57750 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

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

instructions for submitting comments. 

• 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. 

• People with Disabilities: Contact the 

Commission to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

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

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Peter Trachtenberg at (202) 418–7369, at 

peter.trachtenberg@fcc.gov, Spectrum 

and Competition Policy Division, 

Wireless Telecommunications Bureau; 

Jeffrey S. Cohen at (202) 418–0799, 

jeff.cohen@fcc.gov, 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 FCC@BCPIWEB.com. 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, 


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1See 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. 

2See 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). 

3See id. at 8052 para. 7. 

4Under 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. 

5The 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. 

6The 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. 

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. 

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. 

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. 

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 


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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 satellitecapable 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 


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7Because 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. 

8See 47 U.S.C. 337(f)(1). 

payments owed by any defaulting 

bidder. The Commission proposes a rule 

equivalent to the Commission’s 

standard rule with respect to nonpackage 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

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. 

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 


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9See Deficit Reduction Act of 2005, Public Law 

No. 109–171, 120 Stat. 4 (2006). 10See 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). 

11See 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. 

12See Second Report and Order, 22 FCC Rcd at 

15406 para. 322. 

13 Id. at 15428 para. 386. 

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). 

15Second Report and Order, 22 FCC Rcd at 15431 

para. 396. 

16 Id. 

17 Id. 

18 Id. 

19 Id. 

20 Id. at 15433–34 para. 405. 

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

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

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

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, offthe-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

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 


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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. 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. 

28 Id. at 15466–71 para. 513–30. 

29See id. at 15400 para. 301. 

30See id. at 15404 para. 314. 

31See 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. 

32See id. at 15333 para. 111. 

33 Id. at 15410 para. 332. 

34 Id. at 15412 para. 341. 

35 Id. at 15412 para. 339. 

36 Id. 

37See 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 

Continued 

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

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. 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

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

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. 

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 


jlentini on PROD1PC65 with PROPOSALS2
57756 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

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). 

38AT&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). 

39See 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). 

40See AT&T Petition for Reconsideration at 7–9; 

Cyren Call Petition for Reconsideration at 5–7; 

Frontline Petition for Reconsideration at 23–25. 

41See AT&T Petition for Reconsideration at 5. 

42See Frontline Petition for Reconsideration at 

22. See also Cyren Call Petition for Reconsideration 

at 7. 

43See, generally, Frontline Petition for 

Reconsideration; MetroPCS Petition for 

Reconsideration. 

44See 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). 

45See id. at 18193–96 paras. 194–200. 

46See Virginia Petition for Reconsideration; 

Pierce Transit Petition for Reconsideration. 

47See 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). 

48See Auction 73, 700 MHz Band, at http:// 

wireless.fcc.gov/auctions/ 

default.htm?job=auction_summary&id=73. 

49See 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. 

50See 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). 

51See Office of Inspector General Report, from 

Kent R. Nilsson, Inspector General, to Chairman 

Kevin J. Martin (OIG rel. Apr. 25, 2008) (OIG 

Report). 

52OIG Report at 2. 

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. 

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

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 preauction 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

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. 

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

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

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 


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

6. 

54See 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. 

55See id. at 8064 para. 40, 8067 para. 48. 

56See id. at 8065–8065 paras. 42–45 

57See id. at 8067 para. 48, 8068 para. 51. 

58See id. at 8068 para. 53. 59See id. at 8063 para. 37. 60See id. at 8068 para. 52. 61See id. at 8092–93 para. 126. 62See id. at 8111 paras. 180–182. 63See id. at 8069 para. 54. 64See id. at 8069 para. 54, 8070 para. 58. 65See id. at 8109–8112 paras. 183–86. 

66See id. at 8071–78 paras. 61–83. 

67See id. at 8079–80 paras. 85–87. 

68See id. at 8081–86 paras. 90–105 

69See id. at 8088–89 paras. 113–16, 8090–92 

paras. 121–26. 

70See id. at 8094–95 paras. 131–33. 

71See id. at 8096–8100 paras. 138–54. 

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: 

• To facilitate public safety access to 

a nationwide, interoperable broadband 

network in a timely manner; 

• To identify concerns in the existing 

structure of the 700 MHz Public/Private 

Partnership to inform the Commission 

decision making going forward; 

• To promote wireless innovation and 

broadband network penetration while 

meeting the communications needs of 

the first responder community in a 

commercially viable manner; 

• 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 

• To maximize the commercial and 

public safety benefits of the D Block 

spectrum.53

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. 

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

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

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

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

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

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 reauction 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

40. The Commission also sought 

comment on a number of other auctionrelated issues, including (1) whether to 

restrict who may participate in the new 

auction of the D Block license; (2) 


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72See id. at 8104 paras. 163–64. 

73See id. at 8105–06 paras. 166–67. 

74See id. at 8108–09 paras. 172–75. 

75See id. at 8115–16 paras. 192–205. 

76See id. at 8119–20 paras. 206–212. 

77See id. at 8052 para. 7. 

78See id. at 8052 n. 10. 

79See 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. 

80See 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. 

81See, 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. 

82See 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.’’). 

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

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

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

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 


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83See, 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.’’). 

84See AT&T Comments at 4; Cellular South 

Comments at 2; NATOA et al. Comments at 8; see 

also PSST Comments at 5–6. 

85AT&T Comments at 2–3. See also IMSA et al. 

Reply Comments at 6; PSST Comments at 6. 

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. 

87See, 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. 

88Motorola 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.’’). 

89See MetroPCS Comments at 9–11; RTG 

Comments at 4–5. 

90MetroPCS 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. 

91NYPD 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. 

92San 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. 

93See, e.g., AT&T Comments at 2. 

94See 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). 

97See 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. 

assert that such funding is not going to 

be forthcoming, or that it is too 

uncertain for the Commission to rely 

upon.83

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

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

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

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

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 


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98See 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.’’). 

99See, 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.’’). 

100See, 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.’’). 

101See, e.g., Second Report and Order, 22 FCC 

Rcd at para. 396. 

102See, e.g., 47 U.S.C. 151, 309(j)(3)(D). 

103See 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.’’). 

104See, 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.’’). 

105The 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. 

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. 

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. 

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. 

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 manmade 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 


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106See Council Tree Comments at ii. 107See 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. 

108See, 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.’’). 

109The 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 traditionallydesigned, commercial-grade network designed with 

some additional redundancy.’’ SouthernLINC Reply 

Comments at 3–4; but see id. at 4 (‘‘[a] true publicprivate 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. 

110Second Report and Order, 22 FCC Rcd at 

15420 para. 369. 

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. 

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

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

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 


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111Second FNPRM, 23 FCC Rcd 8047, 8048–49 

para. 1. 

112Second FNPRM, 23 FCC Rcd at 8111–12 para. 

183. 

113Second FNPRM, 23 FCC Rcd at 8112 para. 185. 

114Second FNPRM, 23 FCC Rcd at 8112 para. 184. 

115APCO 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. 116See e.g. APCO Comments at 40. 117NPSTC Reply Comments at 10. 118AT&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. 

119US 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. 

120US Cellular Comments at i. See also AT&T 

Reply Comments at 9; City of Philadelphia Reply 

Comments at 6–7 & nn. 13, 16. 

121RTG Comments at ii, 4; US Cellular Comments 

at 2. 

122TeleCommUnity Comments at 13–14. 

123NYPD Reply Comments at 4–5; Philadelphia 

Reply Comments at 8. 

124NYPD Reply Comments at 7–14; Philadelphia 

Reply Comments at 5–8. 

125Coverage Co. Comments at 2; Space Data Corp. 

Comments at 2–3, 12. 

126 Google Comments at 3; Qualcomm Comments 

at 8. 

127Although 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 

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

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

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

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

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 


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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. 

128See Appendix A. 

129Second 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. 

130Second 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. 

131See, e.g., APCO Comments at 40; IMSA et al. 

Comments at 12; NATOA, et al. Comments at 10. 

132Second Report and Order, 22 FCC Rcd at 

15420 para. 369. 

133See 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). 

134AT&T Comments at 7–8; Verizon Wireless 

Comments at 7–8, 24–31. 

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. 

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. 

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. 

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 


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135See Appendix A. 

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). 

137AT&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. 

138See 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). 

139See, 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). 

140See 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.’’). 

141Coverage 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. 

burdens on a single, nationwide D Block 

licensee. 

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. 

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 buildout 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

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

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 interregional interoperability that have been 

more successful than others.140

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 lowpopulation density, rural areas, as 

Coverage Co. and Space Data request.141


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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). 

143AT&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). 

144See ‘‘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). 

145See ‘‘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). 

146Second Report and Order, 22 FCC Rcd at 

15431 para. 396. 

147 Id. 

148 Id. 

149Second FNPRM, 23 FCC Rcd at 8077 para. 80. 

150 Id. 

151 Id. 

152 Id. 

153 Id. at 8077 para. 81. 

154 Id. 

155 Id. 

156ALU 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). 

