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pdfFederal Communications Commission
FCC 07-132
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Service Rules for the 698-746, 747-762
and 777-792 MHz Bands
Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems
Section 68.4(a) of the Commission’s Rules
Governing Hearing Aid-Compatible
Telephones
Biennial Regulatory Review – Amendment of
Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless
Radio Services
Former Nextel Communications, Inc.
Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of
the Commission’s Rules
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
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WT Docket No. 06-150
CC Docket No. 94-102
WT Docket No. 01-309
WT Docket No. 03-264
WT Docket No. 06-169
PS Docket No. 06-229
WT Docket No. 96-86
WT Docket No. 07-166
Declaratory Ruling on Reporting Requirement
under Commission’s Part 1 Anti-Collusion
Rule
SECOND REPORT AND ORDER
Adopted: July 31, 2007
Released: August 10, 2007
Federal Communications Commission
FCC 07-132
By the Commission: Chairman Martin issuing a statement; Commissioners Copps, Adelstein, and
Tate approving in part, concurring in part, and issuing separate statements;
Commissioner McDowell approving in part, dissenting in part, and issuing a
statement.
TABLE OF CONTENTS
Heading
Paragraph #
I. INTRODUCTION .....................................................................................................................1
II. BACKGROUND .....................................................................................................................14
A. DTV Transition and Reclamation of the 700 MHz Band..................................................15
B. 700 MHz Commercial Services Proceeding......................................................................18
C. 700 MHz Guard Bands Proceeding ...................................................................................24
D. 700 MHz Public Safety Proceeding...................................................................................30
E. 700 MHz Report and Order and 700 MHz Further Notice ...............................................35
III. DISCUSSION..........................................................................................................................42
A. Commercial 700 MHz Band, Including 700 MHz Guard Bands ......................................44
1. Band Plan.....................................................................................................................44
a. Commercial Spectrum (Excluding Guard Bands Spectrum).................................45
(i) Background......................................................................................................45
(ii) Discussion........................................................................................................62
b. Guard Bands Spectrum..........................................................................................97
(i) Background......................................................................................................97
(ii) Discussion......................................................................................................111
2. Service Rules .............................................................................................................140
a. Commercial Services (Excluding Guard Bands and Upper 700 MHz D
Block) ..................................................................................................................140
(i) Performance Requirements ...........................................................................140
(ii) Partitioning and Disaggregation ....................................................................178
(iii)Open Platforms for Devices and Applications ..............................................189
(iv)Use of Dynamic Spectrum Management Techniques ...................................231
(v) Protection of 700 MHz Public Safety Operations .........................................249
(vi)Licensee Eligibility........................................................................................252
b. 700 MHz Guard Bands ........................................................................................260
(i) Treatment of Reconfigured A Block .............................................................260
(ii) Treatment of Reconfigured B Block .............................................................266
(iii)Treatment of PTPMS II Licenses ..................................................................268
(iv)License Terms................................................................................................271
3. Auctions-Related Issues ............................................................................................274
a. Anonymous Bidding............................................................................................274
b. Declaratory Ruling on Anti-Collusion Rule Reporting Requirement .................285
c. Package Bidding ..................................................................................................287
d. “New Entrant” Bidding Credit ............................................................................293
e. Reserve Prices .....................................................................................................297
f. Statutory Deposit Deadline..................................................................................318
B. 700 MHz Public Safety Spectrum ...................................................................................322
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Federal Communications Commission
FCC 07-132
1. Band Plan...................................................................................................................323
a. Broadband Segment.............................................................................................324
b. Narrowband Segment ..........................................................................................327
(i) Consolidation of Narrowband Channels .......................................................327
(ii) Timing of Narrowband Consolidation...........................................................330
(iii)Funding Issues ...............................................................................................345
c. Regional Planning Committee Plans ...................................................................345
d. Internal Guard Band ............................................................................................347
e. Border Issues .......................................................................................................349
f. Technical Parameters...........................................................................................353
(i) Broadband Power Limits ...............................................................................354
(ii) Broadband Emission Limit............................................................................360
(iii)Broadband Interoperability Standard.............................................................363
2. Public Safety Broadband Licensee ............................................................................365
a. Single Nationwide Geographic Area License .....................................................367
b. Eligibility Criteria................................................................................................371
c. Selection Process .................................................................................................378
d. Responsibilities of the Public Safety Broadband Licensee .................................381
e. Licensing Issues...................................................................................................384
C. 700 MHz Public/Private Partnership ...............................................................................386
1. Adoption of the 700 MHz Public/Private Partnership...............................................388
2. Essential Components of Public/Private Partnership ................................................403
a. Shared Wireless Broadband Network..................................................................403
b. Spectrum Use.......................................................................................................407
c. Performance Requirements .................................................................................432
d. Network Sharing Agreement (NSA) and Mandatory Provisions ........................444
e. License Term and Renewal Expectancy for the Public/Private Partnership .......455
f. Public Safety Satellite Support ............................................................................460
g. Local Public Safety Build-out and Operation......................................................469
3. Safeguards Relating to the Public/Private Partnership ..............................................497
a. Rules for Establishment, Execution and Application of the NSA.......................497
b. Ongoing Conditions for the Protection of Public Safety Service........................513
4. Other Issues ...............................................................................................................531
a. Bidding Credits....................................................................................................531
b. License Partitioning, Disaggregation, Assignment, and Transfer .......................538
c. Commercial Service Issues..................................................................................543
(i) Wholesale and Open Access Proposals .........................................................543
(ii) Roaming Proposal .........................................................................................547
(iii)Applicability of CALEA, E911, and Other Requirements............................550
IV. PROCEDURAL MATTERS.................................................................................................554
A. Regulatory Flexibility Act ...............................................................................................554
B. Paperwork Reduction Act of 1995 ..................................................................................555
V. ORDERING CLAUSES........................................................................................................556
Appendix A: Comments and Reply Comments
Appendix B: Final Rules
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FCC 07-132
Appendix C: Final Regulatory Flexibility Analysis
Appendix D: Upper 700 MHz A Block License Modifications
I.
INTRODUCTION
1.
In this Second Report and Order, we establish rules governing wireless licenses in
the 698-806 MHz Band (herein, the “700 MHz Band”). This spectrum currently is occupied by
television broadcasters in TV Channels 52-69. It is being made available for wireless services,
including public safety and commercial services, as a result of the digital television (“DTV”)
transition. In passing the Digital Television Transition and Public Safety Act of 2005 (“DTV
Act”), Congress accelerated the DTV transition by providing a date certain, February 17, 2009,
for the end of the transition.1 In light of this significant change, the developments that have
occurred over the past several years in the market for commercial wireless communications and
the evolving needs of the public safety community for advanced broadband communications, the
Commission began reexamining its rules governing the 700 MHz Band last year.
