly, 
Motorola estimates the cost of relocation for a mobile/portable unit 
would be $100, and the cost for a base transmitter site would be 
$3,000.\934\ These costs also are consistent with the Commission's 
experience with rebanding efforts in the 800 MHz band. Based on the 
Commission's review of the certifications filed, and using the maximum 
per-unit estimates suggested by the Commonwealth of Virginia, the 
Commission calculates the cost of relocating equipment that public 
safety licensees have certified as being in operation by August 30, 
2007, at approximately $23.6 million.\935\ This figure also assumes 
that every handset and transmitter in operation as of the cut-off date 
would require relocation reimbursement. Moreover, while not all of the 
entities that have sought waivers of the August 30, 2007, cut-off for 
new narrowband deployments outside the consolidated channels have 
sought reimbursement for the costs of relocating such equipment, the 
Commission notes that even if the Commission assumed full reimbursement 
for each waiver requested, taking such action would add approximately 
$3 million to the Commission's revised $23.6 million relocation cost 
estimate.\936\ Thus, including both the equipment certified as eligible 
for reimbursement under the Second Report and Order and equipment 
permitted to be deployed after the August 30, 2007, cut-off date 
pursuant to a waiver, total reimbursement liability for the D Block 
licensee(s) would stand at approximately $26.6 million.\937\
---------------------------------------------------------------------------

    \932\ See Second Report and Order, 22 FCC Rcd at 15411 paras. 
336, 337; Public Safety and Homeland Security Bureau Announces an 
October 23, 2007 Deadline for Filing 700 MHz Relocation 
Certification Information, PS Docket No. 06-229, WT Docket No. 96-
86, Public Notice (PSHSB 2007).
    \933\ Virginia Petition for Reconsideration at 10. Virginia 
suggests that the Commission reopen the record for more information 
on costs. Id. at 11. As the Commission has explained, parties have 
already had ample notice and opportunity to submit cost information 
into the record in this proceeding, including a call again for such 
information in the Second FNPRM. See Second FNPRM, 23 FCC Rcd at 
8111 para. 180. Moreover, in light of the information received 
through the certification process, the Commission finds there is no 
need to reopen this issue.
    \934\ Motorola June 2007 Ex Parte at 2-3.
    \935\ The Commission review of these certifications has 
identified approximately: 100,658 mobiles, 6,511 vehicular 
repeaters, 3,180 control stations, and 1,170 base stations.
    \936\ This $3 million figure represents the aggregate costs that 
would apply to relocate the subject waiver narrowband equipment that 
was contracted, paid for and received to be deployed in the non-
consolidated narrowband channels (i.e., in the 764-767/775-776 MHz 
and 794-797/805-806 MHz frequency bands) prior to the August 10, 
2007, release date of the Second Report and Order only. In the 
Commission Virginia Waiver Order, the Commission determined that 
``[i]t is in the public interest, therefore, to provide interim 
waiver relief for continued deployment outside of the consolidated 
narrowband channels where there has been a showing of potential 
public harm and there is evidence of a comprehensive 700 MHz 
deployment plan that predates August 30, 2007 for which equipment 
has been received and/or deployed.'' Request for Waiver of 
Commonwealth of Virginia, PS Docket No. 06-229, WT Docket No. 96-86, 
Order, at para. 7.
    \937\ To be clear, this amount represents the aggregate hard 
costs directly associated with modifications necessary to implement 
the relocation of base stations, mobiles and portables, and not for 
any unrelated improvements.
---------------------------------------------------------------------------

    444. In light of the foregoing, the Commission tentatively proposes 
to cap the narrowband relocation reimbursement costs for which the D 
Block licensee(s) would be obligated to pay at $27 million.\938\ The 
Commission emphasizes that, based upon the entire record before us, 
this figure should be more than sufficient to ensure that all public 
safety entities are fully reimbursed their costs for relocating their 
narrowband systems to the consolidated narrowband channels. This figure 
includes generous assumptions, using maximum per unit costs and 
assuming every handset, base station and vehicle repeater, including 
those that are the subject of waiver requests, would require relocation 
reimbursement. To account for the possibility that the D Block auction 
could result in the issuance of regional licenses to more than one 
regional licensee, the Commission proposes setting individual caps for 
each RPC region based upon the certification and waiver request data 
before us, with the aggregate cap remaining at $27 million. The 
proposed break-down for the cap for each region is set forth in 
Appendix C to this Third FNPRM.\939\ The Commission proposes that each 
regional D Block licensee would be responsible for paying the cost of 
narrowband relocation within its region(s). In the event that one or 
more D Block regional licenses remains unsold, the Commission proposes 
that the cost of relocating 700 MHz narrowband facilities in such 
region(s) would be prorated among the remaining D Block licensees.
---------------------------------------------------------------------------

    \938\ The Commission observe that there is no substantiation in 
the record for the PSST's proposed reimbursement cap of $75 million.
    \939\ In instances where a state narrowband system operates in 
more than one RPC region, the Commission proposes that the state 
provide the PSBL with data concerning the location of its narrowband 
equipment so that the PSBL can apportion the total reimbursement 
amount to be paid by the respective D Block licensee for each 
region.
---------------------------------------------------------------------------

(iii) August 30, 2007 Cut-off Date
    445. Comments. With respect to the August 30, 2007, cut-off date 
for narrowband deployments outside of the consolidated narrowband 
spectrum, several commenters proposed that the cut-off date should be 
extended.\940\ The Commonwealth of Virginia, for example, asserted 
that, ``any absolute August 30, 2007 cutoff date was inappropriate for 
systems which had already entered into contractual commitments for 
system deployment as of the date of the Second Report and Order * * * 
any August 30, 2007 date must apply both to equipment installed as of 
that date, and contracted for as of that date.'' \941\ Tyco suggested 
that ``the Commission leniently grant `case-by-case' waivers for 
narrowband deployments to ensure the proper function of mission-
critical communication systems.'' \942\ According to Tyco, ``[s]uch 
time extensions, coupled with the increased funding, will help to avoid 
undue burdens on existing public safety users.'' \943\
---------------------------------------------------------------------------

    \940\ See, e.g., Louisiana Comments at 2; Pierce Transit 
Comments at 6; Motorola Comments at 21; TeleCommUnity Comments at 6; 
Eads Comments at 4.
    \941\ Virginia Comments at 10. See also Motorola Reply Comments 
at 7.
    \942\ TE M/A-COM Comments at 9.
    \943\ TE M/A-COM Comments at 9.
---------------------------------------------------------------------------

    446. The PSST, however, argued that the Commission should 
``maintain the August 30, 2007 deadline for equipment whose relocation 
costs will be reimbursable.'' \944\ The PSST asserted that it ``is well 
aware of the difficulties this presents for certain licensees, but [] 
sees no reasonable alternative that would not seriously undermine the 
deployment of the SWBN in a timely fashion.'' \945\ The Region 33 
(Ohio) 700 MHz Regional Planning Committee agreed that the date should 
not be changed, stating, ``[t]hat was about 10 months ago and agencies 
have had to make adjustments in their rollout of the affected 
frequencies. To ask them to change the plan again would be doing them a 
disservice.'' \946\
---------------------------------------------------------------------------

    \944\ PSST Comments at 52.
    \945\ PSST Comments at 52.
    \946\ RPC 33 Comments at 20.
---------------------------------------------------------------------------

    447. The Virginia Information Technologies Agency (``VITA'') 
favored an approach ``that allows for both a post August 30, 2007 
deployment strategy and a process that allows for those units deployed 
after the August 30, 2007 deployment date to have access to additional 
relocation funding opportunities to move them to the consolidated band 
plan in a uniform

[[Page 57828]]

manner.'' \947\ According to VITA, such approach would result in ``a 
congruent process that allows for uniform deployment, band relocation 
and relocation funding.'' \948\
---------------------------------------------------------------------------

    \947\ VITA Comments at 5.
    \948\ VITA Comments at 5.
---------------------------------------------------------------------------

    448. Discussion. As indicated, in the Second Report and Order, the 
Commission prohibited new narrowband operations outside of the 
consolidated narrowband blocks as of 30 days following the adoption 
date of the Second Report and Order--i.e., as of August 30, 2007.\949\ 
The Commission further required every public safety licensee impacted 
by such consolidation to file a certification with the Commission 
identifying narrowband deployment information to account for pre-
programmed narrowband radios that public safety agencies may have 
already taken delivery as of the adoption date of the Second Report and 
Order and which they intended to immediately place into operation.\950\ 
The Commission emphasized that such information was ``integral to the 
success of the relocation process,'' and cautioned public safety 
entities that failing to file this information in a timely manner would 
result in forfeiture of reimbursement.\951\ The primary purposes behind 
the adoption of this cut-off date and associated certification 
requirements were to clearly define and contain the costs that would be 
entitled to reimbursement, and to ensure that the relocation of 
narrowband operations would proceed in an orderly manner and without 
complications stemming from additional operations being deployed in 
spectrum being reallocated for broadband use.\952\ The Commission made 
clear that public safety entities could place into operation narrowband 
equipment in the consolidated narrowband blocks 769-775 and 799-805 
MHz.\953\
---------------------------------------------------------------------------

    \949\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para. 
339.
    \950\ Second Report and Order, 22 FCC Rcd at 15406, 15411 para. 
336.
    \951\ Second Report and Order, 22 FCC Rcd at 15406, 15411 para. 
337.
    \952\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para. 
339.
    \953\ Second Report and Order, 22 FCC Rcd at 15406, 15412 para. 
339.
---------------------------------------------------------------------------

    449. As advocated by the PSST and others,\954\ the Commission 
tentatively concludes that the existing August 30, 2007, cut-off date 
should not be changed. The underlying necessities of adopting this 
date--containing relocation costs, encouraging narrowband deployment in 
the consolidated narrowband channels and, more generally, carrying out 
a swift and thorough narrowband relocation process in order to quickly 
and efficiently establish the nationwide, interoperable public safety 
broadband network--have not changed since its adoption in the Second 
Report and Order. The Commission appreciates the Commonwealth of 
Virginia's arguments that the August 30, 2007, cut-off date may have 
been inappropriate in cases where entities already entered into 
contractual commitments for systems prior to the adoption of the Second 
Report and Order.\955\ However, based upon the petitions seeking waiver 
of this cut-off date that the Commission has received thus far, it 
appears that relatively few entities fall into this category and the 
Commission believes such individualized determinations are best made on 
a case-by-case basis through the waiver process.\956\
---------------------------------------------------------------------------

    \954\ See PSST Comments at 52; RPC 33 Comments at 20.
    \955\ See Virginia Comments at 10.
    \956\ In establishing the prohibition on new narrowband 
operations after August 30, 2007, it was not the Commission's 
intention to create hardship or delay systems needed to protect the 
safety of life and property, and the Commission has provided interim 
waiver relief to various public safety entities for continued 
deployment outside of the consolidated narrowband channels where 
there has been a showing of potential public harm and there is 
evidence of a comprehensive 700 MHz deployment plan that predates 
August 30, 2007 for which equipment has been received and/or 
deployed. See Virginia Waiver Order at para. 7.
---------------------------------------------------------------------------

    450. The Commission recognizes, however, that while the waiver 
process has thus far provided continuing operating authority beyond the 
August 30, 2007, cut-off deadline for equipment contracted for prior to 
the adoption of the Second Report and Order, a decision as to whether 
costs for relocating equipment deployed after this date could be 
reimbursed was deferred until the outcome of this proceeding.\957\ 
Accordingly, the Commission tentatively concludes that for those 
parties granted waiver relief to date, and seeking reimbursement for 
relocating equipment deployed pursuant to such waiver, the costs for 
relocating such equipment will be eligible for reimbursement by the D 
Block licensee. In this regard, the Commission would delegate authority 
to the PSHSB to grant such relief. The Commission also tentatively 
concludes that the PSHSB, acting under delegated authority, may grant 
similar relief with respect to pending waiver requests, so long as the 
request meets the criteria the Commission has established for granting 
waiver authority to deploy narrowband systems after the August 30, 2007 
cut-off date--i.e., where there has been a showing of potential public 
harm and there is evidence of a comprehensive 700 MHz deployment plan 
that predates August 30, 2007, for which equipment has been received 
and/or deployed. As observed above, the Commission calculates that the 
total cost of relocating such equipment is approximately $3 million, 
and thus there would be sufficient funding available for waiver 
applicants meeting these criteria. The Commission also tentatively 
concludes that, as of the release date of this Third FNPRM, the 
Commission will not accept any new waiver requests to deploy narrowband 
equipment outside of the consolidated narrowband blocks, or amendments 
to pending waiver requests that would increase the number of narrowband 
radios that would require relocation reimbursement. The Commission 
proposes taking this action in the interests of ensuring certainty with 
respect to the total relocation costs and in recognition of the fact 
that any parties requesting relief would already have submitted waiver 
requests.
---------------------------------------------------------------------------

    \957\ See, e.g., Virginia Waiver Order at para. 8.
---------------------------------------------------------------------------

(iv) Funding Mechanism
    451. Comments. Most commenters addressing the issue of how the 
narrowband relocation funding should be processed agreed that the 
source of such funding should be the D Block licensee and the 
administration of such funding should be handled by the Public Safety 
Broadband Licensee. Motorola, for example, asserted that, ``if the 
Commission proceeds with a Public/Private Partnership, once the D-Block 
is successfully auctioned and appropriate Network Sharing Agreements 
are executed, the D-Block licensee(s) should be required to deposit the 
reimbursement funds into a trust fund administered by the PSBL.'' \958\
---------------------------------------------------------------------------

    \958\ Motorola Comments at 20.
---------------------------------------------------------------------------

    452. The State of Louisiana suggested ``a process in which 
Louisiana and other public safety agencies impacted by the 700 MHz 
narrowband reconfiguration can develop and provide actual cost 
estimates for the equipment that we have already deployed, and that now 
needs to be relocated per the new narrowband plan.'' \959\ 
Additionally, the State of Louisiana favored making the PSST ``the 
central clearing point for gathering these cost estimates from all 
affected public safety agencies.'' \960\
---------------------------------------------------------------------------

    \959\ Louisiana Comments at 2.
    \960\ Louisiana Comments at 2.
---------------------------------------------------------------------------

    453. APCO asserted that ``the Commission should retain the 
requirement that the D Block licensee pay the cost of relocating 
narrowband licensees,'' because ``regardless of any public/private 
partnership, the D Block

[[Page 57829]]

licensee will benefit from the reconfiguration of the 700 MHz band as 
it eliminates a potential interference problem.'' \961\ APCO further 
stated, however, that the ``Commission should consider relieving the 
PSBL of the responsibility of managing the relocation funding,'' 
because ``it adds a function unrelated to the PSBL's core activity, and 
deepens its reliance on outside contractors for which it lacks the 
funds to support.'' \962\ APCO contended that ``the Commission should 
[instead] appoint a third party (as it did with the 800 MHz Transition 
Administrator) or require the D Block licensee to retain the services 
of an entity that will manage the process.'' \963\ NPSTC opposed APCO's 
position on removing the PSBL from responsibility for overseeing 
narrowband relocations, asserting that such action would be a ``set 
back to an important facet of the Commission's decision to realign the 
700 MHz spectrum and create a public private partnership to deploy and 
manage a nationwide broadband network.'' \964\ NPSTC further argued 
that ``[t]he PSBL's work with regard to the relocation of 700 MHz 
narrowband incumbents demonstrates tangibly not only its dedication to 
the Commission's decisions but its ability to work with the often 
competing interests.'' \965\
---------------------------------------------------------------------------

    \961\ APCO Comments at 39.
    \962\ APCO Comments at 39.
    \963\ APCO Comments at 39.
    \964\ NPSTC Reply Comments at 15.
    \965\ NPSTC Reply Comments at 15.
---------------------------------------------------------------------------

    454. Discussion. In the Second Report and Order, the Commission 
required that the Upper 700 MHz Band D Block licensee pay the costs 
associated with relocating public safety narrowband operations, in 
recognition of the significant benefits that will accrue to the D Block 
licensee.\966\ These fundamental benefits would not change under the 
700 MHz Public/Private Partnership construct the Commission is 
tentatively proposing here--whether such partnership is implemented on 
a regional or nationwide basis. Further, bidders for the D Block 
licenses will be able to factor the prospective cost of narrowband 
relocation into their auction bids. Accordingly, the Commission 
tentatively concludes that the Commission will retain the requirement 
that the Upper 700 MHz Band D Block nationwide licensee, or regional 
licensees, as determined by the auction, must pay the costs associated 
with relocating public safety narrowband operations to the consolidated 
narrowband channels.
---------------------------------------------------------------------------

    \966\ Second Report and Order, 22 FCC Rcd at 15336 para. 120, 
15411 para. 336.
---------------------------------------------------------------------------

    455. In terms of funding mechanics, the Commission also continues 
to believe that the Public Safety Broadband Licensee is best suited to 
administer the relocation process consistent with the requirements and 
deadlines set forth herein.\967\ The Public Safety Broadband Licensee 
is composed of board members with significant experience and expertise 
involved with assuming this role and in fact already has demonstrated 
efforts working on the narrowband relocation issues.\968\
---------------------------------------------------------------------------

    \967\ Second Report and Order, 22 FCC Rcd at 15413-414, 15426-
427 paras. 343-44, 383.
    \968\ See, e.g., PSST Comments at 53.
---------------------------------------------------------------------------

    456. The Commission reiterates that under the Commission's proposal 
the D Block licensee(s') reimbursement obligation will be limited to 
the minimum ``hard'' costs directly associated with modifications 
necessary to implement the relocation of base stations, mobiles and 
portables, and will not extend to any ``soft'' costs, such as person-
hours expended in effecting such modifications, or costs associated 
with unrelated improvements.\969\ The Commission also will not permit 
such funding to cover costs associated with any modifications that may 
be necessary to the Computer Assisted Pre-Coordination Resource and 
Database (CAPRAD) system or other programs used by Regional Planning 
Committees to assign channels, or to any costs associated with 
amendments to regional plans or narrowband licenses.\970\
---------------------------------------------------------------------------

    \969\ Second Report and Order, 22 FCC Rcd at 15411 para. 338.
    \970\ Second Report and Order, 22 FCC Rcd at 15411 para. 338.
---------------------------------------------------------------------------