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

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. 

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

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

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 


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157See ALU Comments at 8; Google Comments at 

4–5; Ericsson Comments at 24 n.56. 

158NRPC Comments at 6; APCO Comments at 27. 

159 Google Comments at 4–5; ALU Comments at 

8–9. 

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

161ALU 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. 

162See ALU Comments at 8. 

163See Ericsson Comments at 17. 

164See Google Comments at 4; SouthernLINC 

Reply Comments at 9–10. 

165Second Report and Order, 22 FCC Rcd at 

15441–42 paras. 426–27. 

166Second FNPRM, 23 FCC Rcd at 8079, para. 85. 

167 Id. 

168 Id. 

169 Id. at 8079–80, para. 86. 

170PSST 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). 

171PSST 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). 

172See 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). 

173PSST 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. 

174APCO Comments at 27–28. But see NATOA et 

al. Reply Comments at 11. 

175APCO Comments at 27–28. 

176SDR Forum Comments at 16, 25, 27; AT&T 

Comments at 13; NPSTC Comments at 47–48. 

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

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

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

(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

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

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

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 


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177Leap 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.’’). 

178See http://wps.ncs.gov/. 

179AT&T Comments at 13; see also ALU 

Comments at 9–10; AT&T Reply Comments at 18 

n.59. 

180Ericsson Comments at 23. 

181Motorola 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.’’) 

182See 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. 

183Qualcomm 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. 

184NPSTC Comments at 12–13. 

185See Second FNPRM, 23 FCC Rcd at 8079–80 

para. 86. 

186Ericsson 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. 

187To 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. 

188See 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.’’). 

189See 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 

Continued 

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

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

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: 

• The declaration of a state of 

emergency by the President or a state 

governor. 

• The issuance of an evacuation order 

by the President or a state governor 

impacting areas of significant scope. 

• 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. 

• 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. 

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 


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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. 

190PSST 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. 

191Second Report and Order, 22 FCC Rcd at 

15448 ¶ 450. 

192 Id. at 15442 ¶ 428. 

193 47 U.S.C. 337(a)(1), (f)(1)(A). 

194Second Report and Order, 22 FCC Rcd at 

15437–38, para. 416. 

195 47 U.S.C. 337(a). 

196See, e.g., MetroPCS Comments at 14–16. 

197See Second Report and Order, 22 FCC Rcd at 

15436–43 paras. 412–430. 

198See id. at 15437–41 paras. 413–25. 

199See 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. 

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

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. 

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. 

(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

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, 


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200 47 U.S.C. 337(a)(1). 

201Second Report and Order, 22 FCC Rcd at 

14339 para. 419. 

202Second Report and Order, 22 FCC Rcd at 

15433 para. 405. 

203 Id. 

204 Id. at 15434 para. 406. 

205 Id. at 15426 para. 383. 

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

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

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

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. 

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. 

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: 

• 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). 

• 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). 

• 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. 

• 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. 

• Security and encryption consistent 

with state-of-the-art technologies.203

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

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. 

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

99. Further, the Commission sought 

comments on other specifications the 

Commission required of the network, 

including: 

• 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; 

• 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.); 


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209Second Report and Order,, 22 FCC Rcd. at 

15433–34 para. 405. 

210Second FNPRM, 23 FCC Rcd at 8074 para. 70. 

211Second FNPRM, 23 FCC Rcd at 8074–79 paras. 

71–83. 

212APCO Comments at 26. 

213AT&T Comments at 9. 

214PSST Comments at 29. 

215PSST Comments at 29. 

216Addendum to PSST Comments. 

217The 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. 

218AT&T Comments at 2; MetroPCS Comments at 

5; Motorola Comments at 7–9; Sprint Nextel 

Comments at 13; VerizonWireless Comments at 3. 

219Motorola Comments at 7. 

220APCO Comments at 6. 

221See 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). 

222AT&T Reply Comments at 18. 

223AT&T Reply Comments at 18; AT&T 

Comments at 10; Ericsson Comments at 14–15; 

• Operational control of the network 

by the Public Safety Broadband 

Licensee to the extent necessary to 

ensure public safety requirements are 

met; and 

• 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

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

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

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. 

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. 

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 


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Verizon Wireless Comments at 16–18; AT&T Reply 

Comments at 18. 

224AT&T Reply Comments at 18–19. 

225ALU Comments at 6. 

226See, 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). 

227Tyco Comments at 7. 

228AT&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). 

229See 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. 

230See, 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 

* * * .’’). 

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-ofthe-art technologies reasonably made 

available in the commercial marketplace 

with features beneficial to the public 

safety community. 

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. AlcatelLucent 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. 

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. 

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 postauction, 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 postbidding 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 


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231See, e.g., NYPD Comments at 10 (‘‘Regional 

interoperability can be achieved by adapting a 

common air interface and operating on a common 

frequency band.’’). 

232The Commission does not, however, propose 

to require that such roaming arrangements extend 

to commercial services. 

233APCO Comments at 10. 

234The Commission intends to include voice 

service presently conducted on VHF, UHF. 

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. 

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. 

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. 

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. 

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 


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235Any gateway-based access service necessarily 

assumes a public safety network in place providing 

radio coverage on the desired frequencies in the 

area of operation. 236State of Florida, Department of Management 

Services, Wireless Voice Services, State Term 

Contract #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. 

237State 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. 

239See, e.g., Televate Comments at 10, PSST 

Comments Appendix C at 3, Peha Comments at 13. 

240PSST Comments, Attach. C at 3. See also PSST 

Comments at 34 n.72. 

241See Washington Comments at 1; Mississippi 

Comments at 1; Comcentric Comments at 4; 

Continued 

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-totalk 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. 

TABLE 1—SURVEY: SERVICE RATES FOR WALKIE TALKIE/PUSH-TO-TALK SERVICE

Contracting entity/authority Wireless operator Service plan Monthly 

service rate 

State of Florida ......................... Verizon Wireless ...................... Basic Push to Talk (Florida Plan) .............................................. $10.00 236

State of New York .................... Verizon Wireless ...................... America’s Choice for Business Plan—Push to Talk Option ...... 8.10 237

Sprint Nextel ............................ Unlimited Nextel Group Walkie-Talkie ....................................... 7.50 238

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. 

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. 

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


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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. 

242MSV Comments at i–ii. 

243See, e.g. MSV Comments at 21. 

244MSV Comments at 9–10. 

245See 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. 

246Public Safety Spectrum Trust Comments, 

Attachment C ‘‘Shared Wireless Broadband 

Network Technical Analysis’’ Table 1–B. 

247See 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. 248Elsewhere 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. 

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

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. 

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 

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 


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249U.S. Cellular ex parte of August 29, 2008, 

proposing various amendments to the PSST 

proposed technical requirements. 

250See Second FNPRM, 23 FCC Rcd at 8131; 

Second Report and Order, 22 FCC Rcd at 15434 

para. 405. 

251Wireless RERC Comments at 15. 

252Peter G. Cook Consultancy, Inc., Comments at 

7. 

253Region 33 Comments at 10. 

254PSST Comments Attachment C, at 8; NPSTC 

Comments at 55. 

255Leap Wireless Comments at 12. 

256Ericsson Comments at 22–23. 

257Comments of Sprint Nextel Corporation at 11. 

258See id., 22 FCC Rcd at 15417 para. 358. 

259See 47 CFR 90.542(a)(5), (b). 

260This requirement had initially been imposed 

on Upper 700 MHz C and D Block licensees to 

protect public safety narrowband licensees from 

interference. 

261Petition for Reconsideration of Verizon 

Wireless, WT Docket No. 06–150 (filed June 14, 

2007) (Verizon Petition). 

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. 

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. 

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. 

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. 

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 


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262NPSTC Comments at 46–47. 

263Comments of Consumer Equipment 

Association at 6. 

264The 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. 

265The 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. 

266See Second Report and Order, 22 FCC Rcd at 

15452 para. 464. 

267Second Report and Order, 22 FCC Rcd at 

15445 para. 437. 

268 Id. at 15446 para 440. 

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

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/m2 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. 

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. 

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. 

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

133. Certain other requirements were 

imposed to further ensure coverage of 

highways and certain other areas such 


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269See id. at 15445 para. 438–15446 para. 440. 

270 Id. at 15445 para. 437. 

271 Id. at 15446 para. 440. 

272 Id. at 15450 para. 457. 

273 Id. at 15450 para. 458. 

274 Id. 

275Second 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). 

278 Id. at 8082 para. 94. 

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

280 Id. at 8083 para. 98. 

281 Id. at 8083–84 para. 99. 

282 Id. at 8084 para. 100. 

283AT&T Comments at 14; Sprint Nextel 

Comments at 2, 14–15; US Cellular Comments 21. 

284Leap Comments at 13; NTCH Comments at 9; 

SouthernLINC Reply Comments at 7. 

285ACT 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. 