2.
The Commission has been considering rules related to the use of this spectrum in
three ongoing proceedings: (1) the 700 MHz Commercial Services proceeding,2 (2) the 700
MHz Guard Bands proceeding,3 and (3) the 700 MHz Public Safety proceeding.4 Recognizing
the interrelationship of these proceedings, we recently combined these proceedings and in April
2007 issued a single Report and Order and Further Notice of Proposed Rulemaking (the “700
MHz Report and Order” and “700 MHz Further Notice,” respectively) addressing all three.5 In
1
See Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) (“DRA”). Title III of the DRA is the
DTV Act.
2
See Service Rules for the 698-749, 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 and Section 68.4(a)
of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, CC Docket No. 94-102, WT Docket
No. 01-309, Notice of Proposed Rule Making, Fourth Further Notice of Proposed Rule Making, and Second Further
Notice of Proposed Rule Making, 21 FCC Rcd 9345 (2006) (700 MHz Commercial Services Notice).
3
See Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission’s Rules, Development of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket Nos. 06-169 and
96-86, Notice of Proposed Rule Making, 21 FCC Rcd 10413 (2006) (700 MHz Guard Bands Notice).
4
See 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 (2006) (700 MHz Public Safety Ninth Notice);
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, Eighth Notice of Proposed
Rulemaking, 21 FCC Rcd 3668 (2006) (700 MHz Public Safety Eighth Notice).
5
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. 94102, 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
(continued….)
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FCC 07-132
the 700 MHz Report and Order, we revised certain service rules pertaining to commercial
licenses in the 700 MHz Band, including those affecting the Guard Bands.6 In the 700 MHz
Further Notice, we sought comment on various band plan proposals for licensing the commercial
spectrum in the 700 MHz Band that has not yet been auctioned and for reconfiguring the size and
location of the spectrum blocks associated with these licenses, including the 700 MHz Guard
Bands. We also proposed to adopt stricter performance requirements for the commercial licenses
that have not yet been auctioned. Regarding public safety, we tentatively concluded to
redesignate the 700 MHz public safety wideband spectrum for broadband use consistent with a
nationwide interoperability standard, to prohibit wideband operations on a going forward basis,
and to consolidate the existing narrowband channels in the upper half of the public safety
spectrum while designating the lower half for nationwide interoperable broadband
communications. Finally, we sought comment on establishing a public/private partnership
between a commercial licensee and a single public safety licensee with respect to developing a
nationwide, shared interoperable broadband network for use by public safety users.7 We address
these proposals and related issues in this Second Report and Order.
3.
Consistent with our goals of promoting commercial access to 700 MHz Band
spectrum and the development of a nationwide interoperable broadband network for public
safety users, in this Second Report and Order we revise the band plan for both the commercial
and the public safety spectrum and adopt related service rules. We designate a spectrum block
in the upper portions of the commercial spectrum for a commercial licensee that will be part of a
public/private partnership (the “700 MHz Public/Private Partnership”) entered with a national
public safety broadband licensee for the public safety broadband spectrum, in a reconfigured 700
MHz Public Safety Band, to promote the development of nationwide interoperable broadband
services for public safety users. We also change the location of the existing 700 MHz Guard
Band licenses, provide for a 1-megahertz shift of the other commercial spectrum blocks in the
Upper 700 MHz Band and the 700 MHz Public Safety Band, and reduce the size of the Guard
Band B Block to make 2 additional megahertz of commercial spectrum available for auction. As
we observed in the 700 MHz Report and Order and 700 MHz Further Notice, these revisions to
the band plan for the 700 MHz Band and the associated rules are appropriate in light of the
significant changes in the statutory framework governing this spectrum, the continuing
technological advances in the market for wireless services, and the rapidly increasing need of
public safety users for broadband communications.8
(Continued from previous page)
Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064 (2007) (700 MHz Report and Order and 700 MHz
Further Notice, respectively). Citations to Comments and Reply Comments filed in response to the 700 MHz
Further Notice are designated “[Name of Party] 700 MHz Further Notice Comments (or Reply Comments) at [page
number].” A list of commenters can be found in Appendix A. We cite to comments filed in response to the 700
MHz Commercial Services Notice, the 700 MHz Guard Bands Notice, and the 700 MHz Public Safety Ninth Notice
using a comparable format. A list of commenters in those proceedings can be found in Appendix A of the 700 MHz
Further Notice. See 700 MHz Further Notice, 22 FCC Rcd at 8173, App. A.
6
700 MHz Report and Order, 22 FCC Rcd at 8121-28 ¶¶ 151-68.
7
700 MHz Further Notice, 22 FCC Rcd at 8160-68 ¶¶ 268-90.
8
See 700 MHz Report and Order, 22 FCC Rcd at 8066-67 ¶¶ 2-4.
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Federal Communications Commission
FCC 07-132
4.
The revised band plan for the commercial services in the 700 MHz Band,
including sizes and locations of the geographic service areas and spectrum blocks, is illustrated
below.
FIGURE 1: REVISED 700 MHZ BAND PLAN FOR COMMERCIAL SERVICES
757
A
B
C
D
E
A
B
C
CH.
52
CH.
53
CH.
54
CH.
55
CH.
56
CH.
57
CH.
58
CH.
59
698
704
710
716
722
728
734
740
C
CH.
60
746
775
A
D
CH.
61
752
CH.
63
764
LOWER 700 MHZ BAND
(CHANNELS 52-59)
Block
A
B
C
D
E
C
D
A
B
Frequencies
698-704, 728-734
704-710, 734-740
710-716, 740-746
716-722
722-728
746-757, 776-787
758-763, 788-793
757-758, 787-788
775-776, 805-806
793
Public Safety B
CH.
62
758
787
CH.
64
770
C
CH.
65
776
805
A
D
CH.
66
782
Public Safety B
CH.
67
788
CH.
68
794
CH.
69
800
UPPER 700 MHZ BAND
(CHANNELS 60-69)
Bandwidth
Pairing
Area Type
12 MHz
12 MHz
12 MHz
6 MHz
6 MHz
22 MHz
10 MHz
2 MHz
2 MHz
2 x 6 MHz
2 x 6 MHz
2 x 6 MHz
unpaired
unpaired
2 x 11 MHz
2 x 5 MHz
2 x 1 MHz
2 x 1 MHz
EA
CMA
CMA
EAG
EA
REAG
Nationwide
MEA
MEA
Licenses
176
734
734*
6*
176
12
1**
52***
52***
*Blocks have been auctioned.