    457. The Commission understands that the Public Safety Broadband 
Licensee will incur administrative costs in administering the 
relocation process. In this respect, the PSBL may recover such costs 
along with its other administrative and operating costs through the D 
Block licensee(s) funding mechanisms described elsewhere in this Third 
FNPRM.
    458. The Commission also proposes to retain the narrowband 
relocation implementation process developed in the Second Report and 
Order, with conforming provisions to address the possibility of 
regional licensing. Under this approach, the Commission will require 
the winning bidder(s) for the D Block license(s) and the Public Safety 
Broadband Licensee jointly to submit for Commission approval a 
narrowband relocation plan(s) within 30 days following the NSA 
Negotiation Commencement Date.\971\ If the D Block is licensed on a 
regional basis, the Public Safety Broadband Licensee and regional D 
Block license winners would jointly submit for Commission approval 
separate narrowband relocation plans covering each region within 30 
days following the NSA Negotiation Commencement Date. If the D Block is 
licensed on a regional basis, but not all regional licenses are sold at 
auction, the Public Safety Broadband Licensee will be solely 
responsible for submitting a separate narrowband relocation plan 
covering each unsold region for Commission approval within 30 days 
following the NSA Negotiation Commencement Date. The nationwide 
narrowband relocation plan, or regional narrowband relocation plans, as 
applicable, would address the process and schedule for accomplishing 
narrowband relocation, including identification of the 700 MHz 
equipment vendor(s), the make and model numbers of the equipment to be 
relocated and the relocation cost estimates provided by such vendor(s) 
(on that vendor's letterhead), identification of equipment vendors or 
other consultants that would perform the necessary technical changes to 
handsets, vehicle repeaters, and base stations, and a detailed schedule 
for completion of the relocation process for every radio and base 
station identified in the certifications the Commission has previously 
required and for narrowband equipment operating under previously 
granted waivers.\972\ The plan(s) also would specify the total costs to 
be incurred for the complete relocation process.\973\
---------------------------------------------------------------------------

    \971\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
    \972\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
    \973\ Second Report and Order, 22 FCC Rcd at 15412 para. 340.
---------------------------------------------------------------------------

    459. If the D Block auction results in a single nationwide D Block 
license winner, that party would be required, no later than the date 
upon which the executed NSA is submitted to the Commission, to deposit 
the total cost amount identified in the narrowband relocation plan, as 
approved by the Chief of the Public Safety and Homeland Security 
Bureau, into a trust account established by the Public Safety Broadband 
Licensee, to finance the narrowband relocation.\974\ If the D Block

[[Page 57830]]

auction results in one or more regional D Block license winners, that 
party(ies) will similarly be required, no later than the date upon 
which the executed NSA is submitted to the Commission, to deposit the 
total cost amount identified in the narrowband relocation plan(s) that 
it, together with the Public Safety Broadband Licensee, submitted to 
the Commission into a trust account established by the Public Safety 
Broadband Licensee, to finance the narrowband relocation. In the event 
that the D Block is licensed on a regional basis, but not all regional 
licenses are sold at auction, the narrowband relocation costs 
associated with any such unsold region (identified in the individual 
narrowband relocation plans submitted for each such region by the 
Public Safety Broadband Licensee) will be borne on a pro rata basis by 
all the regional D Block license winners. In this latter case, the 
Commission will delegate authority to the Public Safety and Homeland 
Security Bureau to determine and identify in a public notice the amount 
each D Block regional licensee is required to deposit into the 
narrowband relocation trust account established by the Public Safety 
Broadband Licensee.
---------------------------------------------------------------------------

    \974\ Second Report and Order, 22 FCC Rcd at 15412 para. 343. As 
the Commission further indicated in the Second Report and Order, and 
which the Commission tentatively proposes to continue to follow, the 
trust account established by the Public Safety Broadband Licensee 
would be for the benefit of public safety licensees being relocated, 
with the Public Safety Broadband Licensee acting as trustee of such 
account. The Public Safety Broadband Licensee would not be permitted 
to draw on this account until the D Block license(s) is granted to 
the D Block auction winner(s), and then would be limited to using 
these funds solely for relocating eligible narrowband operations 
consistent with the requirements and limitations set forth herein. 
The Public Safety Broadband Licensee would then be responsible for 
implementing the relocation plan, including administering payment of 
relocation funds to equipment vendors, and ensuring that all 
affected licensees are relocated in accordance with the relocation 
schedule contained in the relocation plan as approved by the Chief 
of the Public Safety and Homeland Security Bureau. See id.
---------------------------------------------------------------------------

IV. Procedural Matters

A. Initial Regulatory Flexibility Analysis
    460. Section 213 of the Consolidated Appropriations Act 2000 
provides that the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, shall 
not apply to the rules and competitive bidding procedures for 
frequencies in the 746-806 MHz Band,\975\ which includes the 
frequencies of both the D Block license and the 700 MHz public safety 
broadband and narrowband spectrum. Accordingly, the Commission has not 
prepared an Initial Regulatory Flexibility Analysis in connection with 
the Third FNPRM.
---------------------------------------------------------------------------

    \975\ In particular, this exemption extends to the requirements 
imposed by Chapter 6 of Title 5, United States Code, Section 3 of 
the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of 
Title 44, United States Code. Consolidated Appropriations Act 2000, 
Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A)-
(B); see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 
note at sec. 213(a)(4)(A)-(B).
---------------------------------------------------------------------------

B. Initial Paperwork Reduction Act Analysis of 1995 Analysis
    461. This document contains proposed new or modified information 
collection requirements. The Commission notes, however, that Section 
213 of the Consolidated Appropriations Act 2000 provides that rules 
governing frequencies in the 746-806 MHz Band, which encompass the 
spectrum associated with both the D Block license and the 700 MHz 
public safety broadband and narrowband spectrum, become effective 
immediately upon publication in the Federal Register without regard to 
certain sections of the Paperwork Reduction Act.\976\ The Commission is 
therefore not inviting comment pursuant to the Paperwork Reduction Act 
on any information collections proposed in this document.
---------------------------------------------------------------------------

    \976\ Id.
---------------------------------------------------------------------------

C. Other Procedural Matters
1. Ex Parte Presentations
    462. The rulemaking shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules.\977\ 
Persons making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented generally is required.\978\ Other requirements 
pertaining to oral and written presentations are set forth in Section 
1.1206(b) of the Commission's rules.\979\
---------------------------------------------------------------------------

    \977\ 47 CFR 1.200 et seq.
    \978\ See 47 CFR 1.1206(b)(2).
    \979\ 47 CFR 1.1206(b).
---------------------------------------------------------------------------

2. Comment Filing Procedures
    463. Pursuant to Sections 1.415 and 1.419 of the Commission's 
rules,\980\ interested parties may file comments on or before the dates 
indicated on the first page of this document. All filings related to 
this Third FNPRM should refer to WT Docket No. 06-150 and PS Docket No. 
06-229. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies.\981\
---------------------------------------------------------------------------

    \980\ 47 CFR 1.415, 1.419.
    \981\ See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 Fed. Reg. 24121 (May 1, 1998).
---------------------------------------------------------------------------

    <bullet> Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the website for submitting 
comments.
    <bullet> ECFS filers must transmit one electronic copy of the 
comments for WT Docket No. 06-150 and PS Docket No. 06-229. In 
completing the transmittal screen, filers should include their full 
name, U.S. Postal Service mailing address, and WT Docket No. 06-150 and 
WT Docket No. 06-229. Parties may also submit an electronic comment by 
Internet e-mail. To get filing instructions, filers should send an e-
mail to <a href="/cdn-cgi/l/email-protection#6005030613200603034e070f16"><span class="__cf_email__" data-cfemail="37525451447751545419505841">[email protected]</span></a> and include the following words in the body of the 
message, ``get form.'' A sample form and directions will be sent in 
response.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Marlene H. Dortch, Office of 
the Secretary, Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
    464. Parties should send a copy of their filings to: Ne[scedil]e 
Guendelsberger, Wireless Telecommunications Bureau, 445 12th Street, 
SW., Washington, DC 20554, or by e-mail to <a href="/cdn-cgi/l/email-protection#2d43485e48034a5848434948415e4f485f4a485f6d4b4e4e034a425b"><span class="__cf_email__" data-cfemail="85ebe0f6e0abe2f0e0ebe1e0e9f6e7e0f7e2e0f7c5e3e6e6abe2eaf3">[email protected]</span></a>; 
and Jeff Cohen, Public Safety and Homeland Security Bureau, 445 12th 
Street, SW., Washington, DC 20554, or by e-mail to <a href="/cdn-cgi/l/email-protection#640e0102024a070b0c010a240207074a030b12"><span class="__cf_email__" data-cfemail="aec4cbc8c880cdc1c6cbc0eec8cdcd80c9c1d8">[email protected]</span></a>. 
Parties shall also serve one copy with the Commission's

[[Page 57831]]

copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, Room 
CY-B402, 445 12th Street, SW., Washington, DC 20554, (800) 378-3160, or 
via e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="096f6a6a496b6a79607e6c6b276a6664">[email protected]</a>.
    465. Comments filed in response to this notice of proposed 
rulemaking will be available for public inspection and copying during 
business hours at the FCC Reference Information Center, Portals II, 
Room CY-A257, 445 12th Street, SW., Washington, DC 20554 and via the 
Commission's Electronic Comment Filing System (ECFS) by entering the 
docket numbers WT Docket No. 06-150 and PS Docket No. 06-229. The 
documents may also be purchased from BCPI, telephone (800) 378-3160, 
facsimile (202) 488-5563, TTY (202) 488-5562, e-mail <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="b4d2d7d7f4d6d7c4ddc3d1d69ad7dbd9">[email protected]</a>.
3. Accessible Formats
    466. To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to <a href="/cdn-cgi/l/email-protection#bafcf9f98f8a8efadcd9d994ddd5cc"><span class="__cf_email__" data-cfemail="eea8adaddbdedaae888d8dc0898198">[email protected]</span></a> or call the Consumer & Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Contact the 
FCC to request reasonable accommodations for filing comments 
(accessible format documents, sign language interpreters, CARTS, etc.) 
by e-mail: <a href="/cdn-cgi/l/email-protection#4f090c0c7a7f7b0f292c2c61282039"><span class="__cf_email__" data-cfemail="b1f7f2f2848185f1d7d2d29fd6dec7">[email protected]</span></a>; phone: 202-418-0530 (voice), 202-418-0432 
(TTY).

V. Ordering Clauses

    467. Accordingly, it is ordered pursuant to sections 1, 2, 4(i), 
5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 
311, 314, 316, 319, 324, 332, 333, 336, 337, 614, 615, and 710 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
155(c), 157, 160, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 
310, 311, 314, 316, 319, 324, 332, 333, 336, and 337, that this third 
further notice of proposed rulemaking in WT Docket No. 06-150 and PS 
Docket No. 06-229 is adopted. The third further notice of proposed 
rulemaking shall become effective upon publication in the Federal 
Register.
    468. It is further ordered that pursuant to applicable procedures 
set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 CFR 
1.415, 1.419, interested parties may file comments on the third further 
notice of proposed rulemaking on or before November 3, 2008, and reply 
comments on or before November 12, 2008.
    469. It is further ordered that the Commission shall send a copy of 
this third further notice of proposed rulemaking in a report to be sent 
to Congress and the General Accounting Office pursuant to the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

List of Subjects

47 CFR Part 27

    Communications common carriers, Radio, Wireless radio services.

47 CFR Part 90

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

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 27 and 90 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. Section 27.4 is amended by revising the following definitions to 
read as follows:


Sec.  27.4  Terms and definitions.

* * * * *
    Network Sharing Agreement (NSA). An agreement entered into between 
the winning bidder of an Upper 700 MHz D Block license, the Upper 700 
MHz D Block licensee, the Network Assets Holder, the Operating Company, 
the Public Safety Broadband Licensee, and any other related entities 
that the Commission may require or allow regarding the shared wireless 
broadband network associated with that 700 MHz Public/Private 
Partnership that will operate on the 758-763 MHz and 788-793 MHz bands 
and the 763-768 MHz and 793-798 MHz bands.
* * * * *
    Upper 700 MHz D Block license. The Upper 700 MHz D Block license 
authorizes services in the 758-763 MHz and 788-793 MHz bands.
* * * * *
    3. Section 27.6 is amended by revising paragraphs (a) introductory 
text and (b)(3) to read as follows:


Sec.  27.6  Service areas.

    (a) WCS service areas include Economic Areas (EAs), Major Economic 
Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular 
markets comprising Metropolitan Statistical Areas (MSAs) and Rural 
Service Areas (RSAs), Public Safety Regions (PSRs) and a nationwide 
area. MEAs and REAGs are defined in the Table immediately following 
paragraph (a)(1) of this section. Both MEAs and REAGs are based on the 
U.S. Department of Commerce's EAs. See 60 FR 13114 (March 10, 1995). In 
addition, the Commission shall separately license Guam and the Northern 
Mariana Islands, Puerto Rico and the United States Virgin Islands, 
American Samoa, and the Gulf of Mexico, which have been assigned 
Commission-created EA numbers 173-176, respectively. PSRs are comprised 
of the fifty-five 700 MHz Regional Planning Committee regions, See 66 
FR 51669-02 (October 10, 2001) (as modified by Public Notice DA 01-
2112, Public Safety 700 MHz Band--General Use Channels: Approval of 
Changes to Regional Planning Boundaries of Connecticut and Michigan 
(rel. Sept. 10, 2001), and three additional regions. The three 
additional PSR regions cover the same areas that are covered by the EAs 
for: The Gulf of Mexico; Guam and the Northern Mariana Islands; and 
American Samoa. PSRs are defined in the table immediately following 
paragraph (b)(3)(ii) of this section. The nationwide area is comprised 
of the geographic areas covered by the 58 PSRs and covers the same area 
covered by contiguous 48 states, Alaska, Hawaii, the Gulf of Mexico, 
and all of the U.S. territories included in Commission-created EAs. 
Maps of the EAs, MEAs, MSAs, RSAs, and REAGs and the Federal Register 
notice that established the 172 EAs are available for public inspection 
and copying at the Reference Information Center, Consumer and 
Governmental Affairs Bureau, Federal Communications Commission, 445 
12th Street, SW., Washington, DC 20554. Maps of the PSRs are also 
available for public inspection and copying at the Reference 
Information Center, Consumer and Governmental Affairs Bureau, Federal 
Communications Commission, 445 12th Street, SW., Washington, DC 20554.
* * * * *
    (b) * * *
    (3) Service areas for Block D in the 758-763 MHz and 788-793 MHz 
bands will be determined based on the results of the auction for 
licenses with respect to Block D. The Commission will offer in such an 
auction licenses for the following geographic service areas:
    (i) A nationwide area as defined in paragraph (a) of this section.
    (ii) Public Safety Regions (PSRs) as defined in paragraph (a) of 
this section. The geographic boundaries of the PSRs are defined in the 
table below:

[[Page 57832]]



------------------------------------------------------------------------
                             Geographical boundaries of public safety
                                          regions (PSRS)
        PSR No.         ------------------------------------------------
                           States, counties and territories included in
                                             regions
------------------------------------------------------------------------
1......................  Alabama.
2......................  Alaska.
3......................  Arizona.
4......................  Arkansas.
5......................  California-South (to the northernmost borders
                          of San Luis Obispo, Kern, and San Bernardino
                          Counties).
6......................  California-North (that part of California not
                          included in California-South).
7......................  Colorado.
8......................  New York-Metropolitan--New York: Bronx, Kings,
                          Nassau, New York, Orange, Putnam, Queens,
                          Richmond, Rockland, Suffolk, Sullivan, Ulster,
                          Dutchess, and Westchester Counties; New
                          Jersey: Bergen, Essex, Hudson, Morris,
                          Passaic, Sussex, Union, Warren, Middlesex,
                          Somerset, Hunterdon, Mercer, and Monmouth
                          Counties.
9......................  Florida.
10.....................  Georgia.
11.....................  Hawaii.
12.....................  Idaho.
13.....................  Illinois (all except area in Region 54).
14.....................  Indiana (all except area in Region 54).
15.....................  Iowa.
16.....................  Kansas.
17.....................  Kentucky.
18.....................  Louisiana.
19.....................  New England--Maine; New Hampshire; Vermont;
                          Massachusetts; Rhode Island; Connecticut.
20.....................  Maryland; Washington, DC; Virginia--Northern
                          (Arlington, Fairfax, Fauquier, Loudoun, Prince
                          William and Stafford Counties; and Alexandria,
                          Fairfax, Falls Church, Manassas and Manassas
                          Park Cities).
21.....................  Michigan.
22.....................  Minnesota.
23.....................  Mississippi.
24.....................  Missouri.
25.....................  Montana.
26.....................  Nebraska.
27.....................  Nevada.
28.....................  New Jersey (except for counties included in the
                          New York-Metropolitan, Region 8, above);
                          Pennsylvania (Bucks, Chester, Montgomery,
                          Philadelphia, Berks, Delaware, Lehigh,
                          Northampton, Bradford, Carbon, Columbia,
                          Dauphin, Lackawanna, Lancaster, Lebanon,
                          Luzerne, Lycoming, Monroe, Montour,
                          Northumberland, Pike, Schuylkill, Sullivan,
                          Susquehanna, Tioga, Wayne, Wyoming and York
                          Counties); Delaware.
29.....................  New Mexico.
30.....................  New York--Albany (all except area in New York--
                          Metropolitan, Region 8, and New York--Buffalo,
                          Region 55).
31.....................  North Carolina.
32.....................  North Dakota.
33.....................  Ohio.
34.....................  Oklahoma.
35.....................  Oregon.
36.....................  Pennsylvania (all except area in Region 28,
                          above).
37.....................  South Carolina.
38.....................  South Dakota.
39.....................  Tennessee.
40.....................  Texas--Dallas (including the counties of Cooke,
                          Grayson, Fannin, Lamar, Red River, Bowie,
                          Wise, Denton, Collin, Hunt, Delta, Hopkins,
                          Franklin, Titus, Morris, Cass, Tarrant,
                          Dallas, Palo Pinto, Parker, Rockwall, Kaufman,
                          Rains, VanZandt, Wood, Smith, Camp, Upshur,
                          Gregg, Marion, Harrison, Panola, Rusk,
                          Cherokee, Anderson, Henderson, Navarro, Ellis,
                          Johnson, Hood, Somervell and Erath).
41.....................  Utah.
42.....................  Virginia (all except area in Region 20, above).
43.....................  Washington.
44.....................  West Virginia.
45.....................  Wisconsin (all except area in Region 54).
46.....................  Wyoming.
47.....................  Puerto Rico.
48.....................  U.S. Virgin Islands.
49.....................  Texas--Austin (including the counties of
                          Bosque, Hill, Hamilton, McLennan, Limestone,
                          Freestone, Mills, Coryell, Falls, Robertson,
                          Leon, San Saba, Lampasas, Bell, Milam, Brazos,
                          Madison, Grimes, Llano, Burnet, Williamson,
                          Burleson, Lee, Washington, Blanco, Hays,
                          Travis, Caldwell, Bastrop, and Fayette).
50.....................  Texas--El Paso (including the counties of Knox,
                          Kent, Stonewall, Haskell, Throckmorton,
                          Gaines, Dawson, Borden, Scurry, Fisher, Jones,
                          Shackelford, Stephens, Andrews, Martin,
                          Howard, Mitchell, Nolan, Taylor, Callahan,
                          Eastland, Loving, Winkler, Ector, Midland,
                          Glasscock, Sterling, Coke, Runnels, Coleman,
                          Brown, Comanche, Culberson, Reeves, Ward,
                          Crane, Upton, Reagan, Irion, Tom Green,
                          Concho, McCulloch, Jeff Davis, Hudspeth, El
                          Paso, Pecos, Crockett, Schleicher, Menard,
                          Mason, Presidio, Brewster, Terrell, Sutton,
                          and Kimble).
51.....................  Texas--Houston (including the counties of
                          Shelby, Nacogdoches, San Augustine, Sabine,
                          Houston, Trinity, Angelina, Walker, San
                          Jacinto, Polk, Tyler, Jasper, Newton,
                          Montgomery, Liberty, Hardin, Orange, Waller,
                          Harris, Chambers, Jefferson, Galveston,
                          Brazoria, Fort Bend, Austin, Colorado,
                          Wharton, and Matagorda).