286CEA Comments at 3; Ericsson Comments at 26; 

Motorola Comments at 13; Qualcomm Comments at 

11; Motorola Reply Comments at 4. 

287ComCentric 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. 

288Council Tree Comments at 14. 

as incorporated communities with a 

population in excess of 3,000.269 The 

Commission concluded that these buildout 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

134. In addition to establishing 

performance requirements and a tenyear 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. 

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. 

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. 

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 coextensive with any extended term the 

Commission may adopt for the D 

Block.280

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

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 


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289AASHTO 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. 

290Bazelon Comments at 14; Newman Comments 

at 4; Pela Comments at 5. 

291ADA County Sheriff’s Office Comments at 2; 

Philadelphia Comments at 2. 

292AT&T Comments at 14. 

293 Interisle Comments at 6. 

294See 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. 

295Northrop Grumman Comments at 5; Northrop 

Grumman Reply Comments at 1. 

296Northrop Grumman Comments at 5. 

297Televate Comments at 9. 

298Space Data Reply Comments at 2. 

299Leap Comments at 13. 

300Council Tree Reply Comments at 14. 

301SouthernLINC Reply Comments at 7. 

302NRPC Comments at 4; RPC 6 Comments at 2; 

RPC 33 Comments at 18. 

303NRPC Comments at 4. 

304RPC 6 Comments at 2. 

305RPC 33 Comments at 18. 

306 306 PSST Comments at 5; NENA Comments at 

2; NPSTC Comments at 12. 

307Testimony 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. 

310Ericsson Comments at 26. 

311Council Tree Comments at 19. 

312Wirefree Comments at 15. 

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

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

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. 

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

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. 

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

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-oflicense 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

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 


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313PSST Comments at 34. 314AASHTO Comments at 11. 315APCO Comments at 30. 316NENA Comments at 2. 317Leap Comments at 13; Leap Reply Comments 

at 9. 318Ericsson Comments at 28. 319Comcentric Comments at 4. 

320See Appendix B (listing the minimum 

coverage requirements at the end of fifteen years for 

each of the regions). 

321See Carlson Testimony at 2–3. 322See AT&T Comments at 25. 323See, 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. 324See Space Data Comments at Exhibit A. 325See 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). 

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 buildout requirement to a 15-year license 

term’’ rather than the current 10 year 

license term.316

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

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. 

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 


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326See Carlson Testimony at 2, 8 & n.5. 

327See 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’’). 

328Second Report and Order, 22 FCC Rcd at 

15351 para. 162 (discussing performance 

requirements for REAG licenses, i.e., C Block). 

329Both 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. 

330Ericcson Comments at 26. 

331See, e.g., PSST Comments at 34. 

332See Leap Comments at 13; Council Tree Reply 

Comments at 14. 

333The 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. 

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. 

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. 

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-theart 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. 

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 


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334See Appendix B. 

335See 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.). 

336As 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. 

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

338See 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.’’). 

339See, 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.’’). 

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. 

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 nonterrestrial 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

156. To further facilitate public safety 

access to the network in low or zeropopulation 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

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. 

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-youuse’’ 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. 

159. As stated above, the Commission 

also tentatively concludes to revise the 

license term for the D Block license 


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340See, 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. 341See Second Report and Order, 22 FCC Rcd at 

15450 para. 458. 

342 47 CFR 27.14(e). 

343 47 CFR 27.14(e). 

344See Second FNPRM, 23 FCC Rcd at 8083 para. 

98. 

345Elsewhere in this Third FNPRM, the 

Commission similarly proposes extending the 

initial term of the NSA to 15 years. 

346See Second Report and Order, 22 FCC Rcd at 

15449 para. 453. 

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. 

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. 

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 populationbased 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. 

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 recommence 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. 

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. 

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 


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347See, e.g., 22 FCC Rcd at 15426 para. 383, 

15431 para. 396. 

348See, e.g., id. at 15428 para. 386. 

349See id. at 15437–38 ¶¶ 414–17. 

350See id. at 15434 para. 405. 

351See Second FNPRM, 23 FCC Rcd at 8088 para. 

113. 

352See Second FNPRM, 23 FCC Rcd at 8088–89 

para. 115. 

353See Second FNPRM, 23 FCC Rcd at 8088–89 

para. 115 

354AT&T Comments at 16. 

355Ericsson 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). 

356PSST Comments at 11–12. 

357PSST Comments at 13. 

358PSST Comments at 12. 

359PSST Comments at 12. 

360PSST Comments at 12. 

361PSST Reply Comments, Attach. A1 at 6. 

362Second FNPRM, 23 FCC Rcd at 8091–92 para. 

124. 

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

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

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

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

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 


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57784 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

363AT&T Comments at 17. 

364See Second Report and Order, 22 FCC Rcd at 

15437–38, paras. 414–17. See also 47 CFR 90.1407. 

365See Second Report and Order, 22 FCC Rcd at 

15471 para. 530. 

366Letter 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. 

367Letter 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. 

368PSST Comments at 12. 

369The 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. 

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. 

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. 

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. 

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. 

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. 

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: 

• 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. 


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370Second Report and Order at 15427 para. 383. 

371 Id. 

372 Id. at 15426 para. 383. 

373 Id. at 15434 para. 405. 374Second FNPRM, 23 FCC Rcd at 8090, para. 

121. 375 Id. 376Second FNPRM at para. 122. 377Second FNPRM at para. 122. 378Second FNPRM at para. 122. 379Second FNPRM at para. 122. 

380Second FNPRM at para. 123. 

381Second FNPRM at para. 123 

382Second FNPRM at para. 124. 

383Second FNPRM at para. 124. 

384Second FNPRM at para. 124. 

385Second FNPRM at para. 124. 

386Second FNPRM at para. 124. 

• 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. 

• 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. 

• 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. 

• 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

176. The Commission also identified 

several other of the Public Safety 

Broadband Licensee’s responsibilities, 

which included: 

• Coordination of stations operating 

on public safety broadband spectrum 

with public safety narrowband stations, 

including management of the internal 

public safety guard band. 

• 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. 

• 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. 

• 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

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

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

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

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

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 


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387Second FNPRM at para. 124. 

388A mobile virtual network operator is a nonfacility-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). 

389Second FNPRM, 23 FCC Rcd at 8092, at para. 

125. 

390PSST Comments at 10. 

391PSST Comments at 11–12 (citing 47 CFR 

1.9010, 1.9020 and 90.1440). 

392PSST Comments at 12 (citing Second FNPRM 

at para. 115; Appendix, Section II). 

393PSST Comments at 12. 

394PSST Comments at 14 (citing 47 CFR 90.179). 

395PSST Comments at 14. 

396PSST Comments at 14. 

397PSST Comments at 15. 

398PSST Comments at 15. 

399PSST 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. 

400PSST 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. 

401PSST Comments at 16 n.30. 

402PSST Comments at 16. 

403PSST Comments at 17. 

404See PSST Reply Comments, Attachment A. 

405See PSST Reply Comments, Attachment A, at 

9. 

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

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

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

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 nonprofit, 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

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

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

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 


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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. 

407APCO Comments at 34. 

408APCO Comments at 34. 

409APCO Comments at 34–35. 

410APCO Comments at 35. 

411APCO Comments at 35. 

412APCO Comments at 35. 

413APCO Comments at 35–37. 

414AT&T Comments at 16. See also Reply 

Comments of AT&T at 17–18. 

415AT&T Comments at 16–17. 

416AT&T Comments at 17. 

417AT&T Comments at 17 (citing Second Report 

and Order at para. 405). 

418AT&T Comments at 17. 

419AT&T Comments at 17–18. 

420AT&T Comments at 18. 

421AT&T Reply Comments at 18. 

422AT&T Comments at 21–22. See also AT&T 

Reply Comments at 16. 

423Big Bend Comments at 3. 

424Big Bend Comments at 3. 

425Big Bend Comments at 3. 

426See 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. 

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

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

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

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-today 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

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

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

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-today, 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 


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427Ericsson Comments at 30. 428Ericsson Comments at 30. 429Ericsson Comments at 30. 430Nextwave Reply Comments at 8. 431Nextwave Reply Comments at 8–9. 432Nextwave Reply Comments at 9. 433Council Tree Comments at 21. 434Council Tree Comments at 21. 435Council Tree Comments at 22. 436Council Tree Comments at 22. 

437See, e.g., Big Bend Telephone Company 

Comments at 3. 

438See generally Promoting Efficient Use of 

Spectrum Through the Elimination of Barriers to 

the Development of Secondary Markets, WT Docket 

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

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 standardsbased technologies to suit their specific 

needs, but direct the PSST to provide 

guidance on coordination of spectrum 

usage, minimum network performance 

requirements, permissible standardsbased 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

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

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. 

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 


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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). 

439See Second Report and Order, 22 FCC Rcd at 

15470, para. 528. 440Cf. 47 CFR 1.2109(c). 

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. 

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. 

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. 


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441 47 CFR 27.1315. 