**Block is associated with the 700 MHz Public/Private Partnership.
***Guard Bands blocks have been auctioned, but are being relocated.
5.
This band plan provides a balanced mix of geographic service area licenses and
spectrum block sizes for the 62 megahertz of commercial spectrum to be auctioned. We will
auction two 12-megahertz spectrum blocks (comprised of paired 6-megahertz blocks), one
licensed by Cellular Market Areas (CMAs) and one by Economic Areas (EAs); one 22megahertz spectrum block (paired 11-megahertz blocks) by Regional Economic Area Groupings
(REAGs); and one 6-megahertz unpaired spectrum block by EAs. We also will designate one
10-megahertz spectrum block (paired 5-megahertz blocks), the Upper 700 MHz Band D Block,
to be licensed on a nationwide basis and used as part of the 700 MHz Public/Private Partnership
entered between this commercial licensee and the licensee that will be assigned the public safety
broadband spectrum (hereinafter, the Public Safety Broadband Licensee).
6.
In addition to revising the band plan, we adopt new, more stringent performance
requirements for the commercial licenses in the 700 MHz Band that will be auctioned. These
rules will require licensees to meet both interim and end-of-term construction benchmarks.
CMA and EA licensees are required to provide service sufficient to cover 35 percent of the
geographic area of their licenses within four years, and 70 percent of this area within ten years
(the license term), and REAG licensees must provide service sufficient to cover 40 percent of the
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806
Federal Communications Commission
FCC 07-132
population of their license areas within four years and 75 percent of the population within ten
years. For licensees that fail to meet the applicable interim benchmark, the license term is
reduced by two years, and the end-of-term benchmark must be met within eight years. At the
end of the license term, licensees that fail to meet the end-of-term benchmark will be subject to a
“keep what you use” rule, which will make unused spectrum available to other potential users.
7.
In addition, we determine that for one commercial spectrum block in the 700
MHz Band, the Upper 700 MHz Band C Block, licensees will be required to allow customers,
device manufacturers, third-party application developers, and others to use devices and
applications of their choice, subject to certain conditions. We conclude, however, that at this
time it would not serve the public interest to mandate broader requirements, such as a wholesale
requirement for the unauctioned 700 MHz Band spectrum.
8.
We also make certain determinations regarding procedures for the upcoming
auction of licenses in the 700 MHz Band. Based on the record, we conclude that anonymous
bidding procedures, which withhold from public release until after the auction closes any
information that may indicate specific applicants' interests in the auction, including their license
selections and bidding activity, will promote competition for 700 MHz licenses regardless of any
pre-auction measurement of likely competition in the auction. We also clarify by declaratory
ruling the continuing nature of the obligation to report communications that are prohibited by the
Part 1 competitive bidding anti-collusion rule. In addition, we conclude that using package
bidding solely with respect to the licenses in the Upper 700 MHz Band C Block (and not with
respect to licenses in the other 700 MHz Band spectrum blocks) will assist bidders that are
seeking to create a nationwide footprint without, at the same time, imposing disadvantages on
parties that wish to bid on individual licenses comprising the nationwide footprint. In light of the
innovative provisions we adopt with respect to the 700 MHz Band licenses, we find that blockspecific aggregate reserve prices should be established for the upcoming auction of licenses for
700 MHz Band spectrum. If the block-specific aggregate reserve is met, all licenses in the block
will be assigned based on the auction results. If it is not, we provide for a prompt auction of
alternative, less restrictive licenses for the A, B, C, and E Blocks, subject to the same applicable
reserves. Consistent with existing authority delegated to the Wireless Telecommunications
Bureau (Wireless Bureau or WTB) to establish detailed final auction procedures, we delegate to
the Wireless Bureau the discretion to propose and implement final auction procedures to
implement these conclusions.
9.
We make several changes to the 700 MHz Guard Bands spectrum. With one
exception, all existing Guard Bands licensees have agreed to voluntarily modify their
authorizations to “repack” their licenses into a reconfigured Guard Band A Block. All license
modifications are consensual, except the relocation of one Guard Band A Block license held by
PTPMS II Communications, L.L.C., and the downward shifting by 1 megahertz of its two Guard
Band B Block licenses. We will afford all Guard Band A Block licensees the same technical
rules that apply to the adjacent commercial spectrum, including less restrictive out-of-band
emissions limits and frequency coordination requirements, and the ability to deploy cellular
architectures. Collectively, these license modifications will serve the public interest by enabling
a downward shift of the Upper 700 MHz Band public safety spectrum, which will address
concerns of interference to critical public safety communications in border areas, and facilitate
the deployment of a nationwide broadband public safety network. With the exception of PTPMS
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FCC 07-132
II’s B Block licenses, we also relocate and reduce the Guard Band B Block from 4 to 2
megahertz, which will provide an additional 2 megahertz of commercial spectrum for auction.
10.
With respect to the public safety spectrum in the 700 MHz Band, we shift the 700
MHz Public Safety Band 1 megahertz (as discussed above) and reconfigure this band to provide
for public safety broadband. Specifically, we redesignate the public safety wideband spectrum
for broadband use and consolidate the existing narrowband channels to the upper half of the
public safety spectrum while designating the lower half for nationwide interoperable broadband
communications. The revised band plan is illustrated below.
FIGURE 2: REVISED 700 MHZ BAND PLAN FOR PUBLIC SAFETY SERVICES
763
769
775
793
Public Safety Allocation
Commercial
G
Allocation Broadband
Narrowband
B
CH. 62
758
CH. 63
764
Commercial Allocation
CH. 64
770
799
805
Public Safety Allocation
CH. 65
776
CH. 66
782
Broadband
CH. 67
788
G
Narrowband
B
CH. 68
794
CH. 69
800
806
11.
The revised band plan for the 700 MHz Public Safety Band consists of a 10megahertz block (comprised of paired 5-megahertz blocks) allocated for broadband
communications at the bottom of the band (763-768/793-798 MHz), a 2-megahertz internal
guard band block (comprised of paired 1-megahertz blocks) (768-769/798-799 MHz), and a 12megahertz block (comprised of paired 6-megahertz blocks) allocated for narrowband
communications at the top of the band (769-775/799-805 MHz).
12.