[[Page 57833]]

 
52.....................  Texas--Lubbock (including the counties of
                          Dallam, Sherman, Hansford, Ochiltree,
                          Lipscomb, Hartley, Moore, Hutchinson, Roberts,
                          Hemphill, Oldham, Potter, Carson, Grey,
                          Wheeler, Deaf Smith, Randall, Armstrong,
                          Donley, Collingsworth, Parmer, Castro,
                          Swisher, Briscoe, Hall, Childress, Bailey,
                          Lamb, Hale, Floyd, Motley, Cottle, Hardeman,
                          Foard, Wilbarger, Witchita, Clay, Montague,
                          Jack, Young, Archer, Baylor, King, Dickens,
                          Crosby, Lubbock, Kockley, Cochran, Yoakum,
                          Terry, Lynn, and Garza).
53.....................  Texas--San Antonio (including the counties of
                          Val Verde, Edwards, Kerr, Gillespie, Real,
                          Bandera, Kendall, Kinney, Uvalde, Medina,
                          Bexar, Comal, Guadalupe, Gonzales, Lavaca,
                          Dewitt, Karnes, Wilson, Atascosa, Frio,
                          Zavala, Maverick, Dimmit, LaSalle, McMullen,
                          Live Oak, Bee, Goliad, Victoria, Jackson,
                          Calhoun, Refugio, Aransas, San Patricio,
                          Nueces, Jim Wells, Duval, Webb, Kleberg,
                          Kenedy, Brooks, Jim Hogg, Zapata, Starr,
                          Hidalgo, Willacy, and Cameron).
54.....................  Chicago--Metropolitan--Illinois: Winnebago,
                          McHenry, Cook, Kane, Kendall, Grundy, Boone,
                          Lake, DuPage, DeKalb, Will, and Kankakee
                          Counties; Indiana: Lake, LaPorte, Jasper,
                          Starke, St. Joseph, Porter, Newton, Pulaski,
                          Marshall, and Elkart Counties; Wisconsin:
                          Kenosha, Milwaukee, Washington, Dodge,
                          Walworth, Jefferson, Racine, Ozaukee,
                          Waukesha, Dane, and Rock Counties.
55.....................  New York--Buffalo (including the counties of
                          Niagara, Chemung, Schuyler, Seneca, Erie,
                          Chautauqua, Cattaraugus, Allegany, Wyoming,
                          Genesee, Orleans, Monroe, Livingston, Steuben,
                          Ontario, Wayne, and Yates).
56.....................  Guam and the Northern Mariana Islands.
57.....................  American Samoa.
58.....................  Gulf of Mexico.
------------------------------------------------------------------------

* * * * *
    4. Section 27.13 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  27.13  License period.

* * * * *
    (b) 698-757 MHz, 775-787 MHz and 805-806 MHz bands. Initial 
authorizations for the 698-757 MHz and 776-787 MHz bands will extend 
for a term not to exceed ten years from February 17, 2009, except that 
initial authorizations for a part 27 licensee that provides broadcast 
services, whether exclusively or in combination with other services, 
will not exceed eight years. Initial authorizations for the 775-776 MHz 
and 805-806 MHz bands shall not exceed January 1, 2015. Licensees that 
initiate the provision of a broadcast service, whether exclusively or 
in combination with other services, may not provide this service for 
more than eight years or beyond the end of the license term if no 
broadcast service had been provided, whichever period is shorter in 
length.
    (c) The paired 758-763 and 788-793 MHz bands. Initial WCS 
authorizations for the paired 758-763 MHz and 788-793 MHz bands will 
have a term not to exceed 15 years from the date of initial issuance or 
renewal.
* * * * *
    5. Section 27.14 is amended by revising paragraphs (e), (m), (n), 
and (o), redesignating paragraph (o) as paragraph (q) and adding a new 
paragraph (p), to read as follows:


Sec.  27.14  Construction requirements; Criteria for renewal.

* * * * *
    (e) Comparative renewal proceedings do not apply to WCS licensees 
holding authorizations for the 698-757 MHz and 776-787 MHz bands. These 
licensees must file a renewal application in accordance with the 
provisions set forth in Sec.  1.949 of this chapter, and must make a 
showing of substantial service, independent of its performance 
requirements, as a condition for renewal at the end of each license 
term.
* * * * *
    (m) A WCS licensee holding an authorization for the D Block in the 
758-763 MHz and 788-793 MHz bands (the Upper 700 MHz D Block licensee) 
shall meet the following construction requirements in each PSR, except 
for the Gulf of Mexico PSR, comprising its license area.
    (1) The Upper 700 MHz D Block licensee shall provide signal 
coverage and offer terrestrial service to at least 40 percent of the 
population in each PSR by the end of the fourth year, and 75 percent by 
the end of the tenth year of its license term. At the end of 15 years, 
the licensee must meet one of the following final benchmarks depending 
on the population density of the PSR:
    (i) For PSRs with a population density equal to or greater than 500 
people per square mile, the licensee will be required to provide signal 
coverage and offer terrestrial service to at least 98 percent of the 
population by the end of the fifteenth year;
    (ii) For PSRs with a population density equal to or greater than 
100 people per square mile and less than 500 people per square mile, 
the licensee will be required to provide signal coverage and offer 
terrestrial service to at least 94 percent of the population by the end 
of the fifteenth year; and
    (iii) For PSRs with a population density less than 100 people per 
square mile, the licensee will be required to provide signal coverage 
and offer terrestrial service to at least 90 percent of the population 
by the end of the fifteenth year.
    (2) The Upper 700 MHz D Block licensee may modify its population-
based construction benchmarks with the agreement of the Public Safety 
Broadband Licensee and the prior approval of the Commission, where such 
a modification would better serve to meet commercial and public safety 
needs. Such modifications must be incorporated into the Network Sharing 
Agreement.
    (3) The Upper 700 MHz D Block licensee shall meet the population 
benchmarks based using the most recent decennial U.S. Census Data 
available at the time of measurement for each PSR comprising its 
license area. The network and signal levels employed to meet these 
benchmarks must be consistent with the requirements in Sec.  27.1305.
    (4) A build-out schedule must be specified in the Network Sharing 
Agreement consistent with the requirements in this section. The build-
out schedule shall include coverage for major highways and interstates, 
as well as such additional areas that are necessary to provide coverage 
for all incorporated communities with a population in excess of 3,000, 
unless the Public Safety Broadband Licensee and the Upper 700 MHz D 
Block licensee jointly determine, in consultation with a relevant 
community, that such additional coverage will not provide significant 
public benefit. Any coverage agreed under the Network Sharing Agreement 
to extend to major highways, interstates, and incorporated communities 
with populations greater than 3,000 beyond the network coverage 
required by the population benchmarks must be completed no later than 
the end

[[Page 57834]]

of the D Block license term. To the extent that coverage of major 
highways, interstates and incorporated communities with populations in 
excess of 3,000 requires the D Block licensee to extend coverage beyond 
what is required to meet its population benchmarks, the licensee shall 
be permitted to meet that additional coverage through non-terrestrial 
means, such as Mobile Satellite Service or other such technologies.
    (n) The Upper 700 MHz D Block licensee holding an authorization for 
the Gulf of Mexico PSR shall negotiate with the Public Safety Broadband 
Licensee, as part of the Network Sharing Agreement, a coverage and 
service plan for public safety use in that region. Any disputes shall 
be resolved by the Commission pursuant to the dispute resolution 
procedures.
    (o) The Upper 700 MHz D Block licensee shall demonstrate compliance 
with performance requirements by filing a construction notification 
with the Commission within 15 days of the expiration of the applicable 
benchmark, in accordance with the provisions set forth in Sec.  
1.946(d) of this chapter. The licensee must certify whether it has met 
the applicable performance requirement and must file a description and 
certification of the areas for which it is providing service. The 
construction notifications must include the following:
    (1) Certifications of the areas that were scheduled for 
construction and service by that date under the Network Sharing 
Agreement for which it is providing service, the type of applications 
it is providing for each area, and the type of technology it is 
utilizing to provide these applications.
    (2) Electronic coverage maps and supporting technical documentation 
providing the assumptions used by the licensee to create the coverage 
maps, including the propagation model and the signal strength necessary 
to provide service.
    (p) At the end of its license term, the Upper 700 MHz D Block 
licensee must, in order to renew its license, make a showing of its 
success in meeting the material requirements set forth in the Network 
Sharing Agreement as well as all other license conditions, including 
the performance benchmark requirements set forth in this section.
* * * * *
    6. Section 27.501 is revised to read as follows:


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

    (a) Mutually exclusive applications for initial licenses in the 
746-763 MHz, 775-793 MHz, and 805-806 MHz bands are subject to 
competitive bidding. The general competitive bidding procedures set 
forth in part 1, subpart Q of this chapter will apply unless otherwise 
provided in this subpart.
    (b) Competitive bidding rules for licenses in Block D in the 758-
763 MHz and 788-793 MHz bands.
    (1) Applications for licenses in the 758-763 MHz and 788-793 MHz 
bands are mutually exclusive if the licenses provide for use of 
different broadband platform technologies;
    (2) For an auction of licenses in the 758-763 MHz and 788-793 MHz 
bands covering the entire nation, no licenses will be assigned based on 
the results of an auction unless at the close of bidding in such 
auction there are provisionally winning bids for licenses that cover at 
least fifty percent (50%) of the nation's population, as determined 
consistent with the Commission's pre-auction announcement of the 
population for which each license will authorize service;
    (3) Notwithstanding any provision of Sec.  1.2104(g)(2)(ii), 
whether or not combinatorial bidding is available in the auction, the 
percentage for the additional payment portion of any applicable default 
payment pursuant to Sec.  1.2104(g)(2) will equal between 3 and 20 
percent of the applicable bid, according to a percentage (or 
percentages) established by the Commission in advance of the auction;
    (4) Notwithstanding any provision of Sec.  1.2108, the Commission 
may defer the resolution of any petition to deny an application for any 
licenses in the 758-763 MHz and 788-793 MHz bands until the applicant, 
the Public Safety Broadband Licensee, and any other party the 
Commission may require or allow execute a Commission-approved NSA and 
such other agreements as the Commission may require or allow, and
    (5) Notwithstanding any provisions of Sec.  1.2109(b) or (c), 
whether or not combinatorial bidding is available in the auction, if 
the Commission for any reason does not assign a license to the 
applicant holding the winning bid for that license at the close of the 
auction, the Commission may, at its discretion, offer the same license 
to another party making the next highest bid for that license.
    7. Section 27.502 is amended by revising the introductory text and 
adding paragraph (c) to read as follows:


Sec.  27.502  Designated entities.

    Eligibility for small business provisions:
* * * * *
    (c) The spectrum capacity of any Upper 700 MHz D Block license that 
is subject to any arrangements for the lease or resale (including under 
a wholesale agreement) of spectrum capacity shall not be considered 
when applying the provisions of Sec.  1.2110(b)(1)(iv)(A) of this 
chapter.
    7A. Section 27.1303 is amended by revising paragraph (e) to read as 
follows:


Sec.  27.1303  Upper 700 MHz D Block license conditions.

* * * * *
    (e) The Upper 700 MHz D Block licensee must provide the Public 
Safety Broadband Licensee with priority access during emergencies, as 
specified in Sec.  27.1317(e).
* * * * *
    7B. Section 27.1305 is revised to read as follows:


Sec.  27.1305  Shared wireless broadband network.

    The Shared Wireless Broadband Network developed by the 700 MHz 
Public/Private Partnership must be designed to meet requirements 
associated with an interoperable, nationwide public safety broadband 
network as specified in this section. All specified mandatory 
requirements as defined in this section must be incorporated in the 
Network Sharing Agreement, and shall be used in the determination of 
compliance under Sec.  27.14(p). The Public Safety Broadband Licensee 
and the Upper 700 MHz D Block licensee may add any capabilities or 
features beyond those in these rules based on mutually agreeable terms 
under the Network Sharing Agreement. The Shared Wireless Broadband 
Network shall incorporate the following:
    (a) A design for public safety operations over a broadband IP-based 
technology platform that utilizes standardized commercial technology; 
provides fixed and mobile voice, video, and data capability that is 
interoperable across public safety local and state agencies, 
jurisdictions, and geographic areas; and includes current and evolving 
state-of-the-art technologies reasonably made available in the 
commercial marketplace with features beneficial to the public safety 
community.
    (1) Such a design shall provide a nationwide common radio access 
network air interface to enable the Shared Wireless Broadband Network 
to support nationwide level interoperability. The common air interface 
shall allow migration to future

[[Page 57835]]

technology upgrades. In the case of regional Upper 700 MHz D Block 
licensees, the common radio access network air interface will be 
determined via the auction process and each regional Upper 700 MHz D 
Block licensee will be required to enter into arrangements both with 
other regional Upper 700 MHz D Block licensees and with the Public 
Safety Broadband Licensee as necessary to ensure interoperability 
between their networks. Such arrangements must provide, at a minimum, 
that each regional Upper 700 MHz D Block licensee will provide the 
ability to roam on its network to public safety users of all other 
Shared Wireless Broadband Networks. Regional Upper 700 MHz D Block 
licensees are not permitted to assess special roaming charges (over and 
above service fees charged for in-region use) in cases where public 
safety users require roaming for mutual aid or emergencies.
    (2) The technology selected for the Shared Wireless Broadband 
Network shall be permitted to evolve based on commercial wireless 
upgrade timeframes, except that future upgrades shall include user 
equipment backward compatibility, as supported by commercial product 
availability and specified in the technology standards, to allow for 
commercially reasonable transition periods for public safety entities' 
user equipment. The notification and impact management processes 
relating to technology upgrades, and migration to such upgrades, shall 
be defined and agreed to in the Network Sharing Agreement.
    (3) To promote interoperability between the Shared Wireless 
Broadband Network and voice-based public safety networks in other 
frequency bands, the Upper 700 MHz D Block licensee will publish IP-
based specifications describing how such other public safety networks 
may access the Upper 700 MHz D Block licensee's Shared Wireless 
Broadband Network via bridges and/or gateways. The Upper 700 MHz D 
Block licensee shall charge these other public safety networks for such 
access no more than the relevant fee established or approved by the 
Commission. Public safety users shall bear the costs of the bridges and 
gateways, including installation and maintenance costs.
    (4) The Shared Wireless Broadband Network shall support a Voice 
over Internet Protocol (VoIP) capability to complement existing public 
safety mission critical voice communication systems. The VoIP 
capability shall allow interconnection with the Public Switched 
Telephone Network as well as with other public safety VoIP users on the 
network. VoIP features will include but not be limited to Push-To-Talk.
    (b) Availability, robustness, and hardening requirements as 
follows:
    (1) The Shared Wireless Broadband Network shall provide 99.6 
percent network availability for all terrestrial elements of operation 
in the coverage areas certified pursuant to Sec.  27.14(o)(1), 
calculated over each license area annually, starting four years after 
license issuance. The Upper 700 MHz D Block licensee shall use 
commercially reasonable efforts to provide network availability above 
this requirement, with the target of 99.9 percent network availability.
    (2) The method for measuring availability shall be defined in the 
Network Sharing Agreement, which shall:
    (i) Be a measure of infrastructure availability as measured from 
the cell site radio antenna through and across the core network;
    (ii) Exclude radio signal coverage and scheduled maintenance 
downtime with prior notice to the Public Safety Broadband Licensee;
    (iii) Exclude outages caused by actions or events outside the 
reasonable control of the Upper 700 MHz D Block licensee; and
    (iv) Exclude outages only affecting limited applications.
    (3) The Shared Wireless Broadband Network design specifications 
shall include commercial best practices, such as Network Reliability 
and Interoperability Council best practices, that take into 
consideration local influencing factors such as weather, geology, and 
building codes on network attributes such as hardening of transmission 
facilities and antenna towers, extended backup power, seismic safety 
standards, and accommodations for wind, ice, and other natural 
phenomenon.
    (4) The Upper 700 MHz D Block licensee and the Public Safety 
Broadband Licensee, in consultation with the relevant community, shall 
jointly designate ``critical'' sites. The designation of sites as 
``critical'' shall not be required to cover more than 35 percent of the 
Shared Wireless Broadband Network sites for the Upper 700 MHz D Block 
license; however, the Upper 700 MHz D Block licensee shall use 
commercially reasonable efforts to designate as ``critical'' additional 
sites requested by the Public Safety Broadband Licensee, up to 50 
percent of all the licensee's sites. Sites designated as ``critical'' 
shall have battery backup power of 8 hours, and shall have generators 
with a fuel supply sufficient to operate the generators for at least 48 
hours. The Upper 700 MHz D Block licensee shall make commercially 
reasonable efforts to provide a fuel supply at ``critical'' sites above 
this requirement sufficient for a minimum of 5 days. The Upper 700 MHz 
D Block licensee and the Public Safety Broadband Licensee, in 
consultation with the relevant community, shall jointly determine the 
sites that will require redundant backhaul in order to comply with the 
network availability requirements in this section.
    (5) The Upper 700 MHz D Block Licensee and the Public Safety 
Broadband Licensee may agree on other methods to improve network 
resiliency in lieu of designating ``critical'' cell sites as described 
in paragraph (b)(4) of this section. These may include deployment of 
mobile assets or the use of satellite facilities.
    (c) A capability incorporated into the Shared Wireless Broadband 
Network infrastructure to provide monthly usage reports covering 
network capacity and priority access so that the Public Safety 
Broadband Licensee can monitor usage and provide appropriate feedback 
to the Upper 700 MHz D Block licensee on operational elements of the 
network.
    (d) Security and encryption consistent with commercial best 
practices. For purposes of complying with this paragraph, the Upper 700 
MHz D Block licensee shall:
    (1) Comply with U.S. government standards, guidelines, and models 
that are commercial best practices for wireless broadband networks.
    (2) Implement controls to ensure that public safety priority and 
secure network access are limited to authorized public safety users and 
devices, and utilize an open standard protocol for authentication.
    (3) Allow for public safety network authentication, authorization, 
automatic logoff, transmission secrecy and integrity, audit control 
capabilities, and other unique attributes.
    (e) A mechanism to ensure Quality of Service (QoS) for public 
safety and to establish various levels of priority for public safety 
communications. The Upper 700 MHz D Block licensee shall not be 
obligated to implement this provision before appropriate standards are 
developed and appropriate hardware and software are available on 
commercially reasonable terms. The Upper 700 MHz D Block Licensee and 
the Public Safety Broadband Licensee shall use reasonable efforts to 
work with applicable standards organizations, network equipment 
manufacturers, and other suppliers to accelerate the commercially 
reasonable availability of these features for the Shared Wireless