442APCO Comments at 40. 

443NATOA et al.Comments at 23, PSST 

Comments at 43. 

444TeleCommUnity Comments at 15. 

445Ericsson Comments at 32. 

446PSST Comments at 42. 

447Ericsson Comments at 32. 

448MetroPCS Comments at 7. 

449MetroPCS Comments at 20–23. 

450See 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. 

451See 47 CFR 1.2103(b). 

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. 

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

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

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

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. 

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 


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452This will not always be the case. A postauction 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. 

453PSST Comments at 42. 

454APCO Comments at 38. 

455NPSTC Comments at 10. 

456NATOA et al. Comments at 22. 

457AT&T Comments at 23. 

458AT&T Comments at 23. 

459Council 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. 

460Northrop Grumman Comments at 9. 

461MetroPCS Comments at 34. 

462The 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. 

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. 

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

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

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

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 


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463APCO Comments at 38. 

464Northrop Grumman Comments at 9. 

465Philadelphia Comments at 3–4. 

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. 

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

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

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, 


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466Televate Comments at 5. 

467Televate Comments at 5. 

468Televate Comments at 6. 

469NTCH Comments at 5. 

470NTCH Comments at 5. 

471Leap Comments at 12–13. 

472See, generally, AT&T Comments, Verizon 

Wireless Comments. 

473The 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. 

474Mercatus Center Comments at 3. 

475US Cellular Comments at ii–iii. 

476US Cellular Comments at 21. 

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

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 wouldbe ‘‘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

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

232. AT&T, Verizon Wireless, and 

others promote a non-auction RFP 

approach to achieving the goal of an 

interoperable nationwide network.472

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. 

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

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

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 


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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 publicprivate 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 


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477For 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. 

478For 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. 

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. 

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

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 


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479US 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. 

480RTG Comments at 11. 

481See Second Report and Order at para. 290. 

482Because 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. 

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 longheld 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

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

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

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 


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483NATOA et al. Comments at 21. 

484APCO Comments at 38. 

485CEA Comments at 5. 

486Motorola Comments at 17. 

487Qualcomm Comments at 11–12. 

488AT&T Reply Comments at 12; Verizon 

Wireless Comments at 22. 

489PSST Comments at 43. PSST did not amend 

this position in its Reply Comments. See, generally, 

PSST Reply Comments. 

490PSST Comments at 44–45. 

491Council Tree Communications Comments at 

14. 

492Council Tree Communications Comments at 

16. 

493Cellular South Comments at 2. 

494Cellular South Comments at 3. 

495Leap Comments at 4. 

496Leap Comments at 7. 

497NTCH Comments at 13. 

498PISC Comments at 6–7. 

499RTG Comments at 8–11. 

500As the Commission discuss elsewhere, the 

Commission tentatively conclude that the 

Commission should establish eligibility conditions 

for any advisor to the Public Safety Broadband 

Licensee. 

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

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

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

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

263. Claiming that AT&T, Sprint, TMobile, 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

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

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. 

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 


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501Parties have filed petitions for reconsideration 

of that decision, which remain pending before the 

Commission. See, e.g., PISC Petition for 

Reconsideration at 2. 

502NATOA et al. Comments at 20–21. 

503Ericson Comments at 33. 

504Northrop Grumman Comments at 9. 

505Bazelon Comments at 2. 

506Brusco et al. Comments at 2–4. 

507Brusco et al. Comments at 5. 

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. 

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. 

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

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

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

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. 

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 


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508Appendix E provides proposed minimum 

opening bids for each of the 58 PSRs, which total 

approximately $750 million. 

509NATOA et al. Comments at 21. 

510Council Tree Communications Comments at 

11. 

511Council Tree Communications Comments at 

13. 

512Wirefree Comments at 9–10. 

513Wirefree Comments at 9–11. 

514MetroPCS Comments, passim. 

515MetroPCS Comments at 34–35. 

516MetroPCS Comments at 36. 

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). 

518Because 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. 

519Andrew Seybold Comments at 7. 

520Qualcomm Comments at 11. 

521As 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. 

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. 

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

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

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. 

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

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 


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522AT&T Reply Comments at 21. 

523Andrew Seybold Comments at 4. 

524Andrew Seybold Comments at 5. 

525NTCH Comments at 14. 

526NATOA et al. Comments at 21. 

527US 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. 

528The 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. 

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 interrelatedness 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. 

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 anticollusion 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 anticollusion 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 anticollusion 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. 

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 anticollusion 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 preauction 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. 

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, 


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529Second Report and Order, 22 FCC Rcd at 

15467–71 paras. 517–530. 

530But 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’’). 

531For 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. 

532See 47 CFR 90.1430(b)(1)–(4). 

533See 47 CFR 90.1430(b)(5). 

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. 

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

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

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 buildout 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

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 


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534See 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. 

536California Comments at 7. 

537See APCO Reply Comments at 3 n.2. 

538Alcatel-Lucent Ex Parte at 2. 

539 Id. 

540 Id. 

541NCR 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). 

542The 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. 546As 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)). 

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

295. In an ex parte letter, AlcatelLucent 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 publicprivate 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

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

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

299. While the Commission 

tentatively declines to grant the 

District’s specific requests outlined 

above, the Commission remains 


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547See Second Report and Order at para. 478. 

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

549Second Report and Order at para. 545. 

550 Id. 

551 Id. 

552 Id. 

553Second Report and Order at paras. 405–406, 

546. 

554Second FNPRM at para. 187. 

555 Id. 

556 Id. 

sensitive to the fact that the District has 

expended significant efforts to achieve 

broadband interoperability in the nearterm 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. 

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. AlcatelLucent 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

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 buildout 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

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

306. Comments. In response to the 

Second FNPRM, the Commission 

received some comments on this subject 


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557Motorola Comments at 11. 

558Wireless RERC Comments at 14. 

559Wireless RERC Comments at 15. 

560Cellular South Comments at 3–4. 

561PISC Comments at 7–10. 

562Qualcomm Comments at 11. 

563AT&T Comments at 18; AT&T Reply 

Comments at 10–14. 

564AT&T Comments at 18. 

565 Google Comments at 10; Google Reply 

Comments at 1–4. 

566Coleman Bazelon Comments at 22. 

567Ericsson Comments at 35. 

568CTIA Reply Comments at 8–9. 

569 Verizon Wireless Reply Comments at 19 n.43. 

570Motorola Comments at 7. 

571Second 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). 

574Applicable rules include, but are not limited, 

provisions regarding leasing in Subparts Q and X 

of Part 1 of the Commission’s rules. 

575The specific rule changes the Commission 

proposes are included herein. 

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

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

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

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

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. 

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. 

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: 

(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

In establishing license eligibility rules 

for the 700 MHz public safety band in 

Section 90.523 of the Commission’s 


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578 47 CFR 90.523. 

579 47 CFR 90.523(e). 

580 47 CFR 90.523(a)–(d). 

581Second 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). 

582Second FNPRM, 23 FCC Rcd at 8060 para. 28. 

583Second FNPRM, 23 FCC Rcd at 8060 para. 28. 

584Second FNPRM, 23 FCC Rcd at 8060 para. 28. 

585Second FNPRM, 23 FCC Rcd at 8060–61 para. 

29. 

586Second FNPRM, 23 FCC Rcd at 8061 para. 30. 

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

588Second FNPRM, 23 FCC Rcd at 8061 para. 31 

(citing 47 U.S.C. 337(f)(1)(A)). 

589Second FNPRM, 23 FCC Rcd at 8061 para. 31. 

590Second FNPRM, 23 FCC Rcd at 8061–62 para. 

32. 

591Second FNPRM, 23 FCC Rcd at 8061–62 para. 

32. 

rules the Commission sought to mirror 

these eligibility requirements.578

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

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

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

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. 

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

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 


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592Second FNPRM, 23 FCC Rcd at 8061–62 para. 

32. 

593NPSTC Comments at 17. 

594NPSTC Comments at 17–18. 

595NPSTC 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. 596See, 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. 

597Association of Public-Safety Communications 

Officials-International, Inc. Comments at 8. 

598Association of Public-Safety Communications 

Officials-International, Inc. Comments at 9. 

599National Regional Planning Council 

Comments at 6. See also International Association 

of Fire Fighters Comments at 5. 

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

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

commercial services provided solely by 

the D Block licensee.592

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

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

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: 

(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

Section 337(f)(1) specifies, among 

other criteria, that the sole or principal 


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602 47 U.S.C. 337(f)(1)(A). 

603See American Hospital Association Comments 

at 3; Association of Emergency Medical Technicians 

Comments at 4; Mayo Clinic Comments at 4. 

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. 

605Second FNPRM, 23 FCC Rcd at 8061–62 para. 

32. 

606For 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-bycase, 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. 

607See proposed Section 90.523(a)(1), Appendix 

A. 

608See proposed Section 90.523(b), Appendix A. 

609See proposed Section 90.523(c)(5), Appendix 

A. 