We also revise the licensing scheme for public safety users within the band. To
effectuate the consolidation of the narrowband channels to the top of the public safety band, we
establish a timeframe for transitioning existing narrowband operations. Transition of these
operations must be completed no later than the DTV transition date. We also require the Upper
700 MHz Band D Block licensee to pay the costs of reconfiguring the public safety spectrum.
Concerning the broadband segment, we address certain technical criteria related to power levels
and the establishment of a broadband standard with a nationwide level of interoperability. As
noted above, we also create a single nationwide license for the public safety broadband spectrum
and specify the criteria, selection process, and responsibilities of the Public Safety Broadband
Licensee.
13.
As the means for enabling the construction of a nationwide, interoperable
broadband public safety network, we provide for the establishment of the 700 MHz
Public/Private Partnership between the commercial D Block licensee and the Public Safety
Broadband Licensee in the Upper 700 MHz Band. The terms of the 700 MHz Public/Private
Partnership will be governed both by Commission rules and by the Network Sharing Agreement
(NSA), which is to be negotiated by the winning bidder for the D Block license and the Public
Safety Broadband Licensee. In our rules, we identify certain network specifications to be
incorporated into the NSA, mandate certain terms, and set forth build-out requirements. In
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FCC 07-132
addition, we elaborate on key essential components of the 700 MHz Public/Private Partnership,
including the preemptible, secondary access that the Upper 700 MHz Band D Block licensee has
to the public safety broadband spectrum, and the priority access that the Public Safety Broadband
Licensee has, on an emergency basis, to the commercial D Block broadband spectrum. We also
provide several safeguards relating to the 700 MHz Public/Private Partnership, including rules
governing the establishment, execution, and application of the NSA, to ensure timely completion
of the NSA negotiations and account for disputes that may arise during the negotiations and
following execution, as well as a framework to govern ongoing operations and account for the
contingency of breaches of obligations under the NSA by either party. This framework involves
the imposition of certain structural and other requirements on the D Block licensee and the
network intended to protect public safety broadband service. Further, we provide means for
public safety entities to (1) obtain an earlier build-out of broadband networks than provided for
in the NSA, (2) build their own broadband networks in areas not included in the NSA, and (3)
conduct wideband operations via a limited and conditioned waiver process.
II.
BACKGROUND
14.
As described above, we adopt this Second Report and Order in response to a
number of factors, including statutory changes that will affect the 108 megahertz of spectrum in
the 700 MHz Band (Television Channels 52-69 in the 698-806 MHz band). In this background
section, we first discuss the DTV transition, which will reclaim the 700 MHz Band for new uses,
including commercial and public safety services. We then provide a brief description of three
proceedings related to the 700 MHz Band, including the Commercial Services, Guard Bands, and
Public Safety proceedings. Relevant decisions made in the 700 MHz Report and Order also are
described in this section. Finally, we discuss the outstanding issues from these proceedings that
were not decided in the 700 MHz Report and Order or were raised in the 700 MHz Further
Notice, which are addressed in this Second Report and Order.
A.
DTV Transition and Reclamation of the 700 MHz Band
15.
The DTV Act set a firm deadline of February 17, 2009 for the 700 MHz Band
spectrum to be cleared of analog transmissions and made available for public safety and
commercial services as part of the DTV transition. The DTV Act also established two specific
statutory deadlines for the auction of recovered analog spectrum in the 700 MHz Band: (1) the
auction must begin no later than January 28, 2008; and (2) the auction proceeds must be
deposited in the Digital Television Transition and Public Safety Fund by June 30, 2008.9 These
statutory changes provide for the clearing of the Upper and Lower 700 MHz Bands and eliminate
any uncertainty about availability of this spectrum for public safety, commercial, and other
wireless services.
16.
Prior to the DTV Act, the Commission reallocated the 700 MHz Band in separate
proceedings, first for the 60 megahertz covering TV Channels 60-69 (“Upper 700 MHz Band”)10
9
See Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) (“DRA”). Title III of the DRA is the
DTV Act. See generally 700 MHz Commercial Services Notice; 700 MHz Guard Bands Notice; 700 MHz Public
Safety Eighth Notice.
10
See Reallocation of Television Channels 60-69, the 746-806 MHz Band, ET Docket No. 97-157, Report and
Order, 12 FCC Rcd 22953 (1998), recon. 13 FCC Rcd 21578 (1998) (Upper 700 MHz Reallocation Order); Service
(continued….)
9
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FCC 07-132
and then for the 48 megahertz covering TV Channels 52-59 (“Lower 700 MHz Band”).11 In the
Balanced Budget Act of 1997 (“Balanced Budget Act”),12 Congress specifically directed that the
allocation of the Upper 700 MHz Band include 24 megahertz of spectrum for public safety and
36 megahertz for commercial services. Accordingly, the Commission divided the Upper 700
MHz Band to include a 24-megahertz allocation for public safety use,13 and a 36-megahertz
allocation for commercial use, of which 6 megahertz comprised the Guard Bands spectrum.14
17.
With regard to the Lower 700 MHz Band, Congress also directed that the
Commission “reclaim and organize” spectrum beyond that in the Upper 700 MHz Band, “in a
manner consistent with the objectives” of Section 309(j)(3) of the Act.15 While Congress did not
direct the amount of spectrum to be reclaimed, the Commission determined that all broadcasters
using digital transmission systems could be accommodated in the core TV Channels 2-51. As a
result, the 48 megahertz of spectrum in the Lower 700 MHz Band (698-746 MHz) would
become available for new services through competitive bidding.16 The following Figure shows
the location of Commercial Services, Guard Bands, and Public Safety spectrum within the Upper
and Lower 700 MHz Bands.
(Continued from previous page)
Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket
No. 99-168, First Report and Order, 15 FCC Rcd 476 (2000) (Upper 700 MHz First Report and Order).
11
See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), GN
Docket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Lower 700 MHz Report and Order); Reallocation
and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), GN Docket No. 01-74,
Memorandum Opinion and Order, 17 FCC Rcd 11613 (2002) (Lower 700 MHz MO&O).
12
See Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 § 3004 (1997) (adding new § 337 of the
Communications Act); Upper 700 MHz Reallocation Order, 12 FCC Rcd at 22955 ¶ 5.
13
See 700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14838-39 ¶¶ 5-6; see generally 700 MHz Public Safety
Eighth Notice.
14
See 700 MHz Guard Bands Notice, 21 FCC Rcd at 10414 ¶ 1 n.1.
15
47 U.S.C. § 309(j)(14)(C)(i)(II) (2005). Among the objectives of Section 309(j) of the Act are “the development
and rapid deployment of new technologies, products, and services for the benefit of the public, including those
residing in rural areas;” “promoting economic opportunity and competition and ensuring that new and innovative
technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies,
and businesses owned by members of minority groups and women;” and the “efficient and intensive use of the
electromagnetic spectrum.” 47 U.S.C. § 309(j)(3).
