[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32131-32138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15870]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 0906231085-91085-01]


Relocation of Federal Systems in the 1710-1755 MHz Frequency 
Band: Review of the Initial Implementation of the Commercial Spectrum 
Enhancement Act

AGENCY: National Telecommunications and Information Administration.

ACTION: Notice of Inquiry.

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SUMMARY: The U.S. Department of Commerce's National Telecommunications 
and Information Administration (NTIA) seeks comment on the initial 
implementation of the Commercial Spectrum Enhancement Act (CSEA).\1\ 
The CSEA, which was enacted in 2004, created an innovative funding 
mechanism allowing Federal agencies to recover the costs of relocating 
their radio systems from the proceeds of the auction of the radio 
spectrum vacated. The first auction under the CSEA, that of the 1710-
1755 MHz band, concluded in 2006, providing new opportunities for 
Advanced Wireless Services (AWS-1). Over two years into the relocation 
of Federal systems from this band, NTIA requests information on what 
implementation steps should be retained as best practices, what lessons 
have been learned, and what, if any, improvements should be made in 
future relocations under the CSEA.
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    \1\ Title II, Pub. Law No. 108-494, 118 Stat. 3986, 47 U.S.C. 
Sec. Sec.  309 (j) (3), 921, 923, 928 and note (annual report 
requirement).

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DATE: Comments are requested on or before August 21, 2009, 2009.

ADDRESSES: Parties may mail written comments to Gary Patrick, Spectrum 
Engineering and Analysis Division, Office of Spectrum Management, 
National Telecommunications and Information Administration, U.S. 
Department of Commerce, 1401 Constitution Avenue, N.W., Room 6725, 
Washington, DC 20230, with copies to Gina Harrison, Esq., Office of 
Spectrum Management, National Telecommunications and Information 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue, 
N.W., Room 4099, Washington, DC 20230. Alternatively, comments may be 
submitted in Microsoft Word format electronically to 
<a href="/cdn-cgi/l/email-protection#92f1e1f7f3fef7e1e1fdfce1fef7f3e0fcf7f6d2fce6fbf3bcf6fdf1bcf5fde4"><span class="__cf_email__" data-cfemail="11726274707d7462627e7f627d7470637f7475517f6578703f757e723f767e67">[email protected]</span></a>. Comments will be posted on NTIA's 
website at http://www.ntia.doc.gov and regulations.gov.

FOR FURTHER INFORMATION CONTACT: Gary Patrick, National 
Telecommunications and Information Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue, N.W., Room 6725, Washington, DC 
20230 or Gina Harrison, Esq., National Telecommunications and 
Information Administration, U.S. Department of Commerce, 1401 
Constitution Avenue, N.W., Room 4099, Washington, DC 20230; telephone 
(202) 482-9132 or (202) 482-2695; or email: <a href="/cdn-cgi/l/email-protection#3b5c4b5a4f495258507b554f525a155f5458155c544d"><span class="__cf_email__" data-cfemail="94f3e4f5e0e6fdf7ffd4fae0fdf5baf0fbf7baf3fbe2">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#a7d5cfc6d5d5ced4c8c9e7c9d3cec689c3c8c489c0c8d1"><span class="__cf_email__" data-cfemail="d3a1bbb2a1a1baa0bcbd93bda7bab2fdb7bcb0fdb4bca5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Overview

    NTIA decided to reallocate the 1710-1755 MHz band to commercial use 
in

[[Page 32132]]

1995.\2\ However, the decision could not be implemented until 2004, 
when enactment of the CSEA provided a streamlined means to pay for the 
relocation of Federal systems. The CSEA created the Spectrum Relocation 
Fund (SRF).\3\ The SRF uses the proceeds from the commercial auction of 
relinquished spectrum to reimburse Federal agencies required to vacate 
the spectrum.
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    \2\ NTIA, Spectrum Reallocation Final Report: Response to Title 
IV-Omnibus Budget Reconciliation Act of 1993 (Feb. 1995), available 
at http://www.ntia.doc.gov/openness/contents.html.
    \3\ CSEA, Sec.  204, 118 Stat. 3994, 47 U.S.C. Sec.  928.
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    The CSEA and the SRF it created help solve a recurrent spectrum 
management dilemma, the problem of clearing incumbents from a portion 
of the spectrum. Such transition issues can stymie efforts to bring 
new, improved uses of spectrum into service.\4\ By enhancing the 
efficiency of the Federal relocation process, the CSEA provides three 
concurrent benefits. Commercial firms and consumers benefit from 
expediting the process for freeing additional radio frequencies for new 
or expanded services. Federal agencies benefit from the funds the SRF 
provides for state-of-the-art systems they will use in new spectrum 
locations. Finally, the CSEA assists in the Federal budget process by 
providing that unused spectrum auction receipts revert to the 
Treasury's general fund.
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    \4\ ``800 MHz Transition May Drag on Until 2012, Some Say,'' TR 
Daily (Feb. 17, 2009); Order, Improving Public Safety Communications 
in the 800 MHz Band, WT Docket No. 02-55, FCC 08-253 (rel. Oct. 30, 
2008), available at 2008 Lexis 7625; Order, Improving Public Safety 
Communications in the 800 MHz Band, WT Docket No. 02-55, FCC 09-35 
(Apr. 20, 2009), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-35A1.doc.
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    On September 18, 2006, the Federal Communications Commission (FCC) 
concluded the first auction conducted under the CSEA, the AWS-1 
auction, including 1710-1755 MHz. The auction of the Federal spectrum 
raised $6.85 billion out of $13.7 billion in net winning bids from 
Federal and non-Federal auctioned spectrum combined. Opening the band 
to commercial use will spur new wireless services.
    In March 2007, the Office of Management and Budget (OMB), in 
consultation with NTIA and based on Federal agency estimates of 
relocation costs, transferred slightly over $1 billion from the SRF to 
12 Federal agencies to relocate their systems out of the 1710-1755 MHz 
band.\5\ This first implementation of the CSEA has been ongoing for 
over two years. NTIA takes this opportunity to solicit public comment 
on how the CSEA has functioned so far.
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    \5\ There are 1,990 frequency assignments associated with the 
Federal systems to be relocated from the 1710-1755 MHz band. The 12 
relocating agencies are Department of Agriculture (USDA), Department 
of Defense, Department of Energy, Federal Aviation Administration, 
Department of Homeland Security, Department of Housing and Urban 
Development, Department of the Interior, Department of Justice, 
National Aeronautics and Space Administration, Department of the 
Treasury, Tennessee Valley Authority, and United States Postal 
Service. As of December 2008, Federal agencies had spent 
$174,126,082 from the SRF. NTIA, 1710-1755 MHz Band Relocation: 
Second Annual Progress Report (Mar. 2009) (``Second Annual 
Relocation Report''), available at http://www.ntia.doc.gov/reports/Final2ndAnnualRelocation Report20090416.pdf.
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    This Notice of Inquiry (NOI) first invites interested parties to 
comment on the overall performance of the Federal relocation process. 
The NOI then divides the issues among those arising before and after 
the auction. Issues regarding the adequacy and transparency of data, 
sufficiency of communications, guidance with respect to the relocation 
process, and NTIA's role, arise both ``Pre-Auction'' and ``Post-
Auction.'' The Post-Auction section addresses a number of additional 
issues, including ``early entry'' of licensees prior to a Federal 
agency's scheduled date to vacate the band. In some cases, ``Pre-
Auction'' events may have had ``Post-Auction'' effects. In other cases, 
``Post-Auction'' circumstances may shed light on the value of pre-
auction information and on the level of bidding. Thus, NTIA asks 
commenters to analyze CSEA implementation from both cause-and-effect 
and ``feedback'' perspectives.