610Second FNPRM, 23 FCC Rcd at 8092 at para. 

126. 

611Association of Public-Safety Communications 

Officials—International, Inc. Comments at 9. 

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. 

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

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). 

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

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 


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612Association 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.’’). 

613Public Safety Spectrum Trust Corporation 

Comments at 18–19. See also National Public Safety 

Telecommunications Council Comments at 18; 

Ericsson, Inc. Comments at 31. 

614Public Safety Spectrum Trust Corporation 

Comments at 19. 

615Rivada Networks Comments at 6. 

616Rivada Networks Comments at 6. 

617See Second Report and Order, 22 FCC Rcd at 

15427 para. 383. 

618See 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). 

620See 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). 

621See 47 CFR 2.103(b). 

622See 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). 

623Association of Public-Safety Communications 

Officials-International, Inc. Comments at 9. 

624See Rivada Networks Comments at 6. 

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

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

627NPSTC 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. 

spectrum capacity for state and local 

governments.’’ 612

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

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 nonFederal 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

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

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. 

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

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 


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629PSST Comments at 17–18. 

630Philadelphia Comments at 6. See also NPSTC 

Comments at 15; Lencioni Comments at 1. 

631Philadelphia Comments at 6. 

632PSST Comments at 18. See also TE M/A–COM 

Comments at 9. 

633NATOA et al. Comments at 18. 

634NRPC 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.’’). 

635See APCO Comments at 13; NPSTC Comments 

at 15. 

636See, e.g., Second Report and Order, 22 FCC 

Rcd at 15431 para. 396. 

637See Second Report and Order, 22 FCC Rcd at 

15421 para. 421. 

638 Id. at 15426 para. 383. 

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

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

641Second FNPRM, 23 FCC Rcd at 8064–65 para. 

41. 

642Second FNPRM, 23 FCC Rcd at 8064–65 para. 

41. 

643Second FNPRM, 23 FCC Rcd at 8064–65 para. 

41. 

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

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

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

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

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

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

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 preand post-auction with commercial 

entities, and if so, what relationships 

should and should not be permitted.640

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 nonprofit 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

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 


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644Second FNPRM, 23 FCC Rcd at 8065 para. 42. 

645Second FNPRM, 23 FCC Rcd at 8065 at para. 

42. 

646See, e.g., 47 U.S.C. 254(c)(1), (h). 

647See, e.g., 47 U.S.C. 614. 

648Second FNPRM, 23 FCC Rcd at 8065 para. 43. 

649Second FNPRM, 23 FCC Rcd at 8065–66 para. 

44. 

650Second FNPRM, 23 FCC Rcd at 8065–66 para. 

44. 

651Second FNPRM, 23 FCC Rcd at 8066 para. 45. 

652NATOA Comments at 14–15 (internal footnote 

omitted). 

653AT&T Comments at 19, 21. See also Eads 

Comments at 1; Lencioni Comments at 2; 

Philadelphia Comments at 5. 

654TeleCommUnity Comments at 11. 

655PSST Comments at 49. 

656PSST Comments at 49. 

657PSST Comments at 49. 

658PSST Comments at 49. 

659PSST Comments at 50. 

660PSST 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)). 

661PSST Comments at 50. 

662PSST Comments at 50–51. 

663PSST Comments at 51. 

664PSST Comments at 51. 

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

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

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

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 preand 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

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 ‘incentivecompatible’ 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

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 


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665PSST Comments at 51. 

666Cyren Call Reply Comments at 6. 

667NPSTC Comments at 21. See also Hanna Reply 

Comments at 2; NASEMSO Reply Comments at 2. 

668APCO Comments at 17. 

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. 

670See 47 CFR 1.2110(c). 

671For purposes of defining ‘‘affiliated’’ and 

‘‘controlling interest,’’ the Commission propose to 

use the definitions contained at 47 CFR 1.2110(c). 

672PSST Comments at 23–24. 

673PSST Comments at 23–24. 

674PSST Comments at 24. 

675APCO Comments at 18. 

676APCO Comments at 18. 

677APCO 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. 

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

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 forprofit advisors. 

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. 

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 postauction activities. The Commission 

seeks comment on this tentative 

conclusion and proposed rule. 

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 nonprofit, 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

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


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678NRPC Comments at 5. 

679Televate Comments at 13. 

680See PSST Comments at 23–24; APCO 

Comments at 18. 

681NENA Comments at 4–5. 

682AT&T Comments at 19. 

683AT&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. 

684PSST Comments at 22. 

685APCO Comments at 18–19. 

686APCO Comments at 19. 

687APCO Comments at 19. 

688Region 33 Comments at 6. 

689Region 33 Comments at 6. 

690See 47 CFR 90.528(g). 

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. 

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

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

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

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. 

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 


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692As 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. 693APCO 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. 

694NPSTC Comments at 20–21. 

695See Public Safety Broadband Authorization 

Act of 2008, H.R. 6055, 110th Cong. (2008). 

696See 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. 

697NATOA et al. Comments at 15. 

698SAI Comments at 13. 

699Hanna Reply Comments at 2–3. 

700 IAFF Comments at 3. 

701See, 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.’’). 

702See 47 U.S.C. 254(e). 

703PSST Comments at 25 (citing 47 U.S.C. 

214(e)). 

704Public Law No. 104–104, § 707, 110 Stat. 56, 

47 U.S.C. 614. 

705See 47 U.S.C. 614(a). 

706See 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). 

budget, and when the Commission 

should require the independent audit. 

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

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

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

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

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

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. 

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 


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707PSST 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. 

709AASHTO Comments at 7. 

710AASHTO Comments at 8. 

711APCO Comments at 17. 

712APCO Comments at 17. 

713NATOA et al. Comments at 15. See also 

Philadelphia Comments at 5. 

714Peha Comments at 10. 

715Peha Comments at 10. 

716APCO Comments at 17. 717APCO Comments at 17. 718APCO 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.’’). 

719Peha Comments at 9–10. 

720Peha 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. 

722The Commission includes any equipment 

manufacturer financing to support the acquisition 

of equipment for public safety users. 

723Second Report and Order, 22 FCC Rcd at 

15448–49 paras. 450–52. 

724Second Report and Order, 22 FCC Rcd at 

15437–39 paras. 414–19, 15441 para. 425. 

725Second Report and Order, 22 FCC Rcd at 

15448 para. 45. 

726Second Report and Order, 22 FCC Rcd at 

15448 para. 450. 

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

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

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

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-commercialprofit principal is not violated.’’ 721

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. 

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

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 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 57815 

727Second Report and Order, 22 FCC Rcd at 

15449 para. 451. 

728Second 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. 

729Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

730Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

731Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

732Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

733Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

734Second FNPRM, 23 FCC Rcd at 8094 para. 132. 

735Second FNPRM, 23 FCC Rcd at 8094–95 para. 

133. 

736Second FNPRM, 23 FCC Rcd at 8094–95 para. 

133. 

737Second FNPRM, 23 FCC Rcd at 8094–95 para. 

133. 

738Second FNPRM, 23 FCC Rcd at 8094–95 para. 

133. 

739AT&T Comments at 20. 

740Peha Comments at 13. 

741Mercatus Comments at 2. 

742PSST Comments at 37. 

743PSST Comments at 37. 

744PSST Comments at 37. 

745PSST Comments at 37. 

746PSST Comments at 36. 

747PSST Comments at 36–37. 

748Northrop Grumman Comments at 8. 

749Northrop Grumman Comments at 8. 

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

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

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 serviceand context-based distinctions, such as 

between voice and advanced data 

services, mission-critical and nonmission-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

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

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 wholesaleonly 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

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

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

382. Televate contended that the 

‘‘maximum service price for priority 

public safety services must be 


jlentini on PROD1PC65 with PROPOSALS2
57816 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

750Televate Comments at 10. 751Televate Comments at 10. 752Eads Comments at 3. 753NTCH Comments at 6. 754NTCH Comments at 6. 755U.S. Cellular Comments at 14, 22. 756California Comments at 5. 757RPC 33 Comments at 5. 

758Wireless RERC Comments at 12–13. 

759APCO Comments at 14. 

760APCO Comments at 14. 

761APCO Comments at 15. 

762APCO Comments at 15. 

763APCO Comments at 16. 

764AT&T Reply Comments at 20; see also 

Northrop Grumman Comments at 7–8; Peha 

Comments at 13; Wireless RERC Comments at 12– 

13. 

765AT&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. 

766See 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. 767See Peha Comments at 13. 768See, e.g., AT&T Comments at 20. 769See Eads Comments at 3. 770See Northrop Grumman Comments at 8. 

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

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

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

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

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

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. 

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. 

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 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 57817 

771See, e.g., General Services Administration, 

Federal Supply Service, Cellular/PCS Services, 

Contract # GS-35F-0119P, available at https:// 

www.gsaadvantage.gov/ref_text/GS35F0119P/

0EA660.1OSTP9_GS-35F-0119P_GSAADVANTAGE

MOD12GS35F0119P040408.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). 