16
See Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service, MM Docket
No. 87-268, Memorandum Opinion and Order on Reconsideration of the Sixth Report and Order, 13 FCC Rcd
7418, 7435-36 ¶ 42 (1998) (DTV MO&O of the Sixth Report and Order). The Commission stated that expanding
the DTV core spectrum would permit recovery of 108 megahertz of spectrum at the end of the DTV transition
period. Id. at 7436 ¶ 45.
10
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FIGURE 3: THE 700 MHZ BAND (PRIOR TO REVISIONS)
698
746 747
762 764
G
B
G
B
LOWER 700 MHZ BAND
(CHANNELS 52-59)
B.
776 777
Public
Safety
G
B
792 794
G
B
806
Public
Safety
UPPER 700 MHZ BAND
(CHANNELS 60-69)
700 MHz Commercial Services Proceeding
18.
The portion of the 700 MHz Band currently designated for commercial services is
comprised of 78 megahertz of spectrum in the 698-746, 747-762, and 777-792 MHz bands (“700
MHz Commercial Services Band”),17 and an additional 6 megahertz portion, in the 746-747/776777 MHz and 762-764/792-794 MHz bands, designated as Guard Bands (“700 MHz Guard
Bands”) to protect users in the adjacent 700 MHz Public Safety spectrum. The remaining 24
megahertz of spectrum in the 700 MHz Band, in the paired 764-776 MHz and 794-806 MHz
band, is allocated for public safety uses.
19.
With regard to the Upper 700 MHz Band, the Commission initially determined
that the Guard Band licenses in the A and B Blocks were to be assigned over the 52 Major
Economic Areas (MEAs)18 and the remaining licenses in the C and D Blocks were to be assigned
over the six Economic Area Groupings (EAGs).19 The following Figure shows the current band
plan for the Upper 700 MHz Band. The Commission has auctioned the Guard Band A and B
Blocks, while the commercial spectrum in the Upper 700 MHz Band C and D Blocks has not yet
been auctioned.
17
See generally 700 MHz Commercial Services Notice.
18
Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT
Docket No. 99-168, Second Report and Order, 15 FCC Rcd 5299, 5329-30 ¶¶ 69-71 (2000) (Upper 700 MHz
Second Report and Order).
19
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 500-502 ¶¶ 56-61.
11
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FIGURE 4: UPPER 700 MHZ BAND (PRIOR TO REVISIONS)
747
762
A C
D
CH.
60
746
CH.
61
752
Block
A
B
C
D
777
B
CH.
62
758
Public Safety A
CH.
63
764
Frequencies
746-747, 776-777
762-764, 792-794
747-752, 777-782
752-762, 782-792
CH.
64
770
792
C
D
CH.
65
776
B Public Safety
CH.
66
782
Bandwidth
Pairing
2 MHz
4 MHz
10 MHz
20 MHz
2 x 1 MHz
2 x 2 MHz
2 x 5 MHz
2 x 10 MHz
CH.
67
788
CH.
68
794
Area Type
MEA
MEA
700 MHz EAG
700 MHz EAG
CH.
69
800
806
Licenses
52*
52*
6
6
*Blocks have been auctioned.
20.
The Commission’s original decision to use large geographic license areas based
on EAGs for the C and D Blocks in the Upper 700 MHz Band was based on a number of factors.
20
These included the positions of commenters in the record, the likely uses of this spectrum, a
previous statutory obligation to auction the spectrum and deposit the proceeds by a specific
date,21 and the Commission’s desire to help bidders avoid costs associated with initial license
area sizes that are too small.22 In addition, the Commission observed that large license areas
such as EAGs could allow licensees to take advantage of economies of scale to develop new
technologies and services, and could be aggregated to form nationwide licenses.23
21.
With regard to the Lower 700 MHz Band, the Commission divided the 48
megahertz of this spectrum into blocks of paired and unpaired spectrum to accommodate a range
of new fixed, mobile, and broadcast services and technologies.24 The following Figure shows the
current band plan for the Lower 700 MHz Band. The C Block was to be assigned across CMAs
(i.e., Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs)), while the
remaining blocks were to be assigned across EAGs. Although Congress specifically directed the
Commission to delay the auction of licenses in the Lower 700 MHz Band, it made an exception
20
See id. at 500 ¶ 56.
21
See Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 113 stat. 2502, Appendix E, Sec. 213(a)(3),
reprinted in 47 U.S.C.A. § 337 Note at Sec. 213(a)(3). With regard to previous statutory requirements to complete
the auction by a certain date, in the Upper 700 MHz First Report and Order, the Commission stated that its
experience “has shown that simultaneous multiple-round auctions for a larger number of licenses are more complex
and take longer to complete than similar auctions involving fewer licenses.” Upper 700 MHz First Report & Order,
15 FCC Rcd at 500 ¶ 57.
22
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 500 ¶¶ 56-57.
23
Id. at 501 ¶ 59.
24
See Lower 700 MHz Report and Order, 17 FCC Rcd at 1029, 1054-55 ¶¶ 13, 76.
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for C Block and D Block licenses, which it directed the Commission to auction immediately.25
The remaining A, B, and E Blocks have not been auctioned.
FIGURE 5: LOWER 700 MHZ BAND (PRIOR TO REVISIONS)
698
Block
A
B
C
D
E
A
B
C
D
E
A
B
C
CH.
52
CH.
53
CH.
54
CH.
55
CH.
56
CH.
57
CH.
58
CH.
59
704
710
Frequencies
698-704, 728-734
704-710, 734-740
710-716, 740-746
716-722
722-728
716
722
Bandwidth
12 MHz
12 MHz
12 MHz
6 MHz
6 MHz
728
734
740
Pairing
Area Type
2 x 6 MHz
2 x 6 MHz
2 x 6 MHz
unpaired
unpaired
700 MHz EAG
700 MHz EAG
CMA
700 MHz EAG
700 MHz EAG
746
Licenses
6
6
734*
6*
6
*Blocks have been auctioned.
22.
In contrast to its approach for the Upper 700 MHz Band, the Commission initially
decided to make the Lower 700 MHz Band available using both large and small geographic
service areas. The Commission observed that many commenters in the Lower 700 MHz Band
proceeding, especially small and rural providers, favored small geographic areas such as
CMAs,26 and it therefore decided to assign the 12-megahertz C Block over CMAs.27 The
Commission further observed that a 12-megahertz block was a significant amount of spectrum to
assign across small geographic areas and concluded that this approach would afford meaningful
opportunities to small and rural wireless providers.28 While the Commission declined to adopt
nationwide licenses,29 it assigned the two remaining 12-megahertz paired blocks, as well as the
two 6-megahertz unpaired blocks, over EAGs for many of the same reasons cited in its
proceeding for the Upper 700 MHz Band.30
23.