Chronology

    The CSEA requires the FCC to notify NTIA at least 18 months in 
advance of an auction of eligible frequency bands.\6\ In December 2004, 
the FCC notified NTIA that the auction of the 1710-1755 MHz band would 
begin as early as June 2006.\7\
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    \6\ CSEA, Sec.  202, 118 Stat. 3992, 47 U.S.C. Sec.  923 (g) (4) 
(A).
    \7\ Letter from Michael K. Powell, Chairman, Federal 
Communications Commission to the Honorable Michael D. Gallagher, 
Assistant Secretary for Communications and Information, and 
Administrator, National Telecommunications and Information 
Administration (Dec. 29, 2004).
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    Under the CSEA, at least six months prior to the auction, NTIA, on 
behalf of the Federal agencies and after review by OMB, must provide 
the FCC and Congress the estimated costs and time lines for relocating 
Federal agencies from affected spectrum.\8\ NTIA complied with these 
requirements in December 2005.\9\
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    \8\ CSEA, Sec.  202, 118 Stat. 2992-93, 47 U.S.C. Sec.  923 (g) 
(4) (A) (5).
    \9\ Public Notice, ``Commerce Releases Costs to Open Up Spectrum 
for Advanced Wireless Broadband Services,'' available at http://www.ntia.doc.gov/ntiahome/press/2005/relo_12282005.htm. See 
generally ``1710-1755 MHz Introduction,'' available at http://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm (updated list of 
affected Federal frequency assignments and other data). For a 
related discussion, see infra Section 2.a.
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    In April 2006, prior to the auction, NTIA and the FCC published a 
Joint Public Notice providing guidance to assist AWS-1 licensees and 
Federal incumbents in the post-auction coordination process. One of the 
purposes of that Joint Public Notice was to permit licensees access to 
the band in advance of estimated relocation dates, subject to the 
completion of successful coordination with the incumbents.\10\ The FCC 
concluded the auction on September 18, 2006.\11\
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    \10\ Federal Communications Commission and NTIA -- Coordination 
Procedures in the 1710-1755 MHz Band, 21 FCC Rcd 4730 (Apr. 20, 
2006) (``Joint Public Notice''). Access to a band by licensees prior 
to relocation of incumbents is sometimes referred to as ``early 
entry.''
    \11\ ``Auction 66, Advanced Wireless Services (AWS-1),'' 
available at http://wireless.fcc.gov/auctions/default.htm?job=auction_factsheet&id=66.
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    On February 16, 2007, OMB reported the cost and time estimates of 
relocating incumbent systems in the 1710-1755 MHz band to Congress. The 
CSEA provides that unless disapproved within 30 days, SRF funds shall 
be available immediately.\12\ OMB consequently transferred funds from 
the SRF to individual agencies, and calculated the start time for 
relocation activities as the date the funds transferred to the agency's 
account.\13\
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    \12\ CSEA, Sec.  204, 118 Stat. 3995, 47 U.S.C. Sec.  928(d) 
(2).
    \13\ The CSEA provides that amounts transferred from the SRF to 
a Federal agency be credited to the appropriations ``account'' of 
the agency. Id. Sec.  928 (e) (C).
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    The CSEA sets no firm date by which incumbent Federal agencies must 
vacate spectrum. Pursuant to the CSEA, however, Federal agencies in the 
1710-1755 MHz band estimated relocation times from one to six 
years.\14\ The CSEA provides that eight years after deposit of auction 
proceeds into the SRF, any remaining proceeds revert to the general 
fund of the Treasury.\15\
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    \14\ ``Report to Congress by the Office of Management and Budget 
on Agency Plans for Spectrum Relocation Funds Pursuant to the 
Commercial Spectrum Enhancement Act'' (Feb. 16, 2007) available at 
http://www.ntia.doc.gov/reports/2007/OMBSpectrumRelocationCongressionalNotification_final.pdf.
    \15\ CSEA, Sec.  204 (d) (3), 118 Stat. 3995, 47 U.S.C. Sec.  
928 (d) (3). NTIA may terminate a frequency authorization if it 
finds that an agency has unreasonably failed to comply with OMB-
approved time lines. CSEA, Sec. Sec.  202, 203(b), 118 Stat. 3993-
94, 47 U.S.C. Sec. Sec.  923 (g) (6), 309(j) (15) (D). See generally 
Manual of Regulations and Procedures for Federal Radio Frequency 
Management (``NTIA Manual''), Chapter O, Relocation of Federal 
Government Radio Systems in Accordance with the Commercial Spectrum 
Enhancement Act, available at http://www.ntia.doc.gov/osmhome/redbook/O.pdf.