[[Page 57836]]

Broadband Network. The Public Safety Broadband Licensee shall have 
authority to establish access priority and service levels, and 
authenticate and authorize public safety users. In addition, the 
following provisions for QoS shall be incorporated into the operational 
capabilities of the Shared Wireless Broadband Network.
    (1) Priority shall be defined as Public Safety Broadband Licensee-
approved user or class of users, network, application, and services 
priorities that, via user or class of users or device identification, 
or both, offer the highest assignable levels of priority for network 
access and use of network resources, services, and applications.
    (2) The Shared Wireless Broadband Network shall provide emergency 
priority access pursuant to Sec.  27.1307(e).
    (3) The Shared Wireless Broadband Network shall provide an 
appropriate priority to 9-1-1 calls.
    (4) QoS resource reservation and session control mechanisms shall 
be incorporated into the operational capabilities of the Shared 
Wireless Broadband Network.
    (5) QoS shall be considered to be the full class of mechanisms that 
are found at multiple IP layers in the network (both radio access 
network and core), and that provision and apply priority for IP packet 
based traffic.
    (6) The assignment of network resources shall enable user or 
service priority, or both, in addition to the QoS requirements of the 
application.
    (7) The Shared Wireless Broadband Network shall support multiple IP 
data services and application session flows between a user device and 
network, where each flow may have a different QoS requirement and 
priority level.
    (8) If network resources are not available to meet a resource 
reservation request, the Shared Wireless Broadband Network shall have 
the ability to provide a new QoS consistent with the limited network 
resources.
    (f) Operational capabilities to support public safety systems as 
specified below:
    (1) The Shared Wireless Broadband Network shall provide access for 
all applications and services, hosted applications and services, and 
third party public safety applications and services specified in the 
Network Sharing Agreement. The Public Safety Broadband Licensee shall 
give consideration of particular applications to the overall impact on 
overall system performance.
    (2) The Shared Wireless Broadband Network shall provide for the 
application data rates shown in Table 1.
    (3) The Shared Wireless Broadband Network shall be designed to 
provide edge of cell data rates shown in Table 2. Typical data rates 
should be designed for at least 1 Mbs downlink and 600 kbps uplink. The 
data link speeds for public safety users must be at least as fast as 
the best data speeds provided to commercial users of the Shared 
Wireless Broadband Network.
    (4) The Shared Wireless Broadband Network must provide indoor 
coverage for VoIP consistent with the propagation parameters shown in 
Table 3.
    (5) For purposes of these Tables 2 and 3, the following definitions 
apply in terms of population per square mile: Dense urban: 15,000 
people or greater; urban 2,500-14,999; suburban 200-2499; and rural 0-
199.
    (6) The data rates in this section are design objectives and are 
not to be applied for a particular device, time or location.
    (7) Signal coverage, propagation, and capacity parameters in Table 
2 and 3 shall be reviewed by the Upper 700 MHz D Block licensee and the 
Public Safety Broadband Licensee no less than every four years to 
assess the impact of benefits from technology evolution and general 
improvement in network coverage consistent with paragraph (a)(2) of 
this section.

   Table 1 to Sec.   27.1305--Applications and Services QoS Attributes
------------------------------------------------------------------------
      Application/service             Description           Data rate
------------------------------------------------------------------------
File transfer.................  FTP and general data    Greater than
                                 upload/download.        256kb/s.
E-mail........................  Both Web based and      Less than 16kb/
                                 Entity Hosted E-Mail    s.
                                 Service.
Web browsing..................  Intranet, extranet,     Greater than
                                 and internet.           32kb/s.
Mobile voice..................  Equivalent to current   Minimum 15 kb/s.
                                 commercial mobile
                                 voice.
Push to talk (PTT) voice......  Commercial grade PTT/   4-25 kb/s.
                                 PoC offerings with
                                 group call, alerting,
                                 and monitoring
                                 capability.
Indoor video..................  Video that is           20-384 kb/sF.
                                 transmitted from
                                 inside a building.
Outdoor video.................  Video that is           32-384 kb/s.
                                 transmitted from the
                                 street.
Location services.............  All location based      Less than 16kb/
                                 services.               s.
Database transactions.........  Remote databases        Less than 32kb/
                                 access both under the   s.
                                 entities' direct
                                 control as well as
                                 databases that are
                                 local.
Messaging.....................  Instant messaging,      Less than 16kb/
                                 SMS, and Push to X      s.
                                 services.
Network Operations data.......  Network operational     Less than 32kb/
                                 and maintenance data    s.
                                 including over the
                                 air programming and
                                 remote client
                                 management.
Dispatch data.................  Data as it relates to   Less than 64kb/
                                 computer aided          s.
                                 dispatching.
Generic traffic...............  General category for    Less than 64kb/
                                 traffic that does not   s.
                                 fall within any of
                                 the categories
                                 described above, and
                                 that generates less
                                 than 64kb of data per
                                 second.
Telemetry.....................  Remote measurement and  70-120 kb/s.
                                 reporting of
                                 information for radio
                                 devices, vehicles,
                                 and sensor data.
Virtual Private Networking....  Secure remote access    64-256 kb/s.
                                 to entity LAN and WAN
                                 environments.
------------------------------------------------------------------------


[[Page 57837]]


                       Table 2 to Sec.   27.1305--Data Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
                                                                                          Forward      Reverse
                                                                                            link         link
                                                                  Cell                   throughput   throughput
                                                                coverage      Sector     on-street    on-street
                         Morphology                               area       loading    single user  single user
                                                              reliability   factor (%)    average      average
                                                                  (%)                    cell-edge    cell-edge
                                                                                           (kbps)       (kbps)
----------------------------------------------------------------------------------------------------------------
Dense Urban.................................................           95           70          256          256
Urban.......................................................           95           70          256          256
Suburban....................................................           95           70          128          128
Rural.......................................................           95           70          128          128
Highway.....................................................           95           70           64           64
----------------------------------------------------------------------------------------------------------------


                      Table 3 to Sec.   27.1305--Voice Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
                                                            In-building       Cell coverage
                       Morphology                           penetration      area reliability    Sector loading
                                                            margin (dB)            (%)             factor (%)
----------------------------------------------------------------------------------------------------------------
Dense Urban............................................                 22                 95                 70
Urban..................................................                 19                 95                 70
Suburban...............................................                 13                 95                 70
Rural..................................................                  6                 95                 70
Highway................................................                  6                 95                 70
----------------------------------------------------------------------------------------------------------------

    7C. Section 27.1307 is amended by revising paragraph (d) and adding 
paragraph (e) to read as follows:


Sec.  27.1307  Spectrum use in the network.

* * * * *
    (d) The Upper 700 MHz D Block licensee may construct and operate 
the Shared Wireless Broadband Network using both the 758-763 MHz and 
788-793 MHz bands as well as the 763-768 MHz and 793-798 MHz bands as a 
combined resource. If the Upper 700 MHz D Block licensee chooses to 
operate the spectrum as a combined resource, however, 50 percent of the 
capacity available from the combined 20 megahertz of spectrum must be 
assigned to public safety users and the other 50 percent must be 
assigned to the commercial users, consistent with the respective 
capacity and priority rights of the Upper 700 MHz D Block license and 
the Public Safety Broadband License and with rules in this part.
    (e) Emergency Priority Access. (1) The Upper 700 MHz D Block 
licensee must provide public safety users priority access to, but not 
preemptive use of, up to 40 percent of the commercial spectrum capacity 
(two megahertz in each of the uplink and downlink blocks), assuming the 
full public safety broadband block spectrum capacity is being used, for 
an aggregate total of 14 megahertz of overall network capacity in the 
following circumstances:
    (i) The President or a state governor declares a state of 
emergency.
    (ii) The President or a state governor issues an evacuation order 
impacting areas of significant scope.
    (iii) The national or airline sector threat level is set to red.
    (2) The D Block licensee must provide priority access to, but not 
preemptive use of, up to 20 percent of the commercial spectrum capacity 
(one megahertz in each of the uplink and downlink blocks) in the 
following circumstances:
    (i) The National Weather Service issues a hurricane or flood 
warning likely to impact a significant area.
    (ii) The occurrence of other major natural disasters, such as 
tornado strikes, tsunamis, earthquakes, or pandemics.
    (iii) The occurrence of manmade disasters or acts of terrorism of a 
substantial nature.
    (iv) The occurrence of power outages of significant duration and 
scope.
    (v) The national threat level is set to orange.
    (3) The Upper 700 MHz D Block licensee must assign the next 
available channel to the requesting public safety user over a 
commercial user--i.e., the public safety user would be placed at the 
top of the queue--and should not preempt a commercial call in progress. 
Emergency priority access is limited to the time and geographic scope 
of the emergency.
    (4) To trigger emergency priority access, the Public Safety 
Broadband Licensee must request, on behalf of the impacted public 
safety agencies, that the Upper 700 MHz D Block licensee provide such 
access. Emergency priority access requests initiated by the Public 
Safety Broadband Licensee will cover a 24-hour time period, and must be 
reinitiated by the Public Safety Broadband Licensee for each 24-hour 
time period thereafter that the priority access is required.
    (5) In the event that the Upper 700 MHz D Block licensee and the 
Public Safety Broadband Licensee do not agree that an emergency has 
taken place, the Public Safety Broadband Licensee may request the 
Defense Commissioner to resolve the dispute.
    8. Section 27.1310 is amended by revising paragraphs (c), (d), (f), 
(g), and (j), and adding paragraphs (k) through (n), to read as 
follows:


Sec.  27.1310  Network sharing agreement.

* * * * *
    (c) The definition of ``emergency'' for purposes of emergency 
priority access, as described in Sec.  27.1307(e).
    (d) All service fees to be imposed for services to public safety, 
including fees for normal network service, interconnected service, and 
fees for priority access to the D Block spectrum in an emergency.
* * * * *
    (f) The right of the Public Safety Broadband Licensee to determine 
and approve the specifications of public safety equipment used on the 
network and the right to purchase its own subscriber equipment from any 
vendor it chooses, to the extent such specifications and equipment are

[[Page 57838]]

consistent with reasonable network management requirements.
    (g) The terms, conditions, and timeframes pursuant to which the 
Upper 700 MHz D Block licensee must make available at least one handset 
suitable for public safety use that includes an integrated satellite 
solution.
* * * * *
    (j) To the extent that interoperability arrangements between the 
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee 
are required under Sec.  27.1305(a)(1), the terms and conditions of the 
arrangement, including the terms and conditions under which roaming 
will be provided to public safety users of other Shared Wireless 
Broadband Networks.
    (k) The terms of a standard agreement under which public safety 
networks operating in other frequency bands may connect to the Shared 
Wireless Broadband Network pursuant to and in accordance with Sec.  
27.1305(a)(1).
    (l) Terms regarding the establishment of access priorities, service 
levels and related requirements, and approval of public safety 
applications and end user devices, by the Public Safety Broadband 
Licensee.
    (m) A process for forecasting demand for public safety usage.
    (n) A contract term, not to exceed a 15 year period that coincides 
with the terms of the Upper 700 MHz D Block license and the Public 
Safety Broadband License.
    8A. Section 27.1315 is amended by revising paragraphs (a), (b), 
(c), (f)(4), and (g) to read as follows:


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

* * * * *
    (a) Approval of NSA as pre-condition for granting the Upper 700 MHz 
D Block License. The Commission shall not grant an Upper 700 MHz D 
Block license until the winning bidder for the subject Upper 700 MHz D 
Block license has negotiated an NSA and such other agreements as the 
Commission may require or allow with the Public Safety Broadband 
Licensee, and the NSA and related agreements, or documents have been 
approved by the Commission and executed by the required parties. 
Parties to the NSA must also include the Upper 700 MHz D Block 
licensee, a Network Assets Holder, and an Operating Company, as these 
entities are defined in Sec.  27.4.
    (b) Requirement of negotiation. Negotiation of an NSA between a 
winning bidder for an Upper 700 MHz D Block license and the Public 
Safety Broadband Licensee must commence by the date the winning bidder 
files its long form application or the date on which the Commission 
designates the Public Safety Broadband Licensee, whichever is later, 
and must conclude within six months of that date. Parties to this 
negotiation are required to negotiate in good faith. Two members of the 
Commission staff, one from the Wireless Telecommunications Bureau and 
one from the Public Safety and Homeland Security Bureau, shall be 
present at all stages of the negotiation as neutral observers.
    (c) Reporting requirements. A winning bidder for the Upper 700 MHz 
D Block license must file a report with the Commission within 10 
business days of the commencement of the negotiation period certifying 
that active and good faith negotiations have begun, providing the date 
on which they commenced, and providing a schedule of the initial dates 
on which the parties intend to meet for active negotiations, covering 
at a minimum the first 30-day period. Beginning three months from the 
triggering of the six-month negotiation period, the winning bidder for 
a Upper 700 MHz D Block license and the Public Safety Broadband 
Licensee must jointly provide detailed reports, on a monthly basis and 
subject to a request for confidential treatment, on the progress of the 
negotiations throughout the remainder of the negotiations. These 
reports must include descriptions of all material issues that the 
parties have yet to resolve.
* * * * *
    (f) * * *
    (4) Determining that no resolution of the disputed issues can be 
made consistent with the public interest.
    (g) Lack of a Commission-approved NSA and such other agreements as 
the Commission may require or allow. If a winning bidder chooses not to 
execute a Commission-approved NSA or such other agreements as the 
Commission may require or allow within 10 business days of Commission 
approval, the winning bidder's long-form application will be dismissed, 
the winning bidder will be deemed to have defaulted under Sec.  
1.2109(c) of this chapter, and the winning bidder will be liable for 
the default payment specified in Sec.  1.2104(g)(2) of this chapter and 
Sec.  27.501(b)(3). In all other circumstances in which the parties do 
not submit executed copies of a Commission-approved NSA and such other 
agreements within the time permitted by this section, and the 
Commission does not dismiss the winning bidder's long-form application 
for reasons other than the lack of a Commission-approved NSA, the 
winning bidder's long-form application will be dismissed and any 
payments made toward the winning bid will be returned to the payor(s) 
of record.
    8B. Section 27.1330 is amended by revising paragraph (b) 
introductory text and (b)(4) to read as follows:


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

* * * * *
    (b) Rights to early build-out in areas with a build-out commitment. 
In an area where the Upper 700 MHz D Block licensee has committed, in 
the NSA, to build out by a certain date, a public safety entity may, 
with the pre-approval of the Public Safety Broadband Licensee and the 
Upper 700 MHz D Block licensee, and subject to the requirements set 
forth herein, construct a broadband network in that area at its own 
expense so long as the network is capable of operating on the Shared 
Wireless Broadband Network and meets all the requirements and 
specifications of the network required under the NSA.
* * * * *
    (4) Attribution of early build-out to applicable construction 
benchmarks. Upon completion of construction, transfer of ownership to 
the Upper 700 MHz D Block licensee, and compensation as required 
herein, if applicable, the Upper 700 MHz D Block licensee may include 
the network constructed pursuant to the early build-out provisions 
herein for purposes of determining whether it has met its build-out 
benchmarks and the build-out requirements of the NSA.
* * * * *
    9. Section 27.1340 is amended by adding paragraph (c) to read as 
follows:


Sec.  27.1340  Reporting obligations.

* * * * *
    (c) The Upper 700 MHz D Block licensee must provide regular monthly 
reports on network usage to the Public Safety Broadband Licensee.

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

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

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

    11. Section 90.7 is amended by revising the following definitions 
to read as follows:


Sec.  90.7  Definitions.

* * * * *

[[Page 57839]]

    Network Sharing Agreement (NSA). An agreement entered into between 
the winning bidder of an Upper 700 MHz D Block license, the Upper 700 
MHz D Block licensee, the Network Assets Holder, the Operating Company, 
the Public Safety Broadband Licensee, and any other related entities 
that the Commission may require or allow regarding the shared wireless 
broadband network associated with that 700 MHz Public/Private 
Partnership that will operate on the 758-763 MHz and 788-793 MHz bands 
and the 763-768 MHz and 793-798 MHz bands.
* * * * *
    Upper 700 MHz D Block license. The Upper 700 MHz D Block license 
authorizes services in the 758-763 MHz and 788-793 MHz bands.
* * * * *
    12. Section 90.18 is revised to read as follows:


Sec.  90.18  Public Safety 700 MHz Nationwide Broadband Network.

    The 763-768/793-798 MHz band is dedicated to a broadband public 
safety communications system with a nationwide level of 
interoperability. A nationwide license for this spectrum is held by a 
single entity, the Public Safety Broadband Licensee, which must enter 
into the 700 MHz Public/Private Partnership with the Upper 700 MHz D 
Block licensee, pursuant to a Network Sharing Agreement and such other 
agreements as the Commission may require. The specific provisions 
relating to the 700 MHz Public/Private Partnership are set forth in 
subpart AA of this part and subpart N of part 27. The Public Safety 700 
MHz Nationwide Broadband Network is established in PS Docket No. 06-
229.
    13. Section 90.523 is revised to read as follows:


Sec.  90.523  Eligibility.