772The 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 # 

GS–35F–0119P, available at https://www.gsa

advantage.gov/ref_text/GS35F0119P/0EA660.

1OSTP9_GS-35F-0119P_GSAADVANTAGEMOD

12GS35F0119P040408.PDF (last viewed on August 

27, 2008) (GSA Verizon Wireless Contract). 

773 GSA Verizon Wireless Contract. 

774The 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. 

775This 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). 

776Under 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). 

777This amount reflects a 15% discount off the 

$39.99 retail rate. 

778This amount reflects a 15% discount off the 

$49.99 retail rate. 

779See 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). 

780New York State Verizon Wireless Contract; 

New York State Sprint Nextel Contract. 

781State 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). 

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

TABLE 2—SURVEY: DISCOUNTED WIRELESS DATA PLANS

Contracting entity Wireless operator Service plan 772

Monthly 

service 

charge 

General Services Administration 773 ............... Verizon Wireless ..... VZAccess (NationalAccess/ ...................................................

BroadbandAccess) .................................................................

$48.59 

Western States Contracting Alliance 774 ......... Verizon Wireless ..... BroadbandAccess for Internet and E-mail ............................. 49.19 775

Sprint PCS ............... Sprint PCS Connection Card Unlimited Usage (applies to 

usage on both 1xRTT and EVDO networks).

49.99 

T-Mobile 776 ............. T-Mobile Total Internet, Unlimited Usage .............................. 33.99 777

T-Mobile Total Internet for Data Cards, Unlimited Usage ..... 42.49 778

AT&T Mobility 779 ..... Public Safety Unlimited Data ................................................. 49.99 

State of New York 780 ...................................... Verizon Wireless ..... VZAccess (NationalAccess/BroadbandAccess) ..................... 48.59 

Sprint Nextel ............ Unlimited Connection Plan EVDO DataLink .......................... 59.99 

Unlimited Connection Plan 1xRTT DataLink ......................... 59.99 

State of Florida 781 .......................................... AT&T Mobility .......... Wireless Data Usage Plan, Unlimited Usage ........................ 43.99 

Sprint ....................... Wireless Data Usage Plan, Unlimited Usage ........................ 44.99 

Verizon Wireless ..... Wireless Data Usage Plan, Unlimited Usage ........................ 52.59 

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. 

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 


jlentini on PROD1PC65 with PROPOSALS2
57818 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

782Second Report and Order, 22 FCC Rcd at 

15421–22 para. 373. 

783Second Report and Order, 22 FCC Rcd at 

15421–25 paras. 373–375. 

784The 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. 

785On 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). 

786Second Report and Order, 22 FCC Rcd at 

15423–26 para. 375. 

787Second Report and Order, 22 FCC Rcd at 

15423–26 para. 375. 

788Second Report and Order, 22 FCC Rcd at 

15423–26 para. 375. 

789Second Report and Order, 22 FCC Rcd at 

15426 paras. 376–77. 790Second FNPRM, 23 FCC Rcd at 8067 para. 48. 791Second FNPRM, 23 FCC Rcd at 8067 para. 48. 792Second FNPRM, 23 FCC Rcd at 8067 para. 49. 793Second FNPRM, 23 FCC Rcd at 8067 para. 49. 794Second FNPRM, 23 FCC Rcd at 8067 para. 50. 

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

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 twothirds 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

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

(i) Articles of Incorporation and ByLaws 

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 


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795Second FNPRM, 23 FCC Rcd at 8067 para. 50. 

796Second FNPRM, 23 FCC Rcd at 8067 para. 50. 

797PSST Reply Comments at 17. See also PSST 

Comments at 47. 

798PSST Comments at 45. 

799PSST Comments at 45–46. 

800PSST Comments at 47. 

801PSST Comments at 46. 

802 IACP Reply Comments at 3. 

803 IACP Reply Comments at 3. 

804 IACP Reply Comments at 3. 

805AASHTO Comments at 11. In this context, 

AASHTO advises against adding a Commission or 

Congressional representative to the Board. Id. 

806Ericsson Comments at 8. 

807See, e.g., IMSA Comments at 11; IMSA Reply 

Comments at 7–8; ICMA Reply Comments at 2; 

NPSTC Reply Comments at 7. 

808APCO Comments at 22. 

809APCO Comments at 22. 

810APCO Comments at 22. 

811APCO Comments at 22. 812APCO Comments at 24. NENA agreed with 

APCO’s recommendations on widening the relevant 

experience of Board members. See NENA 

Comments at 4. 813APCO Comments at 21. 814APCO Comments at 21. 815RPC 33 Comments at 7. 816RPC 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’’). 817NATOA et al. Comments at 15. 818NATOA et al. Comments at 16. 819See 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. 

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

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 nonpublic 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

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

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 threeperson 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

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

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

403. NRPC requested that the 

Commission name it as ‘‘a full voting 


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820NRPC Comments at 6. 

821NRPC Comments at 6. 

822PSST Reply Comments at 16. 

823APCO Comments at 21. 

824Peha Comments at 9. 

825See, e.g., RPC 20 Reply Comments at 11; 

NATOA et al. Reply Comments at 7. 

826AASHTO Reply Comments at 5. 

827See PSST Comments at 46; NPSTC Comments 

at 22; APCO Comments at 21. 

828NPSTC Comments at 22. 

829PSST Comments at 46; APCO Comments at 21. 

830 IMSA Comments at 11. 

831NEMA 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. 

832See National Regional Planning Council at 

http://www.nrpc.us/index.jsp. 

833Second FNPRM, 22 FCC Rcd at 8091 para. 122. 

834See NRPC Comments at 6. 

835APCO Comments at 22. 

836See 47 CFR 90.523(e)(3). 

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

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

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

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. 

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. 

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 


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837APCO Comments at 22. 

838See APCO Comments at 22. 

839See 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). 

840Current executive committee members may be 

elected to positions on the committee other than the 

ones they currently hold. 

841See PSST Comments at 46; APCO Comments 

at 21. 

842See PSST Reply Comments at 16; APCO 

Comments at 21; NATOA et al. Reply Comments at 

7. 

843Sensitive 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. 

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. 

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. 

412. Supermajority Voting. The 

Commission tentatively concludes that 

the Commission will require threefourths 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 threefourths 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 twothirds 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. 

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. 

(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 


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844See Second FNPRM, 23 FCC Rcd at 8068 para. 

51. 

845See Second FNPRM, 23 FCC Rcd at 8068 para. 

51. 

846See Second FNPRM, 23 FCC Rcd at 8068 para. 

51. 

847See Second FNPRM, 23 FCC Rcd at 8068 para. 

51. 

848See Second FNPRM, 23 FCC Rcd at 8066 para. 

48. 

849See Second FNPRM, 23 FCC Rcd at 8066 para. 

48. 

850PSST Comments at 46. 

851PSST Comments at 47. 

852PSST Comments at 48. 

853PSST Comments at 48. 

847See Second FNPRM, 23 FCC Rcd at 8068 para. 

51. 

848See Second FNPRM, 23 FCC Rcd at 8066 para. 

48. 

849See Second FNPRM, 23 FCC Rcd at 8066 para. 

48. 

850PSST Comments at 46. 

851PSST Comments at 47. 

852PSST Comments at 48. 

853PSST Comments at 48. 

854APCO Comments at 20. 

855APCO Comments at 19. 

856APCO Comments at 20, 24. 

857See 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 860RPC 20 Reply Comments at 11–12. See also 

RPC 33 Comments at 7. 

861Second FNPRM, 23 FCC Rcd at 8068 para. 52. 

862Second FNPRM, 23 FCC Rcd at 8068 para. 52. 

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

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

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

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

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 


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863Second FNPRM, 23 FCC Rcd at 8068 para. 52. 

864Second FNPRM, 23 FCC Rcd at 8068 para. 52. 

865Second FNPRM, 23 FCC Rcd at 8068 para. 52. 

866AASHTO 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.). 

867NRPC Comments at 9. 

868NRPC Comments at 9. 

869RPC 33 Comments at 8. 

870Wireless RERC Comments at 6. 

871Rivada Reply Comments at 4. 

872Second FNPRM, 23 FCC Rcd at 8068 para. 53. 

873Second FNPRM, 23 FCC Rcd at 8068 para. 53. 

874Second FNPRM, 23 FCC Rcd at 8068 para. 53. 

875Second FNPRM, 23 FCC Rcd at 8068 para. 53. 

876PSST Comments at 47. See also PSST Reply 

Comments at 16. 

877PSST Reply Comments at 16. 

878PSST Reply Comments at 16. 

879PSST Reply Comments at 16. 

880PSST Reply Comments at 47–48. 

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

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

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

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

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 


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881See, 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. 

882APCO Comments at 24–25. 

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

884Second Report and Order, 22 FCC Rcd at 

15406 para. 322. 