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[[Page 32133]]

    The time line below describes the principal stages in the 1710-1755 
MHz band relocation.

                                                               Time Line -- Principal Stages in the 1710-1755 MHz Band Relocation
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                   PRE-AUCTION                       [mid]                                                                POST-AUCTION
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                                                                                                                                                                                 Proceeds Revert
                                                     AWS-1                                                                                                                         to Treasury
                    NTIA Releases 1710-             AUCTION    OMB Report    SRF Funds                  Early Entry                 Agency Estimated    [horbar][horbar][rarr]    General Funds
  President Signs      1755 MHz Data    FCC/NTIA   CONCLUDES       to       Transferred   [horbar][horbar][horbar][horbar][rarr]       Relocation                                 8 Years from
       CSEA           Setting Auction      JPN      [verbar3]   Congress    to Agencies                                                Completion       [horbar][horbar][rarr]     Deposit of
                       Reserve Price                                          [verbar3]                                                 [verbar5]                               Auction Proceeds
                                                                                                                                                                                    into SRF
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      [uarr]              [uarr]         [uarr]      [uarr]      [uarr]        [uarr]     ......................................         [uarr]
        Dec                 Dec           April       Sept         Feb       Mar/April    ......................................           Mar
       2004                2005           2006        2006        2007          2007      ......................................          2013
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REQUEST FOR COMMENT:

    NTIA requests comment on the questions below to assist in 
identifying lessons to be learned and other issues and suggestions 
related to the implementation of the CSEA. These questions are not a 
limitation on comments that may be submitted. When references are made 
to studies, research, and other empirical data that are not widely 
published, commenters are asked to provide copies of the referenced 
material with the submitted comments.

1. Overall Performance

    As of December 31, 2008, Federal agencies had relocated 
approximately 933 or 47 percent of the 1,990 Federal frequency 
assignments in the 1710-1755 MHz band.\16\ Also, as of December 31, 
2008, licensees registered expenses with private sector clearinghouses 
for relocating a total of approximately 765 or approximately 15 percent 
of the approximately 5,000 non-Federal radio frequency links in the 
2110-2155 MHz band, which was paired for auction with the 1710-1755 MHz 
band.\17\ Non-Federal relocation typically occurs on a link-by-link 
basis at the initiation of the AWS-1 licensee, when attempts to 
``engineer around'' an incumbent microwave licensee fail. Apart from 
moves made in response to requests for early entry, Federal agencies 
relocate on a system-wide basis under established time frames and SRF 
funding. NTIA asks parties to provide their perspectives on the overall 
Federal relocation effort. NTIA also seeks comment on how the nature 
and speed of the Federal relocation process compares with relocation of 
private sector incumbents in the 2110-2155 MHz band.
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    \16\ NTIA, 1710-1755 MHz Relocation and Schedule Summary, 
available at http://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_20081209/1710_1755_Relo_Costs_2008_12.pdf. One fixed microwave 
link and one land mobile link each comprise two Federal assignments. 
Fixed transportable and aeronautical mobile links each constitute a 
single assignment.
    \17\ Report of the CTIA Spectrum Clearinghouse, LLC (Jan. 30, 
2009); Semi-Annual Report of the PCIA -- The Wireless Infrastructure 
Association on the Status of the PCIA AWS Clearinghouse (Jan. 30, 
2009), both reports available at http://www.fcc.gov/cgb/ecfs/ 
(search Docket 02-353).
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2. Pre-Auction Issues

a. Adequacy of Data

    The CSEA requires NTIA, at least six months prior to an auction, 
``[t]o the extent practicable and consistent with national security 
considerations'' to provide the FCC with relocation cost and time 
estimates ``by the geographic location of the Federal entities' 
facilities or systems and the frequency bands used by such facilities 
or systems.''\18\ The cost data are used to set the reserve price for 
the auction.\19\
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    \18\ CSEA, Sec.  202, 118 Stat. 3992-93, 47 U.S.C. Sec.  923 (g) 
(4) (A), (C).
    \19\ CSEA, Sec.  203 (b), 118 Stat. 3994, 47 U.S.C. Sec.  309 
(j) (15) (B). ``A `reserve price' is defined as an absolute minimum 
price below which an auctioneer will not sell an object being 
auctioned.'' Amendment of Part 1 of the Commission's Rules -- 
Competitive Bidding Procedures, Third Report and Order and Second 
Further Notice of Proposed Rulemaking, 13 FCC Rcd 374, ] 140 (1997), 
recon. denied, 15 FCC Rcd 15293 (2000).
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    NTIA compiled cost and time estimates developed by the agencies in 
compliance with this requirement, along with a list of affected Federal 
assignments and other information. NTIA submitted these to the FCC and 
to Congress in December 2005.\20\ NTIA also published these data on its 
website and updated these published data before and after the auction. 
NTIA continues to update the data periodically.\21\
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    \20\ See supra note 9.
    \21\ Id.
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    In addition, prior to the auction, in April 2006, NTIA and the FCC 
published a Joint Public Notice. The Joint Public Notice detailed the 
early entry coordination process between AWS-1 licensees and Federal 
incumbents.\22\ The early entry process has raised a number of concerns 
from both Federal agencies and AWS-1 licensees.\23\ Was the Joint 
Public Notice useful to AWS-1 auction bidders and, later, to licensees? 
How might future such Notices be improved?
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    \22\ Joint Public Notice, supra note 10.
    \23\ See generally Commerce Spectrum Management Advisory 
Committee (``CSMAC''): ``Recommendations for Improving the Process 
for Identifying Spectrum for Future Reallocation or Sharing,'' at 
12-15, 19 (Aug. 22, 2008) (``CSMAC Reallocation Report'') available 
at http://www.ntia.doc.gov/advisory/spectrum/meeting_files/081508_csmac_WG3_Report_Revised_ (clean--final).pdf.
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    NTIA seeks comment on whether the information provided prior to the 
auction, both with respect to the Federal systems' relocation plans and 
the process for early entry, was adequate.\24\ Commenters should 
specify the type of additional information, if any, that would have 
been helpful. What technical and operational information, if any, would 
have better described the nature of systems to be relocated? Would 
additional technical details, a glossary of spectrum management terms, 
references to the NTIA Manual, or a description of the geographic area 
authorized for each Federal system, have better apprised potential 
bidders of the various types of operations in the