In the 700 MHz Commercial Services Notice adopted in August 2006, we sought
comment on possible revisions to the band plan and service rules concerning commercial
25
Auction Reform Act of 2002, Pub. L. No. 107-195, 116 Stat. 715 (codified as 47 U.S.C. § 309(j)(15)).
26
See Lower 700 MHz Report and Order, 17 FCC Rcd at 1061 ¶¶ 95-96.
27
Id. at 1059 ¶ 90.
28
See Lower 700 MHz MO&O, 17 FCC Rcd at 11619 ¶ 14 n.32 (noting that one 12-megahertz block of spectrum “is
significant” in that it equals 25 percent of the 48 megahertz of spectrum in the Lower 700 MHz Band).
29
Lower 700 MHz Report and Order, 17 FCC Rcd at 1059 ¶ 90, 1060-61 ¶ 94.
30
Id. at 1059-60 ¶¶ 91, 93. The Commission used the definition of EAGs as defined in the Upper 700 MHz Band
proceeding, which included a particular definition concerning the division of the Gulf of Mexico between two
EAGs. See id. at 1059 ¶ 90 & n.257.
13
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licenses in the 698-746, 747-762, and 777-792 MHz bands.31 Among other issues, we sought
comment on ways the Commission could promote access to spectrum and the provision of
service by assigning the spectrum that had not yet been auctioned over smaller geographic areas,
whether we should modify the band plan with regard to the size and location of the spectrum
blocks, whether we should revise the performance standards for these licenses, and whether to
modify any of the technical rules in these bands. In addition, we sought comment on several
auctions-related issues and license renewal procedures. We also tentatively concluded that the
Commission’s 911/E911 rules and hearing aid compatibility rules should be extended to apply to
commercial services in the 700 MHz Band, as well as to CMRS services in other bands to the
extent they meet certain criteria.
C.
700 MHz Guard Bands Proceeding
24.
When the Commission originally allocated the Upper 700 MHz Band,32 its goal
was to ensure that operations in the 36 megahertz of commercial spectrum would not cause
harmful interference to 700 MHz public safety operations.33 Accordingly, the Commission
created two paired Guard Bands, the 2-megahertz A Block at 746-747/776-777 MHz (consisting
of paired 1-megahertz blocks) and a 4-megahertz B Block at 762-764/792-794 MHz (paired 2megahertz blocks) to protect the public safety spectrum from interference resulting from
commercial operations in the adjacent Upper 700 MHz Band C and D Blocks.34
25.
While recognizing the Guard Bands’ primary role as protecting public safety
operations, the Commission permitted operations within the Guard Bands to “allow for effective
and valued use of the spectrum, consistent with sound spectrum management, rather than the
creation of Guard Band spectrum of little use.”35 To minimize the potential for harmful
interference to public safety operations, the Commission precluded Guard Bands operations from
employing cellular system architectures,36 and required entities operating in the Guard Bands to
comply with stringent out-of-band emissions criteria37 and frequency coordination procedures.38
The Commission created the Guard Band Manager classification, a new class of commercial
31
See generally 700 MHz Commercial Services Notice, 21 FCC Rcd at 9346-48 ¶¶ 1-2.
32
See Reallocation of Television Channels 60-69, the 746-806 MHz Band, ET Docket No. 97-157, Report and
Order, 12 FCC Rcd 22953 (1998), recon. 13 FCC Rcd 21578 (1998); Service Rules for the 746-764 and 776-794
MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 99-168, First Report and Order,
15 FCC Rcd 476 (2000) (Upper 700 MHz First Report and Order).
33
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 490-91 ¶ 33.
34
Id.
35
Id. at 491 ¶ 34. The Commission also allocated each of the Upper 700 MHz spectrum blocks so that they would
align with as few incumbent television broadcast channels as possible, in order to expedite deployment, reduce the
number of potential negotiated agreements with broadcasters, and avoid a problem of “free riding” third parties
benefiting from others’ negotiations. Id. at 492 ¶ 37.
36
Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT
Docket No. 99-168, Second Report and Order, 15 FCC Rcd 5299, 5308-09 ¶ 19 (2000) (Upper 700 MHz Second
Report and Order).
37
Id. at 5307-08 ¶ 17.
38
Id. at 5308 ¶ 18.
14
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licensee engaged specifically in leasing spectrum to third parties on a for-profit basis,39 and
required that Guard Band Managers control the use of the spectrum consistent with the strict
interference and frequency coordination rules designed to protect public safety.40
26.
In the 700 MHz Guard Bands Notice adopted in September 2006, we sought
comment on possible changes to the Part 27 service rules applicable to existing and prospective
Upper 700 MHz licensees in the A Block and the B Block.41 Two developments prompted the
Commission to seek comment on possible rule changes that could promote more efficient and
effective use of the Guard Bands. First, in 2004 as part of the 800 MHz public safety
interference remediation proceeding in WT Docket No. 02-55, the Commission reclaimed all of
Nextel Communications, Inc.’s (Nextel) Guard Bands licenses constituting 42 of the 52 B Block
markets. Second, as noted above, Congress created greater certainty regarding the availability of
unencumbered 700 MHz Band spectrum for wireless commercial and public safety licensees –
including the Guard Bands – by establishing a hard date for completion of the DTV transition.42
27.
We sought comment on possible changes to the existing service rules for the 700
MHz Guard Bands that could result in more intensive use of the spectrum through greater
operational, technical and regulatory flexibility for licensees. As discussed in the 700 MHz
Guard Bands Notice, currently there are few systems operating in the 700 MHz Guard Bands.43
The Commission requires all Guard Band Managers, in lieu of any strict performance
requirement, to file annual reports by March 1 of each year in their license term through January
1, 2015.44 As of March 1, 2007, one of the seven Guard Band Managers reported a total of six
spectrum user agreements (SUAs) for voice and data applications. According to the annual
reports, spectrum use has been limited due to the continued presence of analog broadcasters in
the band until the end of the DTV transition, uncertainty surrounding future plans for the Guard
Bands spectrum reclaimed from Nextel, and limited availability of base station and end user
equipment.45
28.