885Second Report and Order, 22 FCC Rcd at 

15412 para. 341. 

886Second Report and Order, 22 FCC Rcd at 

15412 para. 339. 

887Second Report and Order, 22 FCC Rcd at 

15412 para. 339. 

888Second Report and Order, 22 FCC Rcd at 

15406 para. 322. 

889Second Report and Order, 22 FCC Rcd at 

15411 para. 336. 890Second Report and Order, 22 FCC Rcd at 

15411 para. 337. 

891Second Report and Order, 22 FCC Rcd at 

15412 para. 339. 

892Second Report and Order, 22 FCC Rcd at 

15412 para. 341. 

893See Virginia Petition for Reconsideration; 

Pierce Transit Petition for Reconsideration. 

894See Virginia Petition for Reconsideration; 

Pierce Transit Petition for Reconsideration. 

895See National Association of 

Telecommunications Officers and Advisors 

(NATOA) Comments at 9–11; State of Nebraska 

(Nebraska) Opposition at 2; Motorola Comments at 

1–7. 

896See generally Pierce Transit Petition for 

Reconsideration. 

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

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. 

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

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 ‘‘preprogrammed 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

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

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 


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897See generally Virginia Petition for 

Reconsideration. 

898See Second FNPRM, 23 FCC Rcd at 8111 para. 

180. 

899See Second FNPRM, 23 FCC Rcd at 8111 para. 

180. 

900See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 

901See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 

902See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 

903See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 

904See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 905See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 906See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 907See Second FNPRM, 23 FCC Rcd at 8111 para. 

181. 908See Second FNPRM, 23 FCC Rcd at 8111 para. 

182. 909See, 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. 

910PSST Comments at 51–52. 

911PSST Comments at 52. 

912Motorola Reply Comments at 6. 

913Motorola Reply Comments at 6. 

914AASHTO Comments at 13. 

915AASHTO Comments at 13. 

916Second Report and Order, 22 FCC Rcd at 

15410 para. 332. 

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

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

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

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. 

(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

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

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 


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917See PSST Comments at 52. See also Motorola 

Reply Comments at 6; NPSTC Comments at 24. 

918See, 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. 

919PSST Comments at 53. 

920PSST Comments at 53. See also, Motorola 

Reply Comments at 5. 

921PSST Comments at 53. 

922PSST Comments at 53. 

923Ada County Sheriff’s Office Comments at 1. 

924Ada County Sheriff’s Office Comments at 1. 

925Commonwealth of Virginia Comments at 5–6. 

926Pierce Transit Comments at 5–6. 

927Motorola 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. 

928Motorola Comments at 19. 

929NATOA et al. Reply Comments at 9. 

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). 

931See Second Report and Order, 22 FCC Rcd at 

15410 para. 333. 

932See Second Report and Order, 22 FCC Rcd at 

15411 paras. 336, 337; Public Safety and Homeland 

Security Bureau Announces an October 23, 2007 

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. 

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. 

(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

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

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

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

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

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

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 


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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. 

934Motorola June 2007 Ex Parte at 2–3. 

935The Commission review of these certifications 

has identified approximately: 100,658 mobiles, 

6,511 vehicular repeaters, 3,180 control stations, 

and 1,170 base stations. 

936This $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 nonconsolidated 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. 

937To 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. 

938The 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. 

940See, 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. 

942TE M/A–COM Comments at 9. 

943TE M/A–COM Comments at 9. 

944PSST Comments at 52. 

945PSST Comments at 52. 

946RPC 33 Comments at 20. 

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

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. 

(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-bycase’ 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

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

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 


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947 VITA Comments at 5. 948 VITA Comments at 5. 949Second Report and Order, 22 FCC Rcd at 

15406, 15412 para. 339. 

950Second Report and Order, 22 FCC Rcd at 

15406, 15411 para. 336. 

951Second Report and Order, 22 FCC Rcd at 

15406, 15411 para. 337. 

952Second Report and Order, 22 FCC Rcd at 

15406, 15412 para. 339. 

953Second Report and Order, 22 FCC Rcd at 

15406, 15412 para. 339. 

954See PSST Comments at 52; RPC 33 Comments 

at 20. 

955See 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. 

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

958Motorola Comments at 20. 

959Louisiana Comments at 2. 

960Louisiana Comments at 2. 

manner.’’ 947 According to VITA, such 

approach would result in ‘‘a congruent 

process that allows for uniform 

deployment, band relocation and 

relocation funding.’’ 948

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

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

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 cutoff 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. 

(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

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

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 


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961APCO Comments at 39. 

962APCO Comments at 39. 

963APCO Comments at 39. 

964NPSTC Reply Comments at 15. 

965NPSTC Reply Comments at 15. 

966Second Report and Order, 22 FCC Rcd at 

15336 para. 120, 15411 para. 336. 

967Second Report and Order, 22 FCC Rcd at 

15413–414, 15426–427 paras. 343–44, 383. 

968See, e.g., PSST Comments at 53. 

969Second Report and Order, 22 FCC Rcd at 

15411 para. 338. 

970Second Report and Order, 22 FCC Rcd at 

15411 para. 338. 

971Second Report and Order, 22 FCC Rcd at 

15412 para. 340. 

972Second Report and Order, 22 FCC Rcd at 

15412 para. 340. 

973Second Report and Order, 22 FCC Rcd at 

15412 para. 340. 

974Second 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 

Continued 

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

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. 

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

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 PreCoordination 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

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

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 


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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. 

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). 

976 Id. 

977 47 CFR 1.200 et seq. 

978See 47 CFR 1.1206(b)(2). 

979 47 CFR 1.1206(b). 

980 47 CFR 1.415, 1.419. 

981See Electronic Filing of Documents in 

Rulemaking Proceedings, 63 Fed. Reg. 24121 (May 

1, 1998). 

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. 

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. 

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. 

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

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

• 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. 

• 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 email to ecfs@fcc.gov and include the 

following words in the body of the 

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

directions will be sent in response. 

• 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. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered 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. 

• 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. 

• 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: Nes ̧e Guendelsberger, 

Wireless Telecommunications Bureau, 

445 12th Street, SW., Washington, DC 

20554, or by e-mail to 

nese.guendelsberger@fcc.gov; and Jeff 

Cohen, Public Safety and Homeland 

Security Bureau, 445 12th Street, SW., 

Washington, DC 20554, or by e-mail to 

jeff.cohen@fcc.gov. Parties shall also 

serve one copy with the Commission’s 


jlentini on PROD1PC65 with PROPOSALS2
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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 

fcc@bcpiweb.com. 

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 fcc@bcpiweb.com. 

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 

FCC504@fcc.gov 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 email: FCC504@fcc.gov; 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: 

§ 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: 

§ 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: 


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PSR No. 

Geographical boundaries of public safety regions (PSRS) 

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). 


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PSR No. 

Geographical boundaries of public safety regions (PSRS) 

States, counties and territories included in regions 

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: 

§ 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: 

§ 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 § 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 populationbased 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 § 27.1305. 

(4) A build-out schedule must be 

specified in the Network Sharing 

Agreement consistent with the 

requirements in this section. The buildout 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 


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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 § 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: 

§ 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 

§ 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 

§ 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 

§ 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 

§ 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: 

§ 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 § 1.2110(b)(1)(iv)(A) of this 

chapter. 

7A. Section 27.1303 is amended by 

revising paragraph (e) to read as follows: 

§ 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 

§ 27.1317(e). 

* * * * * 

7B. Section 27.1305 is revised to read 

as follows: 

§ 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 

§ 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 


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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 § 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 


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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 § 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 § 27.1305—APPLICATIONS AND SERVICES QOS ATTRIBUTES

Application/service Description Data rate 

File transfer ..................................... FTP and general data upload/download ............................................... Greater than 256kb/s. 

E-mail .............................................. Both Web based and Entity Hosted E-Mail Service ............................. Less than 16kb/s. 

Web browsing ................................. Intranet, extranet, and internet .............................................................. Greater than 32kb/s. 

Mobile voice .................................... Equivalent to current commercial mobile voice ..................................... Minimum 15 kb/s. 

Push to talk (PTT) voice ................. Commercial grade PTT/PoC offerings with group call, alerting, and 

monitoring capability.

4–25 kb/s. 

Indoor video .................................... Video that is transmitted from inside a building .................................... 20–384 kb/sF. 

Outdoor video .................................. Video that is transmitted from the street ............................................... 32–384 kb/s. 

Location services ............................ All location based services .................................................................... Less than 16kb/s. 

Database transactions .................... Remote databases access both under the entities’ direct control as 

well as databases that are local.

Less than 32kb/s. 

Messaging ....................................... Instant messaging, SMS, and Push to X services ................................ Less than 16kb/s. 

Network Operations data ................ Network operational and maintenance data including over the air programming and remote client management.Less than 32kb/s. 

Dispatch data .................................. Data as it relates to computer aided dispatching .................................. Less than 64kb/s. 