[[Page 32134]]

band?\25\ Should Federal agencies be required to highlight particular 
circumstances about which licensees might not otherwise know, such as 
the fact that replacement equipment is under development and is not 
commercially available, or the existence of nationwide, airborne, or 
classified systems?
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    \24\ Issues regarding the adequacy of information provided for 
purposes of coordinating early entry and permitting service 
initiation are discussed infra, Section 3.
    \25\ Some AWS-1 licensees attempting early entry apparently were 
unprepared for the challenges involved in relocating incumbent video 
surveillance systems that use large bandwidths and are authorized 
for nationwide operation. These characteristics significantly 
complicate coordination.
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    Under existing procedures, OMB reviews agency cost and time 
estimates in consultation with NTIA before they are submitted to 
Congress.\26\ Would future relocations benefit from more detailed 
information regarding agency transition plans in addition to what is 
currently incorporated in CSEA?
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    \26\ For more explanation on this process, see the 
``Chronology'' section above.
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    Federal agencies have estimated time lines for vacating the 
spectrum to which they are expected to adhere. Are details regarding 
agency transition plans relevant primarily to an assessment of the 
possibility of early entry? If so, to what extent would the disclosure 
of such details prior to the auction affect auction bidding?

b. Transparency

 i. Effect on bidding
    Security requirements necessitated the classification of some 
information regarding affected Federal systems. That information was 
therefore withheld prior to the auction.\27\ Other data in NTIA files 
related to many other Federal systems that have been treated previously 
as ``Freedom of Information Act (FOIA) Exempt.''\28\ However, to 
support the implementation of the CSEA, NTIA released these data prior 
to the auction.\29\
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    \27\ See generally Executive Order No. 12,958, as amended by 
Executive Order No. 13,292 (2003); 68 F.R. 15,315 (Mar. 28, 2003) 
(procedures for classifying, safeguarding and declassifying 
information) (``Classification Order'').
    \28\ 5 U.S.C. Sec.  552.
    \29\ See generally ``1710-1755 MHz Data -- Prior to May 22, 
2006,'' available at http://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_Prior%20to%2020060614/data_2005.htm.
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    To what extent (if any) did a lack of access to ``classified'' 
information prior to the auction affect bidders' ability to participate 
in the auction? Is there a way to ensure that commercial entities 
understand whether sharing with classified systems will be possible 
before Federal systems are fully moved? Can agencies, while avoiding 
prohibited disclosure of classified information, still objectively 
describe the risks that relocation time lines will not be met or that 
early entry coordination will not be possible? Must commercial entities 
have such an understanding in order to bid in the auction? Was the 
release of FOIA-exempt information prior to the auction helpful?
 ii. Qualitative assessment
    Would bidders benefit from a qualitative assessment by NTIA of the 
ease or difficulty of early entry? What would such an assessment 
entail? What factors would need to be analyzed? What would make early 
entry ``easy'' or ``difficult''? How would such an assessment affect 
auction bidders' due diligence obligations?\30\
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    \30\ Under the FCC due diligence obligations applicable to the 
AWS-1 auction, potential bidders are solely responsible for 
investigating the factors that may bear on the value of the 
licenses. Applicants in the AWS-1 auction were cautioned that 
operations had to be protected or relocated and that such 
limitations could restrict the ability to use certain portions of 
the spectrum or to provide service in certain geographic areas. 
Public Notice, ``Auction of Advanced Wireless Services Scheduled for 
June 29, 2006,'' AU Docket No. 06-30, FCC 06-47 (Apr. 12, 2006), ]] 
37-47, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-47A1.pdf, modified on other grounds, Public Notice, ``Auction of 
Advanced Wireless Services Licenses Rescheduled for August 9, 
2006,'' AU Docket No. 06-30, FCC 06-71 (May 19, 2006).
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 iii. Post-auction techniques
    After the AWS-1 auction, Federal agencies formulated Non-Disclosure 
Agreements (NDAs) and web-based capabilities for information 
dissemination. These steps provided additional information to a limited 
set of winning bidders/licensees in support of the early entry 
coordination process.\31\ These tools were not available prior to the 
auction. In some cases, they included information previously treated as 
FOIA exempt. No classified material was provided via these additional 
mechanisms. NTIA seeks comment on whether, subject to the appropriate 
restrictions, disclosure of such unclassified FOIA-exempt information 
could or should be made available prior to the auction.\32\ Could any 
additional post-auction techniques to provide additional information be 
used in advance of the auction? Parties commenting on this question 
should detail the types of practices and methods, including legal 
instruments and information technology-based mechanisms that would be 
helpful here. To what extent do pre-auction competitive and anti-
collusion concerns hinder the use of such techniques?
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    \31\ An NDA allowed an agency, prior to complete relocation, to 
share additional technical material on its operations as well as 
further information on sensitive operations, subject to certain 
conditions. See infra Section 3.a.v.B.
    \32\ See generally ``Memorandum for the Heads of Executive 
Departments and Agencies: Freedom of Information Act'' (Jan. 21, 
2009), available at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
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c. Communications