    This section implements the definition of public safety services 
contained in 47 U.S.C. 337(f)(1).
    (a) Public Safety Narrowband Spectrum Eligibility Criteria. The 
eligibility criteria to hold Commission authorizations to deploy and 
operate systems in the 769-775 MHz and 799-805 MHz (public safety 
narrowband) frequency bands are as follows:
    (1) Public Safety Services. Authorizations to deploy and operate 
systems in the 769-775 MHz and 799-805 MHz frequency bands are limited 
to services the sole or principal use of which is to protect the safety 
of life, health, or property, and which are not made commercially 
available to the public by the license holder. Public Safety Services 
may be provided either by:
    (i) State or Local Government Entities, including any territory, 
possession, state, city, county, town, or similar State or local 
governmental entity, or
    (ii) Nongovernmental Organizations (NGO) that are authorized by a 
state or local government entity whose primary mission is the provision 
of Public Safety Services, provided that the NGO:
    (A) Has the ongoing authorization of a state or local governmental 
entity whose mission is the provision of Public Safety Services;
    (B) Operates such authorized system consistent with the limitations 
in paragraph (a)(1) of this section; and
    (C) Submits with its applications a written certification of 
support by the state or local governmental entity referenced in 
paragraph (a)(1)(ii)(A) of this section.
    (2) NGOs assume all risks associated with operating under the 
conditions specified in paragraph (a)(1)(ii) of this section. 
Authorizations issued to NGOs to operate systems in the 769-775 MHz and 
799-805 MHz frequency bands include the following condition: If at any 
time the authorizing governmental entity notifies the Commission in 
writing of such governmental entity's termination of its authorization 
of a NGO's operation of a system in the 769-775 MHz and 799-805 MHz 
frequency bands, the NGO's authorization shall terminate automatically.
    (b) Public Safety Broadband Spectrum Use Eligibility Criteria. Only 
entities that meet the public safety narrowband spectrum eligibility 
criteria in paragraph (a) of this section, shall be eligible to access 
the Shared Wireless Broadband Network, operating in the 763-768 MHz and 
793-798 MHz (public safety broadband) frequency bands, under the 
authorization of the Public Safety Broadband Licensee, in accordance 
with the terms of the Network Sharing Agreement governing the use of 
this network.
    (c) Public Safety Broadband License Eligibility Criteria. The 
minimum eligibility requirements to hold the Public Safety Broadband 
License covering the 763-768 MHz and 793-798 MHz public safety 
broadband frequency bands are as follows:
    (1) No commercial interest may be held in the Public Safety 
Broadband Licensee, and no commercial interest may participate in the 
management of the Public Safety Broadband Licensee.
    (2) The Public Safety Broadband Licensee must be a non-profit 
organization.
    (3) The Public Safety Broadband Licensee must be as broadly 
representative of the public safety radio user community as possible.
    (4) The Public Safety Broadband Licensee must be in receipt of 
written certifications from no less than ten geographically diverse 
state and local governmental entities (the authorizing entities), with 
at least one certification from a state government entity and one from 
a local government entity, verifying that:
    (i) They have authorized the Public Safety Broadband Licensee to 
use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing 
entities with public safety services; and
    (ii) The authorizing entities' primary mission is the provision of 
public safety services.
    (5) The sole or principal purpose of the services provided under 
the Public Safety Broadband Licensee's authorization must be to protect 
the safety of life, health, or property. These services must comply 
with the terms of the Network Sharing Agreement(s) and must not be made 
commercially available to the public.
    14. Section 90.528 is amended by revising paragraph (d) and adding 
new paragraphs (h) and (i) to read as follows:


Sec.  90.528  Public safety broadband license.

* * * * *
    (d) The term of the Public Safety Broadband License shall not 
exceed fifteen years from the date upon which the first D Block license 
is granted. The Public Safety Broadband Licensee is entitled to a 
renewal expectancy barring violations of law, rules or policy 
warranting denial of renewal.
* * * * *
    (h) Annual Budgeting Process. The Public Safety Broadband Licensee 
shall establish an audited annual budgeting process, conducted by an 
external, independent auditor. Such audited budget shall be submitted 
to the Commission and presented at an open meeting of the Board of 
Directors. The Chief, Public Safety and Homeland Security Bureau, may 
request an audit of the Public Safety Broadband Licensee's expenses at 
any time.
    (i) Proposed Annual Budget. As part of its annual budgeting 
process, the Public Safety Broadband Licensee shall submit for approval 
to the Chief, Public Safety and Homeland Security Bureau, and Chief, 
Wireless Telecommunications Bureau its proposed budget for each such 
upcoming fiscal year.
    15. Section 90.1403 is amended by revising paragraphs (a) and 
(b)(1),(2),(3),(5),(8) and (9) and by adding paragraph (b)(10) to read 
as follows:

[[Page 57840]]

Sec.  90.1403  Public safety broadband license conditions.

    (a) The Public Safety Broadband Licensee shall comply with all of 
the applicable requirements set forth in this subpart and shall comply 
with the terms of the Network Sharing Agreement(s) and such other 
agreements as the Commission may require or allow.
    (b) * * *
    (1) Negotiation of the NSA and such other agreements as the 
Commission may require or allow with the winning bidder at auction for 
a Upper 700 MHz Band D Block license, pursuant to the requirements set 
forth in Sec.  90.1410.
    (2) General administration of access to the 763-768 MHz and 793-798 
MHz bands by individual public safety entities, as facilitated through 
the establishment of priority access, service levels and related 
requirements within the NSA process, approving public safety 
applications and end user devices, and related frequency coordination 
duties.
    (3) Regular interaction with and promotion of the needs of the 
public safety entities with respect to access and use of the 763-768 
MHz and 793-798 MHz bands, within the technical and operational 
confines of the governing NSA.
* * * * *
    (5) Sole authority, which cannot be waived in the NSA(s), to 
approve, in consultation with the Upper 700 MHz D Block licensee, 
equipment and applications for use by public safety entities on the 
public safety broadband network. State or local entities may seek 
review of a decision by the Public Safety Broadband Licensee not to 
permit certain equipment or applications, or particular specifications 
for equipment or applications, from the Chief, Public Safety and 
Homeland Security Bureau.
* * * * *
    (8) Exercise of sole discretion, pursuant to Sec.  2.103 of this 
chapter, whether to permit Federal public safety agency use of the 
public safety broadband spectrum, with any such use subject to the 
terms and conditions of the governing NSA.
    (9) Review of requests for early construction and operation of 
local public safety broadband networks on the 700 MHz public safety 
broadband spectrum in areas with and without a preexisting build-out 
commitment in the applicable NSA, pursuant to the procedures and 
requirements outlined for such waivers as described in Sec.  90.1430.
    (10) Review of requests for waiver submitted by public safety 
entities to conduct wideband operations pursuant to the procedures and 
restrictions in connection with such waivers as described in Sec.  
90.1432.
    16. Section 90.1405 is revised to read as follows:


Sec.  90.1405  Shared wireless broadband network.

    The Shared Wireless Broadband Network developed by the 700 MHz 
Public/Private Partnership must be designed to meet requirements 
associated with an interoperable, nationwide public safety broadband 
network as specified in this section. All specified mandatory 
requirements as defined in this section must be incorporated in the 
Network Sharing Agreement, and shall be used in the determination of 
compliance under Sec.  27.14(p) of this chapter. The Public Safety 
Broadband Licensee and the Upper 700 MHz D Block licensee may add any 
capabilities or features beyond those in these rules based on mutually 
agreeable terms under the Network Sharing Agreement. The Shared 
Wireless Broadband Network shall incorporate the following:
    (a) A design for public safety operations over a broadband IP-based 
technology platform that utilizes standardized commercial technology; 
provides fixed and mobile voice, video, and data capability that is 
interoperable across public safety local and state agencies, 
jurisdictions, and geographic areas; and includes current and evolving 
state-of-the-art technologies reasonably made available in the 
commercial marketplace with features beneficial to the public safety 
community.
    (1) Such a design shall provide a nationwide common radio access 
network air interface to enable the Shared Wireless Broadband Network 
to support nationwide level interoperability. The common air interface 
shall allow migration to future technology upgrades. In the case of 
regional Upper 700 MHz D Block licensees, the common radio access 
network air interface will be determined via the auction process and 
each regional Upper 700 MHz D Block licensee will be required to enter 
into arrangements both with other regional Upper 700 MHz D Block 
licensees and with the Public Safety Broadband Licensee as necessary to 
ensure interoperability between their networks. Such arrangements must 
provide, at a minimum, that each regional Upper 700 MHz D Block 
licensee will provide the ability to roam on its network to public 
safety users of all other Shared Wireless Broadband Networks. Regional 
Upper 700 MHz D Block licensees are not permitted to assess special 
roaming charges (over and above service fees charged for in-region use) 
in cases where public safety users require roaming for mutual aid or 
emergencies.
    (2) The technology selected for the Shared Wireless Broadband 
Network shall be permitted to evolve based on commercial wireless 
upgrade timeframes, except that future upgrades shall include user 
equipment backward compatibility, as supported by commercial product 
availability and specified in the technology standards, to allow for 
commercially reasonable transition periods for public safety entities' 
user equipment. The notification and impact management processes 
relating to technology upgrades, and migration to such upgrades, shall 
be defined and agreed to in the Network Sharing Agreement.
    (3) To promote interoperability between the Shared Wireless 
Broadband Network and voice-based public safety networks in other 
frequency bands, the Upper 700 MHz D Block licensee will publish IP-
based specifications describing how such other public safety networks 
may access the Upper 700 MHz D Block licensee's Shared Wireless 
Broadband Network via bridges and/or gateways. The Upper 700 MHz D 
Block licensee shall charge these other public safety networks for such 
access no more than the relevant fee established or approved by the 
Commission. Public safety users shall bear the costs of the bridges and 
gateways, including installation and maintenance costs.
    (4) The Shared Wireless Broadband Network shall support a Voice 
over Internet Protocol (VoIP) capability to complement existing public 
safety mission critical voice communication systems. The VoIP 
capability shall allow interconnection with the Public Switched 
Telephone Network as well as with other public safety VoIP users on the 
network. VoIP features will include but not be limited to Push-To-Talk.
    (b) Availability, robustness, and hardening requirements as 
follows:
    (1) The Shared Wireless Broadband Network shall provide 99.6 
percent network availability for all terrestrial elements of operation 
in the coverage areas certified pursuant to Sec.  27.14(o)(1), 
calculated over each license area annually, starting four years after 
license issuance. The Upper 700 MHz D Block licensee shall use 
commercially reasonable efforts to provide network availability above 
this requirement, with the target of 99.9 percent network availability.
    (2) The method for measuring availability shall be defined in the 
Network Sharing Agreement, which shall

[[Page 57841]]

    (i) Be a measure of infrastructure availability as measured from 
the cell site radio antenna through and across the core network;
    (ii) Exclude radio signal coverage and scheduled maintenance 
downtime with prior notice to the Public Safety Broadband Licensee;
    (iii) Exclude outages caused by actions or events outside the 
reasonable control of the Upper 700 MHz D Block licensee; and
    (iv) Exclude outages only affecting limited applications.
    (3) The Shared Wireless Broadband Network design specifications 
shall include commercial best practices, such as Network Reliability 
and Interoperability Council best practices, that take into 
consideration local influencing factors such as weather, geology, and 
building codes on network attributes such as hardening of transmission 
facilities and antenna towers, extended backup power, seismic safety 
standards, and accommodations for wind, ice, and other natural 
phenomenon.
    (4) The Upper 700 MHz D Block licensee and the Public Safety 
Broadband Licensee, in consultation with the relevant community, shall 
jointly designate ``critical'' sites. The designation of sites as 
``critical'' shall not be required to cover more than 35 percent of the 
Shared Wireless Broadband Network sites for the Upper 700 MHz D Block 
license; however, the Upper 700 MHz D Block licensee shall use 
commercially reasonable efforts to designate as ``critical'' additional 
sites requested by the Public Safety Broadband Licensee, up to 50 
percent of all the licensee's sites. Sites designated as ``critical'' 
shall have battery backup power of 8 hours, and shall have generators 
with a fuel supply sufficient to operate the generators for at least 48 
hours. The Upper 700 MHz D Block licensee shall make commercially 
reasonable efforts to provide a fuel supply at ``critical'' sites above 
this requirement sufficient for a minimum of 5 days. The Upper 700 MHz 
D Block licensee and the Public Safety Broadband Licensee, in 
consultation with the relevant community, shall jointly determine the 
sites that will require redundant backhaul in order to comply with the 
network availability requirements in this section.
    (5) The Upper 700 MHz D Block Licensee and the Public Safety 
Broadband Licensee may agree on other methods to improve network 
resiliency in lieu of designating ``critical'' cell sites as described 
in paragraph (b)(4) of this section. These may include deployment of 
mobile assets or the use of satellite facilities.
    (c) A capability incorporated into the Shared Wireless Broadband 
Network infrastructure to provide monthly usage reports covering 
network capacity and priority access so that the Public Safety 
Broadband Licensee can monitor usage and provide appropriate feedback 
to the Upper 700 MHz D Block licensee on operational elements of the 
network.
    (d) Security and encryption consistent with commercial best 
practices. For purposes of complying with this paragraph, the Upper 700 
MHz D Block licensee shall:
    (1) Comply with U.S. government standards, guidelines, and models 
that are commercial best practices for wireless broadband networks.
    (2) Implement controls to ensure that public safety priority and 
secure network access are limited to authorized public safety users and 
devices, and utilize an open standard protocol for authentication.
    (3) Allow for public safety network authentication, authorization, 
automatic logoff, transmission secrecy and integrity, audit control 
capabilities, and other unique attributes.
    (e) A mechanism to ensure Quality of Service (QoS) for public 
safety and to establish various levels of priority for public safety 
communications. The Upper 700 MHz D Block licensee shall not be 
obligated to implement this provision before appropriate standards are 
developed and appropriate hardware and software are available on 
commercially reasonable terms. The Upper 700 MHz D Block Licensee and 
the Public Safety Broadband Licensee shall use reasonable efforts to 
work with applicable standards organizations, network equipment 
manufacturers, and other suppliers to accelerate the commercially 
reasonable availability of these features for the Shared Wireless 
Broadband Network. The Public Safety Broadband Licensee shall have 
authority to establish access priority and service levels, and 
authenticate and authorize public safety users. In addition, the 
following provisions for QoS shall be incorporated into the operational 
capabilities of the Shared Wireless Broadband Network.
    (1) Priority shall be defined as Public Safety Broadband Licensee-
approved user or class of users, network, application, and services 
priorities that, via user or class of users or device identification, 
or both, offer the highest assignable levels of priority for network 
access and use of network resources, services, and applications.
    (2) The Shared Wireless Broadband Network shall provide emergency 
priority access pursuant to Sec.  27.1307(e).
    (3) The Shared Wireless Broadband Network shall provide an 
appropriate priority to 9-1-1 calls.
    (4) QoS resource reservation and session control mechanisms shall 
be incorporated into the operational capabilities of the Shared 
Wireless Broadband Network.
    (5) QoS shall be considered to be the full class of mechanisms that 
are found at multiple IP layers in the network (both radio access 
network and core), and that provision and apply priority for IP packet 
based traffic.
    (6) The assignment of network resources shall enable user or 
service priority, or both, in addition to the QoS requirements of the 
application.
    (7) The Shared Wireless Broadband Network shall support multiple IP 
data services and application session flows between a user device and 
network, where each flow may have a different QoS requirement and 
priority level.
    (8) If network resources are not available to meet a resource 
reservation request, the Shared Wireless Broadband Network shall have 
the ability to provide a new QoS consistent with the limited network 
resources.
    (f) Operational capabilities to support public safety systems as 
specified below:
    (1) The Shared Wireless Broadband Network shall provide access for 
all applications and services, hosted applications and services, and 
third party public safety applications and services specified in the 
Network Sharing Agreement. The Public Safety Broadband Licensee shall 
give consideration of particular applications to the overall impact on 
overall system performance.
    (2) The Shared Wireless Broadband Network shall provide for the 
application data rates shown in Table 1.
    (3) The Shared Wireless Broadband Network shall be designed to 
provide edge of cell data rates shown in Table 2. Typical data rates 
should be designed for at least 1 Mbs downlink and 600 kbps uplink. The 
data link speeds for public safety users must be at least as fast as 
the best data speeds provided to commercial users of the Shared 
Wireless Broadband Network.
    (4) The Shared Wireless Broadband Network must provide indoor 
coverage for VoIP consistent with the propagation parameters shown in 
Table 3.
    (5) For purposes of these Tables 2 and 3, the following definitions 
apply in terms of population per square mile: dense urban: 15,000 
people or greater;

[[Page 57842]]

urban 2,500-14,999; suburban 200-2,499; and rural 0-199.
    (6) The data rates in this section are design objectives and are 
not to be applied for a particular device, time or location.
    (7) Signal coverage, propagation, and capacity parameters in Table 
2 and 3 shall be reviewed by the Upper 700 MHz D Block licensee and the 
Public Safety Broadband Licensee no less than every four years to 
assess the impact of benefits from technology evolution and general 
improvement in network coverage consistent with paragraph (a)(2) of 
this section.

                       Table 1 to Sec.   90.1405--Applications and Services QoS Attributes
----------------------------------------------------------------------------------------------------------------
          Application/service                      Description                           Data rate
----------------------------------------------------------------------------------------------------------------
File transfer..........................  FTP and general data upload /    Greater than 256kb/s.
                                          download.
Email..................................  Both Web based and Entity        Less than 16kb/s.
                                          Hosted E-Mail Service.
Web browsing...........................  Intranet, extranet, and          Greater than 32kb/s.
                                          internet.
Mobile voice...........................  Equivalent to current            Minimum 15kb/s.
                                          commercial mobile voice.
Push to talk (PTT) voice...............  Commercial grade PTT / PoC       4-25kb/s.
                                          offerings with group call,
                                          alerting, and monitoring
                                          capability.
Indoor video...........................  Video that is transmitted from   20-384kb/sF.
                                          inside a building.
Outdoor video..........................  Video that is transmitted from   32-384kb/s.
                                          the street.
Location services......................  All location based services....  Less than 16kb/s.
Database transactions..................  Remote databases access both     Less than 32kb/s.
                                          under the entities' direct
                                          control as well as databases
                                          that are local.
Messaging..............................  Instant messaging, SMS, and      Less than 16kb/s.
                                          Push to X services.
Network Operations data................  Network operational and          Less than 32kb/s.
                                          maintenance data including
                                          over the air programming and
                                          remote client management.
Dispatch data..........................  Data as it relates to computer   Less than 64kb/s.
                                          aided dispatching..
Generic traffic........................  General category for traffic     Less than 64kb/s.
                                          that does not fall within any
                                          of the categories described
                                          above, and that generates less
                                          than 64kb of data per second.
Telemetry..............................  Remote measurement and           70-120 kb/s.
                                          reporting of information for
                                          radio devices, vehicles, and
                                          sensor data.
Virtual Private Networking.............  Secure remote access to entity   64--256 kb/s.
                                          LAN and WAN environments.
----------------------------------------------------------------------------------------------------------------


                       Table 2 to Sec.   90.1405--Data Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
                                                                    Forward link
                                  Cell coverage                    throughput on-    Reverse link throughput on-
           Morphology                 area       Sector loading    street single     street single user average
                                   reliability       factor      user average cell-           cell-edge
                                                                        edge
----------------------------------------------------------------------------------------------------------------
Dense Urban....................             95%             70%  256 kbps.........  256 kbps
Urban..........................             95%             70%  256 kbps.........  256 kbps
Suburban.......................             95%             70%  128 kbps.........  128 kbps
Rural..........................             95%             70%  128 kbps.........  128 kbps
Highway........................             95%             70%  64 kbps..........  64 kbps
----------------------------------------------------------------------------------------------------------------


                      Table 3 to Sec.   90.1405--Voice Propagation and Capacity Parameters
----------------------------------------------------------------------------------------------------------------
                                                                                   Cell coverage
                  Morphology                     In-building penetration margin        area       Sector loading
                                                                                    reliability       factor
----------------------------------------------------------------------------------------------------------------
Dense Urban...................................  22 dB...........................             95%             70%
Urban.........................................  19 dB...........................             95%             70%
Suburban......................................  13 dB...........................             95%             70%
Rural.........................................  6 dB............................             95%             70%
Highway.......................................  6 dB............................             95%             70%
----------------------------------------------------------------------------------------------------------------

    17. Section 90.1407 is amended by adding paragraphs (d) and (e) to 
read as follows:


Sec.  90.1407  Spectrum use in the network.