Generic traffic .................................. General category for traffic that does not fall within any of the categories described above, and that generates less than 64kb of 

data per second.

Less than 64kb/s. 

Telemetry ........................................ Remote measurement and reporting of information for radio devices, 

vehicles, and sensor data.

70–120 kb/s. 

Virtual Private Networking ............... Secure remote access to entity LAN and WAN environments ............. 64–256 kb/s. 


jlentini on PROD1PC65 with PROPOSALS2
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TABLE 2 TO § 27.1305—DATA PROPAGATION AND CAPACITY PARAMETERS

Morphology 

Cell 

coverage 

area 

reliability 

(%) 

Sector 

loading 

factor 

(%) 

Forward link 

throughput 

on-street 

single user 

average 

cell-edge 

(kbps) 

Reverse link 

throughput 

on-street 

single user 

average 

cell-edge 

(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 § 27.1305—VOICE PROPAGATION AND CAPACITY PARAMETERS

Morphology 

In-building 

penetration 

margin 

(dB) 

Cell coverage 

area reliability 

(%) 

Sector loading 

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: 

§ 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: 

§ 27.1310 Network sharing agreement. 

* * * * * 

(c) The definition of ‘‘emergency’’ for 

purposes of emergency priority access, 

as described in § 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 


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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 § 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 § 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: 

§ 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 § 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 

§ 1.2109(c) of this chapter, and the 

winning bidder will be liable for the 

default payment specified in 

§ 1.2104(g)(2) of this chapter and 

§ 27.501(b)(3). In all other circumstances 

in which the parties do not submit 

executed copies of a Commissionapproved 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: 

§ 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 buildout 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: 

§ 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: 

§ 90.7 Definitions. 

* * * * * 


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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: 

§ 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: 

§ 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: 

§ 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: 


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§ 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 § 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 § 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 

§ 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 § 90.1432. 

16. Section 90.1405 is revised to read 

as follows: 

§ 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 

§ 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 § 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 


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(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 § 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; 


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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 § 90.1405—APPLICATIONS AND SERVICES QOS ATTRIBUTES

Application/service Description Data rate 

File transfer ........................................... FTP and general data upload /download ........................................................... Greater than 256kb/s. 

Email ..................................................... Both Web based and Entity Hosted E-Mail Service .......................................... Less than 16kb/s. 

Web browsing ....................................... Intranet, extranet, and internet ........................................................................... Greater than 32kb/s. 

Mobile voice .......................................... Equivalent to current commercial mobile voice ................................................. Minimum 15kb/s. 

Push to talk (PTT) voice ....................... Commercial grade PTT / PoC offerings with group call, alerting, and monitoring capability.4–25kb/s. 

Indoor video .......................................... Video that is transmitted from inside a building ................................................. 20–384kb/sF. 

Outdoor video ....................................... Video that is transmitted from the street ............................................................ 32–384kb/s. 

Location services .................................. All location based services ................................................................................. Less than 16kb/s. 

Database transactions .......................... Remote databases access both under the entities’ direct control as well as 

databases that are local.

Less than 32kb/s. 

Messaging ............................................. Instant messaging, SMS, and Push to X services ............................................ Less than 16kb/s. 

Network Operations data ...................... Network operational and maintenance data including over the air programming and remote client management.Less than 32kb/s. 

Dispatch data ........................................ Data as it relates to computer aided dispatching. ............................................. Less than 64kb/s. 

Generic traffic ........................................ General category for traffic that does not fall within any of the categories described above, and that generates less than 64kb of data per second.Less than 64kb/s. 

Telemetry .............................................. Remote measurement and reporting of information for radio devices, vehicles, and sensor data.70–120 kb/s. 

Virtual Private Networking .................... Secure remote access to entity LAN and WAN environments .......................... 64—256 kb/s. 

TABLE 2 TO § 90.1405—DATA PROPAGATION AND CAPACITY PARAMETERS

Morphology Cell coverage 

area reliability 

Sector loading 

factor 

Forward link throughput on-street single 

user average cell-edge 

Reverse link throughput on-street single 

user average celledge 

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 § 90.1405—VOICE PROPAGATION AND CAPACITY PARAMETERS

Morphology In-building penetration margin Cell coverage 

area reliability 

Sector loading 

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: 

§ 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. 


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(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: 

§ 90.1410 Network sharing agreement. 

* * * * * 

(c) The definition of ‘‘emergency’’ for 

purposes of emergency priority access, 

as described in § 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 § 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 § 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: 

§ 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 § 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 

§ 1.2109(c) of this chapter, and the 

winning bidder will be liable for the 


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default payment specified in 

§ 1.2104(g)(2) of this chapter and 

§ 27.501(b)(3). In all other circumstances 

in which the parties do not submit 

executed copies of a Commissionapproved 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: 

§ 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 buildout 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: 

§ 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 

Number 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, 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). 


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Number States, counties and territories included in regions 

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

PSR PSR name Total pops* Land area 

(SqM)* Density 

Coverage required at end 

of 15th year 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, DC; Virginia—Northern ....... 7,831,327 12,070 648.8 

56 ............ Guam and the Northern Mariana Islands ................. 224,026 389 575.9 

28 ............ New Jersey, Pennsylvania, Delaware ...................... 10,526,480 22,729 463.1 Tier 2: 94% 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, Vermont, Massachusetts, 

Rhode Island, Connecticut.

13,922,517 62,809 221.7 

40 ............ Texas—Dallas ........................................................... 6,503,125 30,589 212.6 

11 ............ Hawaii ....................................................................... 1,211,537 6,423 188.6 


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PERFORMANCE TIERS BY PUBLIC SAFETY REGION—Continued 

PSR PSR name Total pops* Land area 

(SqM)* Density 

Coverage required at end 

of 15th year of license 

term 

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). 


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982 Illinois’ narrowband certification for Region 

13 also includes narrowband facilities in Region 54 

(Chicago Metro area). 

983Region 19 (New England) includes six states: 

Maine, New Hampshire, Vermont, Massachusetts, 

Rhode Island, and Connecticut. 

984New 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). 

Appendix C 

Relocation Costs By 700 MHz RPC 

Region 

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 

• 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 

• 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: 

• The declaration of a state of emergency 

by the President or a state governor. 

• The issuance of an evacuation order by 

the President or a state governor impacting 

areas of significant scope. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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 


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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. 

Performance Requirements 

• 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): 

• 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; 

• 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 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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 

• 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. 

• 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. 

• 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. 

• 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: 

• 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. 

• 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. 

• 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. 

• 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. 

• 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. 

• Responsibility to facilitate negotiations 

between the D Block license winner and local 

and state entities to build out local and stateowned lands. 

• 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. 

• 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. 

• 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. 

• 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. 

• 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 

• The NSA must include a schedule of fees 

for public safety access to broadband network 

services. 

• Public safety users of the D Block public 

safety spectrum will be charged a base rate 

of $[—.—] per user per month. 

• 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 

• 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. 

• The NSA should further specify the 

relevant terms and conditions under which 

roaming will be provided. 


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Dispute Resolution Process 

• 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. 

• 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 

• The D Block licensee must provide to the 

Public Safety Broadband Licensee monthly 

network usage statistics. 

• The D Block licensee may not 

discontinue service to public safety entities 

without the Commission’s approval. 

• 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 

• 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. 

• The Public Safety Broadband Licensee 

must submit a full financial accounting on a 

quarterly basis. 

• 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. 

Æ 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. 

• 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. 

• 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. 

• 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 

• Interoperability: 

Æ 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. 

Æ All networks are required to support 

roaming of public safety users from other 

networks. 

Æ 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. 

• 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

Area Population MHz Minimum 

opening bid 

Nationwide ......................................................... 285,620,445 10 $750,000,000 

REGIONAL LICENSES

PSR Population 

Population 

density/ 

square mile 

Density 

category* MHz MHz*pops $/MHz*pop Minimum 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, Vermont, 

Massachusetts, Rhode Island, 

Connecticut.

13,922,517 221.7 B 10 139,225,170 0.30 41,972,000 

6 ....... California—North ................................. 13,234,136 133.1 B 10 132,341,360 0.30 39,896,000 

20 ..... Maryland; Washington, DC; Virginia— 

Northern.

7,831,327 648.8 A 10 78,313,270 0.45 35,413,000 

33 ..... Ohio ..................................................... 11,353,140 277.3 B 10 113,531,400 0.30 34,226,000 

28 ..... New Jersey, Pennsylvania, Delaware 10,526,480 463.1 B 10 105,264,800 0.30 31,734,000 

21 ..... Michigan .............................................. 9,938,444 175.0 B 10 99,384,440 0.30 29,961,000 


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REGIONAL LICENSES—Continued 

PSR Population 

Population 

density/ 

square mile 

Density 

category* MHz MHz*pops $/MHz*pop Minimum opening bid** 

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 Mariana Islands.224,026 575.9 D 10 2,240,260 0.02 45,000 

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) 


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