 i. Information exchange
    Prior to the AWS-1 auction, NTIA scheduled meetings with affected 
Federal agencies, and initially consulted with wireless associations 
regarding relocation efforts. Should NTIA expand its pre-auction 
procedures in the future to encompass regular information exchanges 
among potential bidders or wireless associations and affected agencies? 
How can NTIA ensure that it reaches small and minority-owned businesses 
that may benefit from purchasing auctioned spectrum? Would future 
relocation efforts benefit from outreach to wireless associations prior 
to the auction? Would such an effort help centralize, prioritize, and 
expedite requests for early entry from forthcoming auction winners?\33\ 
Parties commenting on this question should specify the type of 
information that should be exchanged, the appropriate parties and 
groups to be included, and the venue and frequency for such exchanges.
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    \33\ Issues related to the possible value of expanded 
communications with licensees after the auction in connection with 
early entry issues are discussed further infra Section 3.a.vi.
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 ii. Standardization
    For AWS-1, some agencies developed templates and forms expanding 
the licensee data required in the Joint Public Notice and related FCC 
rules.\34\ Were these templates useful without being overly burdensome? 
What aspects of these forms should be retained? Are there ways in which 
they can be improved? Should they remain ad hoc in nature or be 
standardized across all agencies? Can such standardized forms be 
developed prior to future auctions, to eliminate any lag in the early 
entry coordination process?
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    \34\ See infra Section 3.a.vi.B.
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    The 1710-1755 MHz band incumbents are largely fixed microwave 
operations. The Joint Public Notice and FCC rules require the 
interference analysis methodology and criteria specified in 
Telecommunications Industry Association (TIA) Telecommunications 
Systems (TSB) Bulletin 10-F.\35\ That analysis applies to sharing 
between fixed systems and between fixed and mobile systems. It was used 
to assess potential interference

[[Page 32135]]

arising from licensee operations prior to the scheduled relocation 
date. Did this analysis prove useful, and should it be used in future, 
similar auctions? If not, what would help?
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    \35\ See Joint Public Notice, supra note 10. See also 47 C.F.R. 
Sec.  27.1134(b). The Joint Public Notice noted that the parties 
could agree to an alternative method where this standard did not 
apply.
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    NTIA also seeks comment on how to address coordination between 
licensees and incumbents in future relocations where established 
sharing methodology or criteria does not exist. Would over-the-air 
testing prior to the auction and prior to a determination of winning 
bidders and their specific technical plans provide useful 
information?\36\ What role, if any, should NTIA play in any such 
testing?
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    \36\ See infra Section 3.a.vi.B for a related discussion from a 
post-auction perspective.
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 iii. Guidance
    Successful spectrum relocation under the CSEA necessitates that 
diverse Federal and non-Federal entities harmonize procedures and 
terminology. Is there a need for NTIA, the FCC, and OMB to provide 
clarifying guidance to both licensees and agencies before the auction 
beyond what has been provided in OMB Circular A-11 and OMB Memorandum 
M-09-01, as well as through informal channels such as interagency 
meetings?\37\ Would such guidance ensure that all affected parties 
understand terminology and processes?
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    \37\ Executive Office of the President, Office of Management and 
Budget, Circular No. A-11, Preparation, Submission, and Execution of 
the Budget, (June 2008 rev.), available at http://www.whitehouse.gov/omb/circulars/a11/current_year/a_11_2008.pdf; 
Executive Office of the President, Office of Management and Budget, 
Memorandum for Heads of Executive Departments and Agencies, M-09-01, 
available at http://www.whitehouse.gov/omb/assets/omb/memoranda/fy2009/m09-01.pdf. See infra Section 3.b for a related discussion 
from the post-auction perspective.
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    Should NTIA, alone or in collaboration with other oversight 
agencies, sponsor training for agency headquarters and field personnel? 
Should NTIA prepare or collaborate with wireless industry associations 
to provide training for relevant commercial entities? Such pre-auction 
training might also clarify terminology, interpretation, and procedure. 
Would such training improve the auction and early-entry processes? 
Interested parties are asked to comment on appropriate sponsors and 
topics for such training, and whether it should be mandatory.

d. Starting the Clock

    Under the CSEA, the auction of Federal frequencies must raise at 
least 110 percent of the estimated relocation costs of affected 
agencies, or the auction will be canceled.\38\ Until that threshold is 
reached, Federal agencies cannot be sure that their expenses will be 
reimbursed. Thus, an agency undertaking initial tasks in advance of an 
auction does so at the risk of not being recompensed. Such tasks may 
include project management, technical studies, training, development of 
software tools, or the hiring of additional personnel. Can Federal 
agencies draw from private-sector experience and methodology to ensure 
that their estimated costs and time lines are as accurate as possible, 
and that they are prepared to tackle relocation in a timely manner? If 
so, what should be done?
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    \38\ CSEA, Sec.  203 (b) 118 Stat. 3994, 47 U.S.C. Sec.  309 (j) 
(15) (B).
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e. NTIA's Role

    NTIA regulates the Federal government's use of radio stations and 
associated radio frequency spectrum.\39\ The CSEA confers oversight 
powers on NTIA, in consultation with OMB, with respect to relocation 
efforts.\40\ Prior to the AWS-1 auction, NTIA compiled estimated 
relocation costs and time lines, as the CSEA requires, and consulted 
with Federal agencies and the industry. NTIA published these data on 
its website and continues to update this material periodically.\41\ 
Parties are asked to comment on NTIA's role in the pre-auction phase of 
CSEA implementation. Is there additional or different information NTIA 
should provide? In retrospect, was the information accurate? What could 
be done to make the information more accurate or useful? Are post-
auction updates useful to licensees? To others?
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    \39\ NTIA Manual, supra note 15, Sec.  1.1.
    \40\ See supra note 15.
    \41\ See generally ``1710-1755 MHz Introduction,'' available at 
http://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm. See also 
Section 2.a, supra.
---------------------------------------------------------------------------

3. Post-Auction Issues

a. Early Entry

 i. Background
    The CSEA permits the grant of an FCC license to auction winners on 
reallocated spectrum even if agencies continue to operate in the band, 
provided there is no harmful interference to agency operations.\42\ 
Under the CSEA, ``eligible costs'' subject to SRF reimbursement may 
include ``one-time costs of any modification of equipment'' reasonably 
necessary to accommodate early entry.\43\ They also include costs 
associated with ``accelerated replacement'' if necessary for ``timely 
relocation of systems to a new frequency assignment.''\44\
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    \42\ CSEA, Sec.  203 (b) (C), 118 Stat. 3994, 47 U.S.C.Sec.  309 
(j) (15) (c). The Joint Public Notice established coordination 
procedures for early entry. See ``Chronology,'' Section 2.a, and 
note 10, supra.
    \43\ CSEA, Sec.  202, 118 Stat. 3992, 47 U.S.C. Sec.  923 (g) 
(3) (D).
    \44\ CSEA, Sec.  202, 118 Stat. 3992, 47 U.S.C. Sec.  923 (g) 
(3) (E).
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    As permitted under the CSEA, several AWS-1 licensees sought to 
begin operations before the estimated relocation dates established by 
the agencies.\45\ Licensees particularly focused on major metropolitan 
areas. Licensees expressed frustration at the delays they encountered 
in coordinating with Federal agencies.\46\ On the other hand, it is 
NTIA's understanding that Federal agencies found themselves overwhelmed 
by industry requests and pressure to allow early entry. Has early entry 
by licensees beginning to implement their systems proven important in 
the successful implementation of the CSEA?
---------------------------------------------------------------------------