* * * * *
    (d) The Upper 700 MHz D Block licensee may construct and operate 
the Shared Wireless Broadband Network using both the 758-763 MHz and 
788-793 MHz bands as well as the 763-768 MHz and 793-798 MHz bands as a 
combined resource. If the Upper 700 MHz D Block licensee chooses to 
operate the spectrum as a combined resource, however, 50 percent of the 
capacity available from the combined 20 megahertz of spectrum must be 
assigned to public safety users and the other 50 percent must be 
assigned to the commercial users, consistent with the respective 
capacity and priority rights of the Upper 700 MHz D Block license and 
the Public Safety Broadband License and with rules in this Part.
    (e) Emergency Priority Access. (1) The Upper 700 MHz D Block 
licensee must provide public safety users priority access to, but not 
preemptive use of, up to 40 percent of the commercial spectrum capacity 
(two megahertz in each of the uplink and downlink blocks), assuming the 
full public safety broadband block spectrum capacity is being used, for 
an aggregate total of 14 megahertz of overall network capacity in the 
following circumstances:
    (i) The President or a state governor declares a state of 
emergency.
    (ii) The President or a state governor issues an evacuation order 
impacting areas of significant scope.

[[Page 57843]]

    (iii) The national or airline sector threat level is set to red.
    (2) The D Block licensee must provide priority access to, but not 
preemptive use of, up to 20 percent of the commercial spectrum capacity 
(one megahertz in each of the uplink and downlink blocks) in the 
following circumstances:
    (i) The National Weather Service issues a hurricane or flood 
warning likely to impact a significant area.
    (ii) The occurrence of other major natural disasters, such as 
tornado strikes, tsunamis, earthquakes, or pandemics.
    (iii) The occurrence of manmade disasters or acts of terrorism of a 
substantial nature.
    (iv) The occurrence of power outages of significant duration and 
scope.
    (v) The national threat level is set to orange.
    (3) The Upper 700 MHz D Block licensee must assign the next 
available channel to the requesting public safety user over a 
commercial user--i.e., the public safety user would be placed at the 
top of the queue--and should not preempt a commercial call in progress. 
Emergency priority access is limited to the time and geographic scope 
of the emergency.
    (4) To trigger emergency priority access, the Public Safety 
Broadband Licensee must request, on behalf of the impacted public 
safety agencies, that the Upper 700 MHz D Block licensee provide such 
access. Emergency priority access requests initiated by the Public 
Safety Broadband Licensee will cover a 24-hour time period, and must be 
reinitiated by the Public Safety Broadband Licensee for each 24-hour 
time period thereafter that the priority access is required.
    (5) In the event that the Upper 700 MHz D Block licensee and the 
Public Safety Broadband Licensee do not agree that an emergency has 
taken place, the Public Safety Broadband Licensee may request the 
Defense Commissioner to resolve the dispute.
    18. Section 90.1410 is amended by revising paragraphs (c), (d), 
(f), (g), and (j), and adding paragraphs (k) through (n), to read as 
follows:


Sec.  90.1410  Network sharing agreement.

* * * * *
    (c) The definition of ``emergency'' for purposes of emergency 
priority access, as described in Sec.  90.1407(e).
    (d) All service fees to be imposed for services to public safety, 
including fees for normal network service, interconnected service, and 
fees for priority access to the D Block spectrum in an emergency.
* * * * *
    (f) The right of the Public Safety Broadband Licensee to determine 
and approve the specifications of public safety equipment used on the 
network and the right to purchase its own subscriber equipment from any 
vendor it chooses, to the extent such specifications and equipment are 
consistent with reasonable network management requirements.
    (g) The terms, conditions, and timeframes pursuant to which the 
Upper 700 MHz D Block licensee must make available at least one handset 
suitable for public safety use that includes an integrated satellite 
solution.
* * * * *
    (j) To the extent that interoperability arrangements between the 
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee 
are required under Sec.  90.1405(a)(1), the terms and conditions of the 
arrangement, including the terms and conditions under which roaming 
will be provided to public safety users of other Shared Wireless 
Broadband Networks.
    (k) The terms of a standard agreement under which public safety 
networks operating in other frequency bands may connect to the Shared 
Wireless Broadband Network pursuant to and in accordance with Sec.  
90.1405(a)(1).
    (l) Terms regarding the establishment of access priorities, service 
levels and related requirements, and approval of public safety 
applications and end user devices, by the Public Safety Broadband 
Licensee.
    (m) A process for forecasting demand for public safety usage.
    (n) A contract term, not to exceed a 15 year period that coincides 
with the terms of the Upper 700 MHz D Block license and the Public 
Safety Broadband License.
    19. Section 90.1415 is amended by revising paragraphs (a), (b), 
(c), (f)(4), and (g) to read as follows:


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

* * * * *
    (a) Approval of NSA as pre-condition for granting the Upper 700 MHz 
D Block License. The Commission shall not grant an Upper 700 MHz D 
Block license until the winning bidder for the subject Upper 700 MHz D 
Block license has negotiated an NSA and such other agreements as the 
Commission may require or allow with the Public Safety Broadband 
Licensee, and the NSA and related agreements, or documents have been 
approved by the Commission and executed by the required parties. 
Parties to the NSA must also include the Upper 700 MHz D Block 
licensee, a Network Assets Holder, and an Operating Company, as these 
entities are defined in Sec.  27.4 of this chapter.
    (b) Requirement of negotiation. Negotiation of an NSA between a 
winning bidder for an Upper 700 MHz D Block license and the Public 
Safety Broadband Licensee must commence by the date the winning bidder 
files its long form application or the date on which the Commission 
designates the Public Safety Broadband Licensee, whichever is later, 
and must conclude within six months of that date. Parties to this 
negotiation are required to negotiate in good faith. Two members of the 
Commission staff, one from the Wireless Telecommunications Bureau and 
one from the Public Safety and Homeland Security Bureau, shall be 
present at all stages of the negotiation as neutral observers.
    (c) Reporting requirements. A winning bidder for the Upper 700 MHz 
D Block license must file a report with the Commission within 10 
business days of the commencement of the negotiation period certifying 
that active and good faith negotiations have begun, providing the date 
on which they commenced, and providing a schedule of the initial dates 
on which the parties intend to meet for active negotiations, covering 
at a minimum the first 30-day period. Beginning three months from the 
triggering of the six-month negotiation period, the winning bidder for 
a Upper 700 MHz D Block license and the Public Safety Broadband 
Licensee must jointly provide detailed reports, on a monthly basis and 
subject to a request for confidential treatment, on the progress of the 
negotiations throughout the remainder of the negotiations. These 
reports must include descriptions of all material issues that the 
parties have yet to resolve.
* * * * *
    (f) * * *
    (4) Determining that no resolution of the disputed issues can be 
made consistent with the public interest.
    (g) Lack of a Commission-approved NSA and such other agreements as 
the Commission may require or allow. If a winning bidder chooses not to 
execute a Commission-approved NSA or such other agreements as the 
Commission may require or allow within 10 business days of Commission 
approval, the winning bidder's long-form application will be dismissed, 
the winning bidder will be deemed to have defaulted under Sec.  
1.2109(c) of this chapter, and the winning bidder will be liable for 
the

[[Page 57844]]

default payment specified in Sec.  1.2104(g)(2) of this chapter and 
Sec.  27.501(b)(3). In all other circumstances in which the parties do 
not submit executed copies of a Commission-approved NSA and such other 
agreements within the time permitted by this section, the winning 
bidder's long-form application will be dismissed and any payments made 
toward the winning bid will be returned to the payor(s) of record.
    20. Section 90.1430 is amended by revising paragraph (b) 
introductory text and paragraph (b)(4) to read as follows:


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

* * * * *
    (b) Rights to early build-out in areas with a build-out commitment. 
In an area where the Upper 700 MHz D Block licensee has committed, in 
the NSA, to build out by a certain date, a public safety entity may, 
with the pre-approval of the Public Safety Broadband Licensee and the 
Upper 700 MHz D Block licensee, and subject to the requirements set 
forth herein, construct a broadband network in that area at its own 
expense so long as the network is capable of operating on the Shared 
Wireless Broadband Network and meets all the requirements and 
specifications of the network required under the NSA.
* * * * *
    (4) Attribution of early build-out to applicable construction 
benchmarks. Upon completion of construction, transfer of ownership to 
the Upper 700 MHz D Block licensee, and compensation as required 
herein, if applicable, the Upper 700 MHz D Block licensee may include 
the network constructed pursuant to the early build-out provisions 
herein for purposes of determining whether it has met its build-out 
benchmarks and the build-out requirements of the NSA.
* * * * *
    21. Section 90.1440 is amended by adding paragraph (c) to read as 
follows:


Sec.  90.1440  Reporting obligations.

* * * * *
    (c) The Upper 700 MHz D Block licensee must provide regular monthly 
reports on network usage to the Public Safety Broadband Licensee.

    Note: The following appendices will not appear in the code of 
Federal Regulations:

Appendix A

Geographical Boundaries of the 58 Public Safety Regions

------------------------------------------------------------------------
                          States, counties and territories included in
        Number                              regions
------------------------------------------------------------------------
1....................  Alabama.
2....................  Alaska.
3....................  Arizona.
4....................  Arkansas.
5....................  California--South (to the northernmost borders of
                        San Luis Obispo, Kern, and San Bernardino
                        Counties).
6....................  California--North (that part of California not
                        included in California-South).
7....................  Colorado.
8....................  New York-Metropolitan--New York: Bronx, Kings,
                        Nassau, New York, Orange, Putnam, Queens,
                        Richmond, Rockland, Suffolk, Sullivan, Ulster,
                        Dutchess, and Westchester Counties; New Jersey:
                        Bergen, Essex, Hudson, Morris, Passaic, Sussex,
                        Union, Warren, Middlesex, Somerset, Hunterdon,
                        Mercer, and Monmouth Counties.
9....................  Florida.
10...................  Georgia.
11...................  Hawaii.
12...................  Idaho.
13...................  Illinois (all except area in Region 54).
14...................  Indiana (all except area in Region 54).
15...................  Iowa.
16...................  Kansas.
17...................  Kentucky.
18...................  Louisiana.
19...................  New England--Maine; New Hampshire; Vermont;
                        Massachusetts; Rhode Island; Connecticut.
20...................  Maryland; Washington, D.C.; Virginia--Northern
                        (Arlington, Fairfax, Fauquier, Loudoun, Prince
                        William and Stafford Counties; and Alexandria,
                        Fairfax, Falls Church, Manassas and Manassas
                        Park Cities).
21...................  Michigan.
22...................  Minnesota.
23...................  Mississippi.
24...................  Missouri.
25...................  Montana.
26...................  Nebraska.
27...................  Nevada.
28...................  New Jersey (except for counties included in the
                        New York--Metropolitan, Region 8, above)
                        Pennsylvania (Bucks, Chester, Montgomery,
                        Philadelphia, Berks, Delaware, Lehigh,
                        Northampton, Bradford, Carbon, Columbia,
                        Dauphin, Lackawanna, Lancaster, Lebanon,
                        Luzerne, Lycoming, Monroe, Montour,
                        Northumberland, Pike, Schuylkill, Sullivan,
                        Susquehanna, Tioga, Wayne, Wyoming and York
                        Counties); Delaware.
29...................  New Mexico.
30...................  New York--Albany (all except area in New York--
                        Metropolitan, Region 8, and New York--Buffalo,
                        Region 55).
31...................  North Carolina.
32...................  North Dakota.
33...................  Ohio.
34...................  Oklahoma.
35...................  Oregon.
36...................  Pennsylvania (all except area in Region 28,
                        above).
37...................  South Carolina.
38...................  South Dakota.
39...................  Tennessee.
40...................  Texas--Dallas (including the counties of Cooke,
                        Grayson, Fannin, Lamar, Red River, Bowie, Wise,
                        Denton, Collin, Hunt, Delta, Hopkins, Franklin,
                        Titus, Morris, Cass, Tarrant, Dallas, Palo
                        Pinto, Parker, Rockwall, Kaufman, Rains,
                        VanZandt, Wood, Smith, Camp, Upshur, Gregg,
                        Marion, Harrison, Panola, Rusk, Cherokee,
                        Anderson, Henderson, Navarro, Ellis, Johnson,
                        Hood, Somervell and Erath).

[[Page 57845]]

 
41...................  Utah.
42...................  Virginia (all except area in Region 20, above).
43...................  Washington.
44...................  West Virginia.
45...................  Wisconsin (all except area in Region 54).
46...................  Wyoming.
47...................  Puerto Rico.
48...................  U.S. Virgin Islands.
49...................  Texas--Austin (including the counties of Bosque,
                        Hill, Hamilton, McLennan, Limestone, Freestone,
                        Mills, Coryell, Falls, Robertson, Leon, San
                        Saba, Lampasas, Bell, Milam, Brazos, Madison,
                        Grimes, Llano, Burnet, Williamson, Burleson,
                        Lee, Washington, Blanco, Hays, Travis, Caldwell,
                        Bastrop, and Fayette).
50...................  Texas--El Paso (including the counties of Knox,
                        Kent, Stonewall, Haskell, Throckmorton, Gaines,
                        Dawson, Borden, Scurry, Fisher, Jones,
                        Shackelford, Stephens, Andrews, Martin, Howard,
                        Mitchell, Nolan, Taylor, Callahan, Eastland,
                        Loving, Winkler, Ector, Midland, Glasscock,
                        Sterling, Coke, Runnels, Coleman, Brown,
                        Comanche, Culberson, Reeves, Ward, Crane, Upton,
                        Reagan, Irion, Tom Green, Concho, McCulloch,
                        Jeff Davis, Hudspeth, El Paso, Pecos, Crockett,
                        Schleicher, Menard, Mason, Presidio, Brewster,
                        Terrell, Sutton, and Kimble).
51...................  Texas--Houston (including the counties of Shelby,
                        Nacogdoches, San Augustine, Sabine, Houston,
                        Trinity, Angelina, Walker, San Jacinto, Polk,
                        Tyler, Jasper, Newton, Montgomery, Liberty,
                        Hardin, Orange, Waller, Harris, Chambers,
                        Jefferson, Galveston, Brazoria, Fort Bend,
                        Austin, Colorado, Wharton, and Matagorda).
52...................  Texas--Lubbock (including the counties of Dallam,
                        Sherman, Hansford, Ochiltree, Lipscomb, Hartley,
                        Moore, Hutchinson, Roberts, Hemphill, Oldham,
                        Potter, Carson, Grey, Wheeler, Deaf Smith,
                        Randall, Armstrong, Donley, Collingsworth,
                        Parmer, Castro, Swisher, Briscoe, Hall,
                        Childress, Bailey, Lamb, Hale, Floyd, Motley,
                        Cottle, Hardeman, Foard, Wilbarger, Witchita,
                        Clay, Montague, Jack, Young, Archer, Baylor,
                        King, Dickens, Crosby, Lubbock, Kockley,
                        Cochran, Yoakum, Terry, Lynn, and Garza).
53...................  Texas--San Antonio (including the counties of Val
                        Verde, Edwards, Kerr, Gillespie, Real, Bandera,
                        Kendall, Kinney, Uvalde, Medina, Bexar, Comal,
                        Guadalupe, Gonzales, Lavaca, Dewitt, Karnes,
                        Wilson, Atascosa, Frio, Zavala, Maverick,
                        Dimmit, LaSalle, McMullen, Live Oak, Bee,
                        Goliad, Victoria, Jackson, Calhoun, Refugio,
                        Aransas, San Patricio, Nueces, Jim Wells, Duval,
                        Webb, Kleberg, Kenedy, Brooks, Jim Hogg, Zapata,
                        Starr, Hidalgo, Willacy, and Cameron).
54...................  Chicago--Metropolitan--Illinois: Winnebago,
                        McHenry, Cook, Kane, Kendall, Grundy, Boone,
                        Lake, DuPage, DeKalb, Will, and Kankakee
                        Counties; Indiana: Lake, LaPorte, Jasper,
                        Starke, St. Joseph, Porter, Newton, Pulaski,
                        Marshall, and Elkart Counties; Wisconsin:
                        Kenosha, Milwaukee, Washington, Dodge, Walworth,
                        Jefferson, Racine, Ozaukee, Waukesha, Dane, and
                        Rock Counties.
55...................  New York--Buffalo (including the counties of
                        Niagara, Chemung, Schuyler, Seneca, Erie,
                        Chautauqua, Cattaraugus, Allegany, Wyoming,
                        Genesee, Orleans, Monroe, Livingston, Steuben,
                        Ontario, Wayne, and Yates).
56...................  Guam and the Northern Mariana Islands.
57...................  American Samoa.
58...................  Gulf of Mexico.
------------------------------------------------------------------------

Appendix B

                                    Performance Tiers by Public Safety Region
----------------------------------------------------------------------------------------------------------------
                                                                                              Coverage required
       PSR                 PSR name            Total pops*      Land area        Density     at end of 15th year
                                                                 (SqM)*                        of license term
----------------------------------------------------------------------------------------------------------------
8................  New York--Metropolitan..      19,092,214           9,841         1,940.1  Tier 1: 98%
                                                                                              coverage required
                                                                                              for PSRs with a
                                                                                              population density
                                                                                              equal to or
                                                                                              greater than 500
                                                                                              pops per square
                                                                                              mile.
47...............  Puerto Rico.............       3,808,610           3,425         1,112.1  ...................
48...............  U.S. Virgin Islands.....         108,612             134           810.5  ...................
57...............  American Samoa..........          57,291              77           744.0  ...................
54...............  Chicago--Metropolitan...      12,685,330          17,100           741.8  ...................
20...............  Maryland; Washington,          7,831,327          12,070           648.8  ...................
                    DC; Virginia--Northern.
56...............  Guam and the Northern            224,026             389           575.9  ...................
                    Mariana Islands.
28...............  New Jersey,                   10,526,480          22,729           463.1  Tier 2: 94%
                    Pennsylvania, Delaware.                                                   coverage required
                                                                                              for PSRs with a
                                                                                              population density
                                                                                              equal to or
                                                                                              greater than 100
                                                                                              pops per square
                                                                                              mile and less than
                                                                                              500 pops per
                                                                                              square mile.
5................  California--South.......      20,637,512          56,512           365.2  ...................
9................  Florida.................      15,982,378          53,927           296.4  ...................
33...............  Ohio....................      11,353,140          40,948           277.3  ...................
55...............  New York--Buffalo.......       2,852,351          11,780           242.1  ...................
51...............  Texas--Houston..........       5,618,958          25,166           223.3  ...................
19...............  Maine, New Hampshire,         13,922,517          62,809           221.7  ...................
                    Vermont, Massachusetts,
                    Rhode Island,
                    Connecticut.
40...............  Texas--Dallas...........       6,503,125          30,589           212.6  ...................
11...............  Hawaii..................       1,211,537           6,423           188.6  ...................