In the 700 MHz Guard Bands Notice, we also sought comment on proposals
seeking to maximize use of the Upper 700 MHz Band spectrum, including changes not only to
the existing 700 MHz Guard Bands service rules, but also with respect to spectrum allocated for
public safety use. We invited comment on proposals to designate the reclaimed Nextel spectrum
as narrowband channels dedicated to interoperability between critical infrastructure industries
(CII) and public safety entities, or to leave the existing band plan intact but to reallocate the
39
Id. at 5312-13 ¶ 27.
40
Id. at 5313 ¶ 30.
41
Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission’s Rules, Development of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket Nos. 06-169 and
96-86, Notice of Proposed Rule Making, 21 FCC Rcd 10413 (2006) (700 MHz Guard Bands Notice).
42
See Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) (“DTV Act”).
43
700 MHz Guard Bands Notice, 21 FCC Rcd at 10419 ¶ 13.
44
Upper 700 MHz Second Report and Order, 15 FCC Rcd at 5332-33 ¶¶ 75-80.
45
See Band Manager Reports found at
http://wireless.fcc.gov/services/index.htm?job=guardband_reports&id=700_guard.
15
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reclaimed Nextel spectrum exclusively for public safety use.46 We also invited comment on
proposals from existing Guard Band Managers to revise the Upper 700 MHz band plan,
including the “Broadband Optimization Plan” (“BOP”).47
29.
In light of the time constraints inherent in the DTV transition, including the
deadline to commence auctioning all recovered analog TV spectrum in the 700 MHz Band by
January 28, 2008, together with the need to avoid disruption and delay of the planning, funding
and deployment of public safety systems within the 700 MHz Public Safety Band, we tentatively
concluded in the 700 MHz Guard Bands Notice that it would not be appropriate to adopt any
proposal, including the BOP, that entails a consolidation of the narrowband channels to the upper
half of the public safety band unless two issues are resolved expeditiously: (1) public safety’s
recovery of the costs of consolidating narrowband public safety channels; and (2) international
border coordination of public safety narrowband operations.48 In the 700 MHz Guard Bands
Notice, we also tentatively concluded that any decision to shift the existing Upper 700 MHz band
plan in a way that affects “recovered analog spectrum” within the DTV transition would need to
provide sufficient time for the Commission to meet its statutory obligation to commence
auctioning by January 28, 2008.49
D.
700 MHz Public Safety Proceeding
30.
The public safety allocation comprises 24 megahertz of spectrum in the Upper
700 MHz Band, including 12 megahertz of narrowband channels (voice and low speed data) and
12 megahertz of wideband (image/high speed data and slow scan video) communications
channels. The following figure shows the current band plan for a portion of the Upper 700 MHz
Band, including all of the 700 MHz Public Safety Band.
FIGURE 6: 700 MHZ PUBLIC SAFETY BAND (PRIOR TO REVISIONS)
764
767
773
776
794
Public Safety Allocation
Narrowband
CH. 63
764
Narrowband
Wideband
CH. 64
770
797
803
CH. 65
776
Narrowband
Commercial Allocation
CH. 66
782
CH. 67
788
Wideband
CH. 68
794
Narrowband
CH. 69
800
Narrowband Channels
Wideband Channels – General Use, Reserve, Interoperability
46
806
Public Safety Allocation
700 MHz Guard Bands Notice, 21 FCC Rcd at 10429-30 ¶¶ 37-39.
47
See 700 MHz Further Notice, 22 FCC Rcd at 8144-52 ¶¶ 222-242 (detailed discussion of the BOP and other
proposals for the Guard Bands spectrum).
48
700 MHz Guard Bands Notice, 21 FCC Rcd at 10433-34 ¶ 46.
49
Id. at 10434-35 ¶ 47.
16
806
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FCC 07-132
31.
As this figure demonstrates, the current allocation for the public safety portion of
the 700 MHz Band does not allow for broadband applications. The Commission recognized the
importance of broadband communications for public safety users in its December 2005 Report to
Congress submitted pursuant to the Intelligence Reform Act.50 In that report, the Commission
observed that broadband communications applications offer the public safety community a
number of benefits, including video surveillance, real-time text messaging and e-mail, high
resolution digital images and the ability to obtain location and status information of personnel
and equipment in the field.51 The Report to Congress found that emergency response providers
would benefit from development of an integrated, interoperable network capable of delivering
broadband services nationwide.52
32.
In the 700 MHz Public Safety Eighth Notice adopted in March 2006, the
Commission sought comment on the use of the 700 MHz Public Safety Band to accommodate
the broadband needs of public safety.53 The Commission sought comment on various potential
revisions to the band plan for the 700 MHz Public Safety Band, as proposed by the National
Public Safety Telecommunications Council (NPSTC), Motorola, and Lucent.54 All of the
proposals recommended forming a broadband segment that would aggregate the wideband
general use channels, wideband interoperability channels, and wideband reserve spectrum. The
Commission solicited alternative proposals, tentatively concluded not to alter the location of the
narrowband voice and data channels, and sought comment on ways in which public safety
entities could use the 700 MHz Public Safety Band for broadband applications and on measures
that should be taken to promote broadband interoperability.55
33.
In addition, in the 700 MHz Guard Bands Notice, discussed above, we sought
comment on possible modifications to the rules governing the 700 MHz Guard Band licensees,
and on any costs such changes that benefit the Guard Bands would impose on public safety
users.56 We tentatively concluded in the 700 MHz Guard Bands Notice that any proposal
involving relocation of the narrowband channels in the 700 MHz Public Safety Band must
address the source of funds to reprogram existing public safety 700 MHz radios and the
coordination of the proposal with Canada and Mexico.
34.
In the 700 MHz Public Safety Ninth Notice that we subsequently adopted in
December 2006, we proposed “a centralized and national approach to maximize public safety
access to interoperable, broadband spectrum in the 700 MHz Band, and, at the same time, foster
50
See Intelligence Reform Act, Pub. L. No. 108-458, 118 Stat. 3638 § 7502(d)(1) (2004).
51
See Report to Congress on the Study to Assess the Short-Term and Long-Term Needs for Allocations of
Additional Portions of the Electromagnetic Spectrum for Federal, State, and Local Emergency Response Providers,
WT Docket No. 05-157 at 13 ¶ 26 (Dec. 16, 2005) (Intel Reform Act Report).
52
Id.
53
See 700 MHz Public Safety Eighth Notice, 21 FCC Rcd at 3669 ¶ 2.
54
Id. at 3676-79 ¶¶ 14-22.
55
See id. at 3675-76 ¶ 13, 3683-84 ¶ 33.
56
See 700 MHz Guard Bands Notice, 21 FCC Rcd at 10431-35 ¶¶ 42-48.