    \45\ Agencies estimated relocation times from one to six years. 
See ``Chronology,'' supra.
    \46\ CSMAC Reallocation Report, supra note 23, at 18-21.
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    The Joint Public Notice provided a structured process for early 
entry coordination. Parties are asked to comment on whether this 
created a reasonable expectation of successful coordination. For 
Federal agencies, the CSEA requires that they meet their estimated 
relocation dates and coordinate in good faith for early entry prior to 
their scheduled moves. The agencies do not believe that the CSEA 
requires that they vacate the band prior to their estimated relocation 
dates at the licensee's request, nor that the law guarantees successful 
early entry coordination.\47\ In some cases, licensees negotiated with 
Federal agencies in order to expedite band clearance. However, existing 
Federal operations sometimes precluded early entry by the 
licensees.\48\ Were Federal agencies reasonably diligent in their early 
relocation efforts? How could they be more so? Did an expectation of 
successful coordination form part of the basis for AWS-1 auction bids? 
Should bidders expect to bear all the risks associated with early 
entry? What options should be available to facilitate early entry?
---------------------------------------------------------------------------

    \47\ See generally id., at 19.
    \48\ See generally id., at 18-21.
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 ii. FCC Process for Non-Federal Incumbents
    The FCC transitional rules applicable to non-Federal incumbents 
differ from the CSEA procedures described above. Under the FCC rules, 
AWS-1 licensees trigger the start of non-Federal incumbent relocation 
efforts in the form

[[Page 32136]]

of mandatory negotiations.\49\ Private clearinghouses allow AWS-1 
licensees to share commonly incurred reimbursement costs.\50\ An AWS-1 
licensee may pay a premium to expedite a non-Federal incumbent's move. 
If the payment, however, exceeds the clearinghouse ``cost-sharing 
cap,'' other AWS-1 licensees also benefitting from the relocation would 
only have to make payments on a pro-rata basis up to the cap. We seek 
comment on how the Federal and non-Federal approaches to compensating 
incumbents for relocation expenses compare.\51\
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    \49\ This period is two years for fixed microwave incumbents and 
three years for Broadband Radio Service (BRS) licensees. 47 C.F.R. 
Sec.  101.69; 47 C.F.R. Sec.  1250. Fixed microwave services operate 
in the 2110-2150 MHz band. BRS operates at 2150-2155 MHz. Parties 
are free to negotiate voluntarily at any time. If the parties fail 
to agree within the mandatory period, the AWS licensee may initiate 
involuntary relocation procedures. The microwave relocation rules 
sunset 10 years, and the BRS rules 15 years, after the first AWS-1 
license is issued. At this point, an AWS-1 licensee starting up 
service within interference range may require an incumbent to cease 
operation. 47 C.F.R. Sec.  101.79(a)(1); 47 C.F.R. Sec.  27.1253.
    \50\ AWS-1 licensees benefitting from another licensee's 
relocation of an incumbent share in those expenses, pro-rata, 
subject to a ``cap.'' The FCC established maximum amounts or 
``caps'' on what the clearinghouse could pay. ``FAQs -- AWS 
Licensees,'' available at http://ww.ctiaspectrumclearinghouse.org/ctia/aws-lic.jsp.
    \51\ See also Section 1, supra.
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 iii. Incentives
     A. Market-based incentives

    NTIA seeks comment on whether any of the market-based incentives 
operative in the non-Federal clearance process could be applied to 
expedite Federal agency relocation. The CSEA allows recovery of some 
costs associated with interim changes accommodating early entry prior 
to scheduled Federal relocation. These include one-time costs of 
equipment modification necessary for early entry and costs associated 
with accelerated replacement of systems and equipment.\52\ Are these 
provisions sufficient?
---------------------------------------------------------------------------

    \52\ See Section 3.a.1, supra.

---------------------------------------------------------------------------
     B. Benchmarks and other non-economic approaches

    The CSEA requires agencies to estimate relocation times. Were 
relocation estimates for AWS-1 generally accurate? How might they be 
improved in the future? NTIA seeks comment on whether standards, 
expressed or implied, for assessing the reasonableness of these times, 
can be drawn from the statute. How, as a practical matter, might NTIA 
and OMB ensure that relocation time estimates provide that agencies 
vacate the spectrum as expeditiously as possible?
    The Commerce Spectrum Management Advisory Committee (CSMAC) 
recommended the adoption of ``benchmarks'' or interim clearance 
requirements by which gradually increasing percentages of a Federal 
system would be vacated at certain specified dates.\53\ Should NTIA 
establish mandatory ``benchmarks'' or other non-market-based incentives 
for Federal agencies to use in vacating the spectrum? Would benchmarks 
of this nature help move relocation forward or provide meaningful 
certainty to bidders? What other benchmarks might be useful? Would 
benchmarks contradict the CSEA procedures allowing agencies to estimate 
their own relocation times, subject to OMB and NTIA review? Should any 
such benchmarks be service-specific, taking account of the relative 
ease or difficulty of relocating different types of operations? Parties 
advocating for benchmarks should indicate how an entrant would use 
them, point to analogous FCC or other precedent, and explain how 
benchmarks have been used in the past. In particular, NTIA seeks input 
on how benchmarks could be enforced in a meaningful way.
---------------------------------------------------------------------------