[[Page 57846]]

 
21...............  Michigan................       9,938,444          56,804           175.0  ...................
36...............  Pennsylvania............       4,801,690          27,672           173.5  ...................
31...............  North Carolina..........       8,049,313          48,711           165.2  ...................
14...............  Indiana.................       4,763,619          31,283           152.3  ...................
10...............  Georgia.................       8,186,453          57,906           141.4  ...................
39...............  Tennessee...............       5,689,283          41,217           138.0  ...................
42...............  Virginia................       5,115,733          37,360           136.9  ...................
37...............  South Carolina..........       4,012,012          30,109           133.2  ...................
6................  California--North.......      13,234,136          99,447           133.1  ...................
30...............  New York--Albany........       3,182,726          29,379           108.3  ...................
18...............  Louisiana...............       4,468,976          43,562           102.6  ...................
17...............  Kentucky................       4,041,769          39,728           101.7  ...................
49...............  Texas--Austin...........       2,254,226          24,263            92.9  Tier 3: 90%
                                                                                              coverage required
                                                                                              for PSRs with a
                                                                                              population density
                                                                                              less than 100 pops
                                                                                              per. square mile.
43...............  Washington..............       5,894,121          66,544            88.6  ...................
1................  Alabama.................       4,447,100          50,744            87.6  ...................
24...............  Missouri................       5,595,211          68,886            81.2  ...................
13...............  Illinois................       3,722,488          49,049            75.9  ...................
44...............  West Virginia...........       1,808,344          24,078            75.1  ...................
53...............  Texas--San Antonio......       3,916,309          53,562            73.1  ...................
22...............  Minnesota...............       4,919,479          79,610            61.8  ...................
23...............  Mississippi.............       2,844,658          46,907            60.6  ...................
45...............  Wisconsin...............       2,692,016          48,327            55.7  ...................
15...............  Iowa....................       2,926,324          55,869            52.4  ...................
4................  Arkansas................       2,673,400          52,068            51.3  ...................
34...............  Oklahoma................       3,450,654          68,667            50.3  ...................
3................  Arizona.................       5,130,632         113,635            45.2  ...................
7................  Colorado................       4,301,261         103,718            41.5  ...................
35...............  Oregon..................       3,421,399          95,997            35.6  ...................
16...............  Kansas..................       2,688,418          81,815            32.9  ...................
41...............  Utah....................       2,233,169          82,144            27.2  ...................
26...............  Nebraska................       1,711,263          76,872            22.3  ...................
50...............  Texas--El Paso..........       1,472,545          72,617            20.3  ...................
52...............  Texas--Lubbock..........       1,086,657          55,600            19.5  ...................
27...............  Nevada..................       1,998,257         109,826            18.2  ...................
12...............  Idaho...................       1,293,953          82,747            15.6  ...................
29...............  New Mexico..............       1,819,046         121,356            15.0  ...................
38...............  South Dakota............         754,844          75,885             9.9  ...................
32...............  North Dakota............         642,200          68,976             9.3  ...................
25...............  Montana.................         902,195         145,552             6.2  ...................
46...............  Wyoming.................         493,782          97,100             5.1  ...................
2................  Alaska..................         626,932         571,951             1.1  ...................
58...............  Gulf of Mexico..........  ..............         250,922  ..............  ...................
----------------------------------------------------------------------------------------------------------------
* Based on 2000 U.S. Census Data.
The first 55 Public Safety Regions are defined in Public Safety 700 MHz Band--General Use Channels: Approval of
  Changes to Regional Planning Boundaries of Connecticut and Michigan, Public Notice, 16 FCC Rcd 16359 (2001).


[[Page 57847]]

Appendix C

Relocation Costs By 700 MHz RPC Region
---------------------------------------------------------------------------

    \982\ Illinois' narrowband certification for Region 13 also 
includes narrowband facilities in Region 54 (Chicago Metro area).
    \983\ Region 19 (New England) includes six states: Maine, New 
Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut.
    \984\ New York's narrowband certification for Region 30 also 
includes narrowband facilities in Region 55 (New York--Buffalo) and 
Region 8 (New York City Metro area).
    \985\ Virginia's narrowband certification for Region 42 also 
includes narrowband facilities in Region 20 (Northern Virginia/DC 
Metro).

 
------------------------------------------------------------------------
                        Region                               Amount
------------------------------------------------------------------------
Region 3 (Arizona)....................................     $1,610,100.00
Region 4 (Arkansas)...................................      1,124,900.00
Region 7 (Colorado)...................................      2,276,800.00
Region 11 (Hawaii)....................................         53,000.00
Region 12 (Idaho).....................................        723,200.00
Region 13 (Illinois) \982\............................      2,885,800.00
Region 17 (Kentucky)..................................      2,472,600.00
Region 18 (Louisiana).................................      3,979,700.00
Region 19 (New England) \983\.........................        414,400.00
Region 22 (Minnesota).................................        186,000.00
Region 23 (Mississippi)...............................        401,000.00
Region 24 (Missouri)..................................        244,100.00
Region 26 (Nebraska)..................................        366,400.00
Region 27 (Nevada)....................................        783,000.00
Region 30 (New York--Albany) \984\....................         78,100.00
Region 31 (North Carolina)............................        826,200.00
Region 33 (Ohio)......................................      3,893,000.00
Region 35 (Oregon)....................................          7,200.00
Region 39 (Tennessee).................................        231,100.00
Region 41 (Utah)......................................        204,100.00
Region 42 (Virginia) \985\............................      2,614,800.00
Region 43 (Washington)................................        209,700.00
Region 49 (Texas--Austin).............................         63,800.00
Region 51 (Texas--Houston)............................      1,034,600.00
                                                       -----------------
    Total Relocation Costs............................     26,683,600.00
------------------------------------------------------------------------

Appendix D

NSA Term Sheet

Draft Network Sharing Agreement (NSA) Term Sheet Public/Private 
Partnership

    The following terms are to be incorporated into all Network 
Sharing Agreements between each D Block licensee and the Public 
Safety Broadband Licensee, to effectuate the 700 MHz public/private 
partnership.

Term of Agreement

    <bullet> The term of the Network Sharing Agreement is 15 years. 
Extension of the term of the NSA or amendments to any of the major 
terms must be submitted to the Federal Communications Commission for 
approval.

Spectrum Use

    The D Block licensee(s) must provide public safety users with 
primary access to 10 megahertz of spectrum capacity at all times.

During Emergencies

    <bullet> The D Block licensee must provide public safety users 
emergency access to the D Block commercial capacity only in the 
event of an ``emergency,'' which is defined as follows:
    <bullet> The declaration of a state of emergency by the 
President or a state governor.
    <bullet> The issuance of an evacuation order by the President or 
a state governor impacting areas of significant scope.
    <bullet> The issuance by the National Weather Service of a 
hurricane or flood warning likely to impact a significant area.
    <bullet> The occurrence of other major natural disasters, such 
as tornado strikes, tsunamis, earthquakes, or pandemics.
    <bullet> The occurrence of manmade disasters or acts of 
terrorism of a substantial nature.
    <bullet> The occurrence of power outages of significant duration 
and scope.
    <bullet> The elevation of the national threat level to either 
orange or red for any portion of the United States, or the elevation 
of the threat level in the airline sector or any portion thereof, to 
red.
    <bullet> The D Block licensee(s) must provide public safety 
users priority access to, but not preemptive use of, up to 40 
percent of the commercial D Block spectrum capacity (i.e., 2 
megahertz in each of the uplink and downlink blocks), assuming the 
full public safety broadband block spectrum capacity is being used, 
for an aggregate total of 14 megahertz of overall network capacity 
in the following circumstances: The President or a state governor 
declares a state of emergency; the President or a state governor 
issues an evacuation order impacting areas of significant scope; or 
the national or airline sector threat is set to red. In these 
circumstances, the D Block licensee(s) must assign the next 
available channel to the requesting public safety user over a 
commercial user--i.e., the public safety user would be placed at the 
top of the queue--and would not preempt a commercial call in 
progress. The right to priority access must be limited to the time 
and geographic scope of the emergency.
    <bullet> The D Block licensee(s) must provide priority access 
to, but not preemptive use of, up to 20 percent of the commercial 
spectrum capacity (i.e., 1 megahertz in each of the uplink and 
downlink blocks) in the following circumstances: The issuance by the 
National Weather Service of a hurricane or flood warning likely to 
impact a significant area; the occurrence of other major natural 
disasters, such as tornado strikes, tsunamis, earthquakes, or 
pandemics; the occurrence of manmade disasters or acts of terrorism 
of a substantial nature; the occurrence of power outages of 
significant duration and scope; or the elevation of the national 
threat level to orange for any portion of the United States. The 
right to priority access must be limited to the time and geographic 
scope of the emergency.
    <bullet> To trigger priority access, the PSBL must request, on 
behalf of the impacted public safety agencies, that the D Block 
licensee provide such access. Priority access requests initiated by 
the PSBL will cover a 24-hour

[[Page 57848]]

time period, and must be reinitiated by the PSBL for each 24-hour 
time period thereafter that the priority access is required.
    <bullet> In the event that the D Block licensee and the PSBL do 
not agree that an emergency has taken place, the PSBL may ask the 
Defense Commissioner to resolve the dispute.

Performance Requirements

    <bullet> D Block licensee(s) are required to provide signal 
coverage and offer service to at least 40 percent of the population 
in each PSR by the end of the fourth year, and 75 percent by the end 
of the tenth year. D Block licensee(s) will be required to meet the 
following final benchmarks 15 years after the issuance of their 
license(s):
    <bullet> PSRs with a population density less than 100 people per 
square mile, the licensee(s) will be required to provide signal 
coverage and offer service to at least 90 percent of the population 
by the end of the fifteenth year;
    <bullet> PSRs with a population density equal to or greater than 
100 people per square mile and less than 500 people per square mile, 
the licensee(s) will be required to provide signal coverage and 
offer service to at least 94 percent of the population by the end of 
the fifteenth year; and
    <bullet> PSRs with a population density equal to or greater than 
500 people per square mile, the licensee(s) will be required to 
provide signal coverage and offer service to at least 98 percent of 
the population by the end of the fifteenth year.
    <bullet> These population coverage requirements must be met on a 
PSR basis, and licensees will have to use the most recently 
available U.S. Census data at the time of measurement to meet the 
requirements.
    <bullet> To the extent that the D Block licensee chooses to 
provide terrestrial commercial services to population levels in 
excess of the relevant benchmarks, the D Block licensee must make 
the same level of coverage and service available to public safety 
entities.
    <bullet> In addition to the required population benchmarks, D 
Block licensee(s) must provide service to major highways, 
interstates, and incorporated communities with populations greater 
than 3,000 no later than the end of the D Block license term. To the 
extent that coverage of major highways, interstates and incorporated 
communities with populations in excess of 3,000 requires the D Block 
licensee to extend coverage beyond what is required to meet its 
population benchmarks, coverage can be provided through non-
terrestrial means, such as MSS or other such technologies.
    <bullet> The D Block licensee and the Public Safety Broadband 
Licensee must reach agreement on a detailed build-out schedule that 
is consistent with the performance benchmarks. The build-out 
schedule must identify the specific areas of the country that will 
be built out and the extent to which interstates within the D Block 
licensee's service area will be covered by each of the performance 
deadlines. The D Block licensee may determine, in consultation with 
the Public Safety Broadband Licensee, which particular areas of the 
country will be built out by each deadline.
    <bullet> The D Block licensee may modify its population-based 
construction benchmarks where the D Block licensee and the Public 
Safety Broadband Licensee reach agreement and the Commission gives 
its prior approval for a modification. No increase in the 
performance requirements will be permitted unless it is acceptable 
to the D Block licensee.
    <bullet> For the D Block licensee for the Gulf of Mexico, the 
population-based benchmarks shall be inapplicable, and the D Block 
licensee for the Gulf of Mexico and the Public Safety Broadband 
Licensee may flexibly negotiate a coverage and service plan for 
public safety use for that region as needed.

Role and Responsibilities of the D Block Licensee

    <bullet> The D Block licensee has exclusive responsibility for 
all traditional network service provider operations, including 
customer acquisition, network monitoring and management, operational 
support and billing systems, and customer care, in connection with 
services provided to public safety users.
    <bullet> The D Block licensee is subject to monthly network 
usage reporting requirements that will enable monitoring of its 
operations by the Commission and the PSBL.
    <bullet> The D Block Licensee will allow the Public Safety 
Broadband Licensee to determine and approve the specifications of 
public safety equipment used on the network. The public safety 
subscribers will have right to purchase their own subscriber 
equipments and applications from any vendor they choose, to the 
extent such specifications, equipments, and applications are 
consistent with reasonable network management requirements and 
compatible with the network.
    <bullet> If the D Block licensee chooses to adopt a wholesale-
only model with respect to the D Block spectrum, it must ensure, 
though arrangements such as the creation of a subsidiary or by 
contracting with a third party, that retail service will be provided 
to public safety entities that complies with the Commission's 
regulatory requirements. This arrangement to provide service to 
public safety should be made part of the NSA.

Role and Responsibilities of the Public Safety Broadband Licensee

    The Public Safety Broadband Licensee's assigned duties will be 
as follows:
    <bullet> General administration of access to the 763-768 MHz and 
793-798 MHz bands by individual public safety entities, as 
facilitated through the establishment of priority access, service 
levels and related requirements negotiated into the NSA, approving 
public safety applications and end user devices, and related 
frequency coordination duties.
    <bullet> Regular interaction with and promotion of the needs of 
the public safety entities with respect to accessing and use of the 
national public safety broadband network, within the technical and 
operational confines of the NSA.
    <bullet> Interfacing with equipment vendors on its own or in 
partnership with the D Block licensee, as appropriate, to achieve 
and pass on the benefits of economies of scale concerning network 
and subscriber equipment and applications.
    <bullet> Sole authority, which cannot be waived in the NSA, to 
approve, in consultation with the D Block licensee, equipment and 
applications for use by public safety entities on the public safety 
broadband network.
    <bullet> Responsibility to establish a means to authorize and 
authenticate public safety users. The Public Safety Broadband 
Licensee may accomplish this by establishing its own system that 
would accomplish these functions or defining parameters that are 
compatible with commercial technology and can be easily implemented 
by the D Block Licensee.
    <bullet> Responsibility to facilitate negotiations between the D 
Block license winner and local and state entities to build out local 
and state-owned lands.
    <bullet> Coordination of stations operating on 700 MHz public 
safety broadband spectrum with 700 MHz public safety narrowband 
stations, including management of the internal public safety guard 
band.
    <bullet> Oversight and implementation of the relocation of 
narrowband public safety operations in channels 63 and 68, and the 
upper 1 megahertz of channels 64 and 69.
    <bullet> Exercise of sole discretion, pursuant to Section 2.103 
of the Commission's rules, whether to permit Federal public safety 
agency use of the public safety broadband spectrum, with any such 
use subject to the terms and conditions of the NSA.
    <bullet> Responsibility for reviewing and approving requests for 
early construction and operation of local public safety broadband 
networks on the 700 MHz public safety broadband spectrum in areas 
with and without a preexisting build-out commitment in the NSA, 
pursuant to the procedures and requirements outlined for such 
waivers as described in 47 CFR 90.1430.
    <bullet> Responsibility for reviewing and approving requests for 
waiver submitted by public safety entities to conduct wideband 
operations pursuant to the procedures and restrictions in connection 
with such waivers as described in 47 CFR 90.1432.

Public Safety Network Service Fees

    <bullet> The NSA must include a schedule of fees for public 
safety access to broadband network services.
    <bullet> Public safety users of the D Block public safety 
spectrum will be charged a base rate of $[--.--] per user per month.
    <bullet> The initial fixed rates in the NSA will sunset at the 
end of the fourth year of the D Block licensee's license term. After 
the sunset, applicable rates will be negotiated based on fee 
schedules developed by the General Services Administration for 
government users of the commercial spectrum.

Roaming Arrangement

    <bullet> Each regional D Block licensee must public safety users 
of all other 700 MHz public safety regional networks with the 
ability to roam on its network.
    <bullet> The NSA should further specify the relevant terms and 
conditions under which roaming will be provided.

[[Page 57849]]

Dispute Resolution Process

    <bullet> The Commission may resolve any impasse between the 
parties to the NSA, including, should the Commission find it in the 
public interest, requiring the parties to accept specified terms 
resolving the dispute. The Commission's resolution will be final.
    <bullet> In resolving any disputes between a winning D Block 
bidder and the PSBL with respect to the terms of the NSA, the 
Commission will use its discretion to determine how best to take 
into account the winning D Block bidder's business plan, as well as 
the requirements of public safety users, when mandating a 
resolution.

Safeguards for Protection of Public Safety Service

    <bullet> The D Block licensee must provide to the Public Safety 
Broadband Licensee monthly network usage statistics.
    <bullet> The D Block licensee may not discontinue service to 
public safety entities without the Commission's approval.
    <bullet> The parties must jointly file quarterly reports with 
the Commission. These reports must include detailed information on 
the areas where broadband service has been deployed, how the 
specific requirements of public safety are being met, audited 
financial statements, which public safety entities (e.g., police, 
fire departments) are using the broadband network in each area of 
operation; what types of applications (e.g., voice, data, video) are 
in use in each area of operation to the extent known; and the number 
of declared emergencies in each area of operation.

Funding of the PSBL Through the D Block Licensee

    <bullet> The Public Safety Broadband Licensee must annually 
create and submit for FCC approval a budget for its administrative 
and operational expenses. The Public Safety Broadband Licensee also 
must have an annual audit conducted by an external, independent 
auditor. The proposed annual budget to be submitted by the Public 
Safety Broadband Licensee will provide the Commission with an 
ability to ensure that the Public Safety Broadband Licensee is 
acting in a fiscally responsible manner and not engaging in 
activities that exceed the scope of its prescribed roles and 
responsibilities.
    <bullet> The Public Safety Broadband Licensee must submit a full 
financial accounting on a quarterly basis.
    <bullet> The D Block licensee must make an annual payment to the 
Public Safety Broadband Licensee of the sum total of $5 million per 
year in the aggregate in consideration for the D Block licensee's 
leased access on a secondary basis to the public safety broadband 
spectrum.
    [cir] In the event that the D Block is licensed on a regional 
basis, the Commission will specify after the close of the auction 
the annual payments required for each license won at auction, such 
that the total $5 million in annual payments to the Public Safety 
Broadband Licensee is apportioned on a per region basis, based upon 
total pops per region.
    <bullet> The annual payment funds will be placed into an escrow 
account managed by an unaffiliated third party, such as a major 
commercial financial institution, for the benefit of the Public 
Safety Broadband Licensee. The Public Safety Broadband Licensee must 
seek approval of its selected escrow account manager from the Chief, 
PSHSB. The Public Safety Broadband Licensee can draw funds on this 
account to cover its annual operating and administrative expenses in 
a manner consistent with its submitted annual budget for that fiscal 
year. The entirety of the Public Safety Broadband Licensee's annual 
operating budget shall be based on these annual payments.
    <bullet> To the extent that the Public Safety Broadband 
Licensee's actual operating expenses for a given fiscal year turn 
out to be less than its proposed budget, such that there are excess 
funds left over at the end of that fiscal year from the annual 
payment(s) made by the D Block licensee(s) at the beginning of that 
year, those excess funds may be applied towards the Public Safety 
Broadband Licensee's funding of administrative or operational 
expenses for the following fiscal year, or to fund secondary 
activities, such as the purchase of equipment for the benefit of 
individual public safety agencies.
    <bullet> The Public Safety Broadband Licensee is not permitted 
to: charge a separate lease fee to the D Block licensee(s) for their 
use of the public safety broadband spectrum or obtain loans or 
financing from any other sources.

Technical Requirements

    <bullet> Interoperability:
    [cir] The network or networks are required to use the same air 
interface and provide voice, video, and data capabilities that are 
interoperable across agencies, jurisdictions, and geographic areas. 
Interoperable means that the technology, equipment, applications, 
and frequencies employed will allow all participating public safety 
entities, whether on the same network or different regional 700 MHz 
public safety broadband networks, to communicate with one another.
    [cir] All networks are required to support roaming of public 
safety users from other networks.
    [cir] Satellite Support: D Block licensees must also ensure the 
availability to PS users in their area at least one handset with an 
integrated satellite solution.
    <bullet> Greater Technical Requirements Can Be Purchased: If a 
particular public safety agency wishes, for example, greater 
capabilities than required by the Commission's rules or this NSA, 
the Public Safety Broadband Licensee may negotiate on its behalf for 
such improvements, provided the public safety agency provides the 
requisite financing.

Appendix E

Proposed Minimum Opening Bids

                                                                   Nationwide License
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Minimum
                    Area                       Population                                                MHz                                opening bid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nationwide..................................  285,620,445  ............  ............................      10  ............  ...........    $750,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                    Regional Licenses
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Population
                                   PSR               Population    density/       Density category*       MHz     MHz*pops    $/MHz*pop       Minimum
                                                                 square mile                                                               opening bid**
--------------------------------------------------------------------------------------------------------------------------------------------------------
8....................  New York--Metropolitan.....   19,092,214      1,940.1  A                             10  190,922,140         0.45     $86,335,000
5....................  California--South..........   20,637,512        365.2  B                             10  206,375,120         0.30      62,215,000
54...................  Chicago--Metropolitan......   12,685,330        741.8  A                             10  126,853,300         0.45      57,363,000
9....................  Florida....................   15,982,378        296.4  B                             10  159,823,780         0.30      48,182,000
19...................  Maine, New Hampshire,         13,922,517        221.7  B                             10  139,225,170         0.30      41,972,000
                        Vermont, Massachusetts,
                        Rhode Island, Connecticut.
6....................  California--North..........   13,234,136        133.1  B                             10  132,341,360         0.30      39,896,000
20...................  Maryland; Washington, DC;      7,831,327        648.8  A                             10   78,313,270         0.45      35,413,000
                        Virginia--Northern.
33...................  Ohio.......................   11,353,140        277.3  B                             10  113,531,400         0.30      34,226,000
28...................  New Jersey, Pennsylvania,     10,526,480        463.1  B                             10  105,264,800         0.30      31,734,000
                        Delaware.
21...................  Michigan...................    9,938,444        175.0  B                             10   99,384,440         0.30      29,961,000

[[Page 57850]]

 
10...................  Georgia....................    8,186,453        141.4  B                             10   81,864,530         0.30      24,679,000
31...................  North Carolina.............    8,049,313        165.2  B                             10   80,493,130         0.30      24,266,000
40...................  Texas--Dallas..............    6,503,125        212.6  B                             10   65,031,250         0.30      19,605,000
39...................  Tennessee..................    5,689,283        138.0  B                             10   56,892,830         0.30      17,151,000
51...................  Texas--Houston.............    5,618,958        223.3  B                             10   56,189,580         0.30      16,939,000
42...................  Virginia...................    5,115,733        136.9  B                             10   51,157,330         0.30      15,422,000
36...................  Pennsylvania...............    4,801,690        173.5  B                             10   48,016,900         0.30      14,475,000
14...................  Indiana....................    4,763,619        152.3  B                             10   47,636,190         0.30      14,361,000
18...................  Louisiana..................    4,468,976        102.6  B                             10   44,689,760         0.30      13,472,000
17...................  Kentucky...................    4,041,769        101.7  B                             10   40,417,690         0.30      12,185,000
37...................  South Carolina.............    4,012,012        133.2  B                             10   40,120,120         0.30      12,095,000
30...................  New York--Albany...........    3,182,726        108.3  B                             10   31,827,260         0.30       9,595,000
55...................  New York--Buffalo..........    2,852,351        242.1  B                             10   28,523,510         0.30       8,599,000
43...................  Washington.................    5,894,121         88.6  C                             10   58,941,210         0.10       5,923,000
24...................  Missouri...................    5,595,211         81.2  C                             10   55,952,110         0.10       5,623,000
3....................  Arizona....................    5,130,632         45.2  C                             10   51,306,320         0.10       5,156,000
22...................  Minnesota..................    4,919,479         61.8  C                             10   49,194,790         0.10       4,944,000
1....................  Alabama....................    4,447,100         87.6  C                             10   44,471,000         0.10       4,469,000
7....................  Colorado...................    4,301,261         41.5  C                             10   43,012,610         0.10       4,322,000
53...................  Texas--San Antonio.........    3,916,309         73.1  C                             10   39,163,090         0.10       3,935,000
13...................  Illinois...................    3,722,488         75.9  C                             10   37,224,880         0.10       3,741,000
11...................  Hawaii.....................    1,211,537        188.6  B                             10   12,115,370         0.30       3,652,000
34...................  Oklahoma...................    3,450,654         50.3  C                             10   34,506,540         0.10       3,468,000
35...................  Oregon.....................    3,421,399         35.6  C                             10   34,213,990         0.10       3,438,000
15...................  Iowa.......................    2,926,324         52.4  C                             10   29,263,240         0.10       2,941,000
23...................  Mississippi................    2,844,658         60.6  C                             10   28,446,580         0.10       2,859,000
45...................  Wisconsin..................    2,692,016         55.7  C                             10   26,920,160         0.10       2,705,000
16...................  Kansas.....................    2,688,418         32.9  C                             10   26,884,180         0.10       2,702,000
4....................  Arkansas...................    2,673,400         51.3  C                             10   26,734,000         0.10       2,686,000
49...................  Texas--Austin..............    2,254,226         92.9  C                             10   22,542,260         0.10       2,265,000
41...................  Utah.......................    2,233,169         27.2  C                             10   22,331,690         0.10       2,244,000
27...................  Nevada.....................    1,998,257         18.2  C                             10   19,982,570         0.10       2,008,000
29...................  New Mexico.................    1,819,046         15.0  C                             10   18,190,460         0.10       1,828,000
44...................  West Virginia..............    1,808,344         75.1  C                             10   18,083,440         0.10       1,817,000
26...................  Nebraska...................    1,711,263         22.3  C                             10   17,112,630         0.10       1,720,000
50...................  Texas--El Paso.............    1,472,545         20.3  C                             10   14,725,450         0.10       1,480,000
12...................  Idaho......................    1,293,953         15.6  C                             10   12,939,530         0.10       1,300,000
52...................  Texas--Lubbock.............    1,086,657         19.5  C                             10   10,866,570         0.10       1,092,000
47...................  Puerto Rico................    3,808,610      1,112.1  D                             10   38,086,100         0.02         765,000
25...................  Montana....................      902,195          6.2  D                             10    9,021,950         0.02         181,000
38...................  South Dakota...............      754,844          9.9  D                             10    7,548,440         0.02         152,000
32...................  North Dakota...............      642,200          9.3  D                             10    6,422,000         0.02         129,000
2....................  Alaska.....................      626,932          1.1  D                             10    6,269,320         0.02         126,000
46...................  Wyoming....................      493,782          5.1  D                             10    4,937,820         0.02          99,000
56...................  Guam and the Northern            224,026        575.9  D                             10    2,240,260         0.02          45,000
                        Mariana Islands.
48...................  U.S.Virgin Islands.........      108,612        810.5  D                             10    1,086,120         0.02          22,000
57...................  American Samoa.............       57,291        744.0  D                             10      572,910         0.02          12,000
58...................  Gulf of Mexico.............  ...........          N/A  N/A                           10            0          N/A          10,000
                                                   -----------------------------------------------------------------------------------------------------
                                                    285,620,445  ...........  ........................  ......  ...........  ...........     750,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                                  Density categories*          $/MHz*pop
------------------------------------------------------------------------
A.......................  density >= 500....................       $0.45
B.......................  100 <= density < 500..............        0.30
C.......................  10 <= density < 100...............        0.10
D.......................  density < 10......................        0.02
------------------------------------------------------------------------
* Density Category D also includes PSRs 47, 48, 56, and 57 regardless of
  population density.
** The proposed minimum opening bids for the regional licenses were
  calculated using the $/MHz*pop for the corresponding density category,
  except as noted above. The resulting amounts totaled nearly $750
  million. These amounts were then adjusted and rounded so that the
  total of the minimum opening bids for a set of regional licenses
  equals the proposed minimum opening bid for the nationwide license.

Appendix F

Comments and Reply Comments

List of Comments and Reply Comments In the 700 MHz Third FNPRM (WT 
Docket No. 06-150 and PS Docket 06-229)

    This is a list of parties who filed comments and reply comments 
within the designated comment periods in this proceeding. The 
complete record in this proceeding is available in the Electronic 
Comment Filing System located at http://www.fcc.gov/cgb/ecfs/.

Comments

700 MHz Regional Planning Committee, Region 6 (Northern California) 
(RPC 6)

[[Page 57851]]

Ada County Sheriff's Office
Advanced Communications Technology, Inc. (ACT)
Alcatel-Lucent (ALU)
American Association of State Highway and Transportation Officials 
(AASHTO)
American Hospital Association (AHA)
Andrew M. Seybold (Seybold)
Association of Public-Safety Communications Officials-International, 
Inc. (APCO)
AT&T Inc. (AT&T)
Big Bend Telephone Company (Big Bend)
Bill Reimann (Reimann)
Capt V. M. Sanders (Sanders)
Carol Barta (Barta)
CDMA Development Group, Inc. (CDG)
Cellular South, Inc. (Cellular South)
Charles L. Jackson, Dorothy Robyn and Coleman Bazelon (Jackson, 
Robyn, Bazelon)
City and County of San Francisco (San Francisco)
City of Philadelphia (Philadelphia)
Claire Nilles (Nilles)
Coleman Bazelon (Bazelon)
ComCentric Inc. (ComCentric)
Commonwealth of Virginia (Virginia)
Consumer Electronics Association (CEA)
Council Tree Communications, Inc (Council Tree)
Coverage Co (Coverage Co)
Cox Communications, Inc. (Cox)
Craig T. Rowland (Rowland)
CTC Telcom, Inc. (CTC)
CTIA--The Wireless Association (CTIA)
David Wills (Wills)
District of Columbia (District)
Ericsson Inc (Ericsson)
Florida Region 9, Regional Planning Committee (Region 9 RPC)
GEOCommand, Inc. (GEOCommand)
Gerard Eads (Eads)
Google Inc. (Google)
Hypres, Inc. (Hypres)
Inmarsat plc (Inmarsat)
Interisle Consulting Group (Interisle)
International Association of Fire Fighters (IAFF)
International Municipal Signal Association, International 
Association of Fire Chiefs, Inc., Congressional Fire Services 
Institute, and Forestry Conservation Communications Association 
(IMSA et al.)
James Lencioni (Lencioni)
Jessica Scheeler (Scheeler)
Jon M. Peha (Peha)
Kennebec Telephone Company, Inc. (Kennebec)
Kentucky Wireless Interoperability Executive Committee (KWIEC)
Kevin Mann (Mann)
King County Washington Regional Communications Board (King County)
Leap Wireless International, Inc. (Leap Wireless)
Mayo Clinic (Mayo)
Mercatus Center at George Mason University (Mercatus)
MetroPCS Communications, Inc. (MetroPCS)
Michael Stiles (Stiles)
Mobile Satellite Users Association (MSUA)
Mobile Satellite Ventures Subsidiary LLC (MSV)
Motorola, Inc. (Motorola)
National Association of Emergency Medical Technicians (NAEMT)
National Association of Telecommunications Officers and Advisors, 
National Association of Counties, National League of Cities, and 
U.S. Conference of Mayors (NATOA et al.)
National Emergency Number Association (NENA)
National Public Safety Telecommunications Council (NPSTC)
National Regional Planning Council (NRPC)
New York City Police Department (NYPD)
Northrop Grumman Information Technology, Inc. (Northrop Grumman)
NTCH, Inc. (NTCH)
Oregon State Interoperability Executive Council (Oregon SIEC)
Penasco Valley Telephone Cooperative, Inc. (PVTC)
Peter G. Cook Consultancy, Inc. (PGCC)
Phil Stalheim (Stalheim)
Pierce County Public Transportation Benefit Area Corporation (Pierce 
Transit)
Ponderosa Telephone (Ponderosa)
Public Interest Spectrum Coalition (PISC)
Public Safety Spectrum Trust Corporation (PSST)
QUALCOMM Incorporated (QUALCOMM)
Region 33 (Ohio) 700 MHz. Regional Planning Committee (RPC 33)
Rehabilitation Engineering Research Center for Wireless Technologies 
(Wireless RERC)
Rivada Networks (Rivada)
Rural Cellular Association (RCA)
Rural Telecommunications Group, Inc. (RTG)
Sandro Brusco, Giuseppe Lopomo, and Leslie M. Marx (Brusco et al.)
Satellite Industry Association (SIA)
Senator Daniel K. Inouye (Senator Inouye)
Smithville Telephone Company, Inc. (Smithville)
Society of Broadcast Engineers, Incorporated (SBE)
Software Defined Radio Forum (SDR Forum)
Space Data Corporation (Space Data)
Spectrum Acquisitions Inc. (SAI)
Spring Grove Communications (Spring Grove)
Sprint Nextel Corporation (Sprint Nextel)
State of California (California)
State of Louisiana (Louisiana)
State of Mississippi Department of Public Safety (Mississippi)
State of Washington Military Department (Washington)
Stagg Newman (Newman)
Telecommunications Development Corporation (TDC)
Telecommunications Industry Association (TIA)
Telecommunity, Charlotte, NC, Houston, TX, & Montgomery Co., MD 
(Telecommunity)
Televate, LLC (Televate)
Tyco Electronics M/A-COM (TE M/A-COM)
United States Cellular Corporation (USCC)
Van Buren Telephone Company, Inc. (Van Buren)
Verizon Wireless (Verizon)
Virginia Fire Chiefs Association, Inc. (VFCA)
Virginia Information Technologies Agency (VITA)
Western Fire Chiefs Association (WFCA)
Wiggins Telephone Association (Wiggins)
Wirefree Partners III, LLC (Wirefree)
Xanadoo Corp. (Xanadoo)

Reply Comments

American Association of State Highway and Transportation Officials 
(AASHTO)
American Petroleum Institute (API)
Association of Public-Safety Communications Officials-International, 
Inc. (APCO)
AT&T Inc. (AT&T)
City of Philadelphia (Philadelphia)
Council Tree Communications, Inc. (Council Tree)
CTIA--The Wireless Association (CTIA)
Cyren Call Communications Corporation (Cyren Call)
Google Inc. (Google)
Intelligent Transportation Society of America (ITS America)
International Assn. of Chiefs of Police & National Sheriffs' Assn. 
(IACPNSA)
International City/County Management Association (ICCMA)
International Municipal Signal Association, International 
Association of Fire Chiefs, Inc., Congressional Fire Services 
Institute, and Forestry Conservation Communications Association 
(IMSA et al.)
Joe Hanna (Hanna)
Leap Wireless International, Inc. (Leap Wireless)
Maryland Broadband Cooperative (MBC)
Michael Dasso (Dasso)
Motorola, Inc. (Motorola)
National Association of Telecommunications Officers and Advisors, 
National Association of Counties, National League of Cities, and 
U.S. Conference of Mayors (NATOA et al.)
National Association of State Emergency Medical Services Officials 
(NASEMSO)
National Public Safety Telecommunications Council (NPSTC)
New York City Police Department (NYPD)
Nextwave Wireless, Inc. (Nextwave)
Northrop Grumman Information Technology, Inc. (Northrop Grumman)
Public Safety Spectrum Trust Corporation (PSST)
Regional Planning Committee Twenty (RPC 20)
Bill Reimann (Reimann)
Rivada Networks (Rivada)
Satellite Industry Association (SIA)
SouthernLINC Wireless (SouthernLINC)
Space Data Corporation (Space Data)
Sprint Nextel Corporation (Sprint Nextel)
Telecommunity, Charlotte, NC, Houston, TX, & Montgomery Co., MD
Televate, LLC (Televate)
Tyco Electronics M/A-COM (TE M/A-COM)
United States Cellular Corporation (USCC)
Verizon Wireless (Verizon)

[FR Doc. E8-23045 Filed 10-2-08; 8:45 am]
BILLING CODE 6712-01-P


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