    \53\ CSMAC Reallocation Report, supra note 23 at 24-25.
---------------------------------------------------------------------------

 iv. Adequacy of Data
    The Joint Public Notice detailed the coordination process for 
licensees to use in early entry. This process, if successful, permits 
AWS-1 licensees to access the 1710-1755 MHz band prior to the estimated 
agency relocation dates. The Joint Public Notice referenced additional 
material available on NTIA's website providing geographic location, 
frequency bands, and other information.\54\ NTIA seeks comment on the 
adequacy of this information for purposes of coordinating early entry 
and permitting licensees to begin deployment.\55\ What information 
might be added? What aspects of the coordination process established in 
the Joint Public Notice succeeded and which might be improved?
---------------------------------------------------------------------------

    \54\ Joint Public Notice, supra note 10.
    \55\ For a discussion of how adequacy of this information might 
affect bidding, see supra Section 2.a.
---------------------------------------------------------------------------

    Parties are asked to detail any supplementary information that 
would facilitate sharing of the spectrum prior to the agency's 
scheduled relocation time. Once winning bidders are determined, should 
commercial entities be required to exchange information regarding their 
operational plans as part of the coordination process? Such information 
might enable Federal agencies to reduce the additional agency data 
needed to facilitate early entry. Parties are asked to comment on this 
tentative view, and on any competitive or proprietary issues it may 
raise. What licensee information, if any, should be shared, and if so, 
at what point and by what mechanisms?
 v. Transparency
     A. Post-auction considerations

    After a successful auction, the number of commercial entities 
potentially interested in classified or otherwise restricted data on 
incumbent Federal operations narrows to a group of successful bidders 
with specific deployment plans and operational needs. The Federal 
agencies developed distinct techniques for releasing additional 
information to this smaller group. NTIA seeks comment on the validity 
of this general distinction between pre-auction and post-auction 
releasability of data. Does this distinction generally allow Federal 
agencies to provide more data after the auction? Did these post-auction 
techniques succeed, and how might they be improved? Should there be a 
standardized process for releasing otherwise restricted data after 
licenses are awarded?

     B. Non-disclosure agreements

    The Joint Public Notice provided that AWS-1 licensees could enter 
into Non-Disclosure Agreements (NDAs) with Federal agencies after the 
auction.\56\ An NDA allowed an agency, prior to complete relocation, to 
share additional technical material on its operations as well as 
further information on otherwise sensitive data. NTIA seeks comment on 
whether this process should be retained. Can it be improved? If so, 
how?
---------------------------------------------------------------------------

    \56\ Joint Public Notice, supra note 10, at 4.

---------------------------------------------------------------------------
     C. Other mechanisms

    NTIA seeks comment on other possible mechanisms for exchanging 
information on classified or otherwise restricted data. In lieu of 
NDAs, some agencies developed web-based capabilities to facilitate 
coordination with licensees.\57\ This allowed an assessment of 
potential interference to Federal systems without revealing restricted 
material. Were these techniques successful? Such web-based capabilities 
require licensees to provide detailed, accurate data regarding their 
operational plans. Provision of this data may permit an agency to 
assess accurately and quickly the potential for interference to their 
operations, and to

[[Page 32137]]

notify the licensee accordingly. Does this additional data demand raise 
competitive and proprietary concerns for licensees? If so, how can such 
concerns be lessened?
---------------------------------------------------------------------------

    \57\ The CSMAC has recommended the use of automated procedures 
or other secure online capabilities for facilitating the sharing of 
classified information. See CSMAC Reallocation Report, supra note 
23, at 21-22.
---------------------------------------------------------------------------

    Parties addressing the disclosure of classified or otherwise 
sensitive information should reference relevant Federal rules and 
statutes.\58\ Commenters are encouraged to cite specific examples of 
mechanisms that have either worked or failed.
---------------------------------------------------------------------------

    \58\ See, e.g., Classification Order, supra note 27; 5 U.S.C. 
Sec.  552.
---------------------------------------------------------------------------

 vi. Communications
    Both Federal agencies and licensees cite poor communications as a 
fundamental cause of early entry issues. It is NTIA's understanding 
that Federal agencies noted intense pressure, floods of requests, and 
inaccurate data from licensees. Licensees, in turn, remark about 
bureaucratic delays, lack of assigned agency staff, and divergent 
agency practices.\59\ In general, how could communications related to 
early entry activities be improved?
---------------------------------------------------------------------------

    \59\ See generally CSMAC Reallocation Report, supra note 23 at 
18-21.

---------------------------------------------------------------------------
     A. Information exchange

    NTIA has held monthly meetings among affected Federal agencies 
since the AWS-1 auction. Should NTIA expand these to include regular 
information exchanges among both licensees and agencies to address 
problems and assess progress? How would such meetings affect licensees' 
competitive concerns? Parties are asked to comment on what the 
frequency and scope of such meetings would be.
    Agencies claim that they were inundated with simultaneous early 
entry requests.\60\ Would it help to require a date certain 
notification to agencies of license award, company, and contact 
information and the need for coordination? Should licensees be required 
to prioritize when submitting large numbers of such requests at the 
same time?
---------------------------------------------------------------------------

    \60\ See generally id., at 13, 19.
---------------------------------------------------------------------------

    Some agencies maintain that inadequate data from licensees for 
coordination purposes hindered early deployment. To what extent did 
this inadequacy proceed from competitive or proprietary concerns which 
hampered full information exchange? What types of data -- for example, 
contact information, implementation schedules, network characteristics, 
technical parameters, duty cycles -- would be of assistance? How can 
agencies correctly understand licensee early entry aims, while at the 
same time protect competitive sensitivities? What types of information 
or procedures might help?

     B. Standardization and centralization

    Parties are asked to comment on the value of automation in 
improving transparency of communications.\61\ Web-based capabilities 
and other Information Technology-based mechanisms may provide a way to 
streamline the coordination process. Should Federal agencies be 
encouraged to adopt these? Should OMB, the FCC, and NTIA create a 
centralized Federal website to provide uniform guidance on process, 
eligible costs, coordination, and other CSEA implementation matters?
---------------------------------------------------------------------------

    \61\ See also supra Section 3.a.v.C.
---------------------------------------------------------------------------

    The methodology and interference criteria specified in TIA TSB 10-F 
provided a standard approach for assessing potential interference to 
Federal fixed microwave systems.\62\ Some agencies also developed 
templates and forms for licensee interactions, following agency-
specific testing and determination of particular interference 
parameters. Such uniformity can help avoid time-consuming case-by-case 
analyses. Is there a way to standardize interference parameters across 
agencies for the same incumbent service? What if a widely accepted 
standard, such as the TIA TSB 10-F, is not available for the service at 
issue?
---------------------------------------------------------------------------

    \62\ See supra Section 2.c.ii.
---------------------------------------------------------------------------

    Would it be useful to permit testing as a means of verifying the 
results of interference analyses in ``real world'' conditions? If so, 
when should such testing be permitted?

b. Guidance

    Licensees have noted the lack of agency personnel dedicated to 
relocation matters, with the result that agency interactions may prove 
dilatory or unproductive.\63\ Section 2.c.iii above addresses the need 
for pre-auction training and guidance. Is there a need for ongoing and 
standardized guidance as the relocation process progresses post-
auction? What sort of guidance would prove useful in answering specific 
or novel implementation questions regarding early entry and related 
matters as they occur?
---------------------------------------------------------------------------

    \63\ CSMAC Reallocation Report, supra note 23, at 13.
---------------------------------------------------------------------------

c. NTIA's Role

    Where necessary, NTIA facilitated coordination efforts between AWS-
1 licensees and Federal incumbents, and left the ultimate decision-
making to the parties themselves. On the non-Federal side, AWS-1 
licensees are required to negotiate directly with individual 
incumbents. Please comment regarding the adequacy of NTIA's efforts to 
support coordination. The CSMAC has suggested that relocation 
activities, including licensee interface, be centralized in NTIA.\64\ 
Do circumstances differ for direct licensee-Federal incumbent 
interaction such that NTIA should increase its leadership role?
---------------------------------------------------------------------------

    \64\ Id., at 23.
---------------------------------------------------------------------------

    Throughout the 1710-1755 MHz relocation process, NTIA has served 
multiple roles. Often, NTIA acts as a liaison for licensees seeking 
additional information or accelerated clearance from agencies. NTIA 
also coordinates with OMB and the FCC regarding appropriate policies 
and procedures. NTIA provides guidance to the Federal agencies based on 
its own expertise, and the advice of OMB and the FCC. In light of 
NTIA's institutional expertise, the CSMAC recommended that NTIA assume 
a greater leadership role in this process.\65\ NTIA seeks comment on 
its role as a liaison between AWS-1 licensees and Federal agencies in 
early entry matters. What additional responsibilities or roles should 
NTIA assume in this process? What are the potential benefits or 
pitfalls of such additional responsibility(ies)? With respect to 
offering guidance on relocation policies and procedures, are there ways 
in which NTIA might improve its efforts?\66\
---------------------------------------------------------------------------

    \65\ Id.
    \66\ See supra Section 3.b.
---------------------------------------------------------------------------

d. Other Funding and Administrative Issues

 i. Long-term lease costs
    Federal spectrum management policies encourage Federal agencies to 
use commercial services whenever feasible.\67\ One Federal agency 
replaced existing fixed microwave systems having an estimated 12-year 
life with commercial telephony leases entailing recurring monthly 
charges. However, in the 1710-1755 MHz relocation, payment of costs is 
limited to one-time relocation costs.\68\ Does this limitation hinder 
or delay the entry of commercial services in the band?\69\
---------------------------------------------------------------------------

    \67\ NTIA Manual, supra note 15, Sec.  2.3.3.
    \68\ The SRF may pay ``relocation'' costs. These include costs 
necessary to achieve ``comparable capability'' regardless if that 
entails a new frequency assignment or use of an alternative 
technology. CSEA, Sec. Sec.  204 (c), 202, 118 Stat. 3994, 3992, 47 
U.S.C. Sec. Sec.  928, 923 (g) (3).
    \69\ One alternative might be to use the eight-year CSEA 
``sunset'' date. See ``Chronology,'' supra.
---------------------------------------------------------------------------

 ii. Spectrum-efficient technologies
    The CSEA is based on payment of costs to relocate Federal systems 
to new

[[Page 32138]]

spectrum. In the case of the 1710-1755 MHz band, this involved moving 
Federal systems completely out of the allocated band. It is possible, 
however, that technological advances or more spectrum-efficient 
techniques, if implemented across all Federal agencies or entire 
services, may permit increased consolidation or sharing among Federal 
agencies. This, in turn, could result in release of additional spectrum 
that could be auctioned for commercial services. Under this approach 
the Federal users might still remain in the band. Could this approach 
result in the potential for increased opportunities to accommodate new 
commercial services? Are there other approaches to accommodating new 
commercial services in bands used by the Federal government?

e. Urban versus Rural Relocation

    Federal policies favor nationwide availability of advanced 
services.\70\ Advanced wireless industry efforts to transition agencies 
thus far, however, appear to have concentrated on populated areas. To 
date, agencies in remote areas for the most part have been able to 
accommodate buildouts through the coordination process.\71\ In the 
future, should Federal/non-Federal sharing in remote regions substitute 
for outright reallocation? How would continued Federal use hinder 
commercial deployment in remote areas?
---------------------------------------------------------------------------

    \70\ See generally White House, Technology, ``Drive Economic 
Growth and Solve National Problems by Deploying a 21st Century 
Infrastructure,'' available at www.whitehouse.gov/issues/technology; 
Press Release, NTIA, ``Vilsack, Copps and Wade Kick Off American 
Recovery and Reinvestment Act's Broadband Initiative'' (Mar. 10, 
2009) available at http://www.ntia.doc.gov/press/2009/BTOP_RFI_090310.pdf.
    \71\ See generally Second Annual Relocation Report, supra note 
5, at A-1 and n. 2 (USDA extensions of relocation time lines in 
remote areas did not impact commercial deployment).

    Dated: June 30, 2009.
Anna M. Gomez,
Deputy Assistant Secretary for Communications and Information.
[FR Doc. E9-15870 Filed 7-6-09; 8:45 am]
BILLING CODE 3510-60-S


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