17
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FCC 07-132
and promote the development and deployment of advanced broadband applications, related radio
technologies, and a modern, IP-based system architecture.”57
E.
700 MHz Report and Order and 700 MHz Further Notice
35.
700 MHz Report and Order. In the 700 MHz Report and Order portion of the
item that we adopted in April 2007, we made several decisions with regard to the commercial
spectrum in the 700 MHz Band. In particular, for the commercial licenses that had not yet been
auctioned we decided to adopt a mix of geographic license sizes, including Cellular Market
Areas (CMAs), Economic Areas (EAs), and Regional Economic Area Groupings (REAGs). In
addition, we found that existing competitive bidding rules and secondary markets rules allow
licensees sufficient opportunity to aggregate licenses during and after an auction and that no
additional rules were needed to facilitate such aggregation. We also took steps to help minimize
uncertainty with regard to licenses in this band by eliminating rules that allowed for comparative
hearings at renewal and by extending the termination date for initial license terms from January
15, 2015, to February 17, 2019. By this action, licensees were provided with an initial license
term that was not to exceed ten years from the end of the DTV transition. To provide greater
operational flexibility to licensees in the Commercial Services Band, we adopted a power
spectral density (PSD) model, with certain limitations, and we allowed these licensees to operate
at higher radiated power in rural areas. We also allowed licenses for already auctioned spectrum
and licenses for unpaired spectrum in the Lower 700 MHz Band to retain the 50 kW ERP level
for base station operations, but we concluded that licenses for paired spectrum in the Lower 700
MHz Band should have limits similar to those established for the Upper 700 MHz Band.
Further, we established that licensees in these bands could meet their radiated power limits on an
average, rather than peak, basis. We also modified our 911/E911 rules to apply to all
Commercial Mobile Radio Services (CMRS) that meet the scope requirements in our current
rules.58 Similarly, we required that all digital CMRS providers, as well as manufacturers of
handsets capable of providing such service, comply with our hearing aid compatibility
requirements, to the extent the services of such providers meet the scope requirements in our
current rules.59
36.
In the 700 MHz Report and Order, we also took steps to promote more efficient
and effective use of the 700 MHz Guard Band spectrum. Specifically, we replaced the “band
manager” leasing regime with the spectrum leasing policies and rules adopted in the
Commission’s Secondary Markets proceeding. In applying the Secondary Markets spectrum
leasing rules to the 700 MHz Guard Bands, we also eliminated the special restrictions imposed
under the Guard Bands licensing regime that prevented licensees from using their spectrum as a
wireless service provider and restricted their ability to lease to affiliates. These changes created
more operational flexibility for 700 MHz Guard Band licensees.60
37.
700 MHz Further Notice. In the 700 MHz Further Notice, which consolidated the
700 MHz Commercial Services, 700 MHz Guard Bands, and 700 MHz Public Safety
57
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14838 ¶ 3.
58
700 MHz Report and Order, 22 FCC Rcd at 8108-14 ¶¶ 120-136.
59
Id. at 8115-21 ¶¶ 137-150.
60
Id. at 8121-28 ¶¶ 151-168.
18
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proceedings, we sought comment on a number of issues affecting both commercial and public
safety services in the 700 MHz Band. With regard to the commercial spectrum, we proposed to
maintain the current band plan for the Lower 700 MHz Band and license the A Block on an EA
basis, the B Block on a CMA basis, and the E Block on an REAG basis.61 For the Upper 700
MHz Band, we sought comment on several band plan proposals, which differ both in terms of
the size of spectrum blocks as well as the size of geographic service areas.62 We also sought
additional comment on the performance requirements for commercial licensees that have not yet
been auctioned in the 700 MHz Band and proposed the use of geographic benchmarks for these
licensees.63
38.
In the 700 MHz Further Notice, we sought comment on several issues affecting
the Guard Bands spectrum, including a tentative conclusion not to adopt certain proposals to
restructure the Upper 700 MHz Band, including the BOP.64 While we tentatively concluded that
we do not have the legal authority65 and that it would not be in the public interest to adopt the
BOP,66 we also sought comment on other measures that the Commission could take to promote
the most efficient use of the Guard Bands spectrum.67
39.
With regard to the 700 MHz Public Safety Band, we sought comment in the 700
MHz Further Notice on a tentative conclusion to redesignate the wideband spectrum to
broadband use, consistent with a nationwide interoperability standard, and to prohibit wideband
operations on a going forward basis.68 In addition, we tentatively concluded that, should we
adopt this broadband approach, we would reconfigure the 700 MHz Public Safety spectrum to
consolidate the narrowband spectrum at the top and locate the broadband spectrum at the bottom
of this allocation.69
40.
In the 700 MHz Further Notice, we also sought comment on a proposal, the
“Public Safety Broadband Deployment Plan,” filed by Frontline Wireless, LLC (“Frontline”).70
In particular, we asked commenters to address Frontline’s proposal that the Commission create a
nationwide 10-megahertz commercial license that would require the licensee to construct and
61
700 MHz Further Notice, 22 FCC Rcd at 8129-31 ¶¶ 177-81.
62
See id. at 8131-40 ¶¶ 182-206.
63
Id. at 8140-43 ¶¶ 207-20.
64
Id. at 8144-54 ¶¶ 222-49.
65
Id. at 8147-50 ¶¶ 228-34.
66
Id. at 8150-52 ¶¶ 235-41.
67
Id. at 8152 ¶ 242.
68
Id. at 8155-56 ¶¶ 252-3.
69
Id. at 8156-57 ¶¶ 254-7.
70
Id. at 8160-68 ¶¶ 268-90. See generally Frontline 700 MHz Public Safety Ninth Notice Comments; Comments of
Frontline Wireless, LLC, WT Docket No. 06-150 (filed Mar. 6, 2007); Frontline 700 MHz Public Safety Ninth
Notice Reply Comments; Letter from Matthew S. DelNero, counsel to Frontline Wireless, LLC, to Marlene H.
Dortch, Secretary, FCC, Ex Parte in WT Docket Nos. 96-86 and 06-150 and PS Docket No. 06-229 (filed Mar. 12,
2007); Letter from John Blevins, counsel to Frontline Wireless, LLC, to Marlene H. Dortch, Secretary, FCC, Ex
Parte in WT Docket Nos. 06-150 and 06-169 and PS Docket No. 06-229 (filed Mar. 27, 2007).
19
Federal Communications Commission
FCC 07-132
operate a nationwide, interoperable broadband network that would be shared with a public safety
broadband licensee providing broadband service on the lower portion of the 700 MHz Public
Safety spectrum.71 We also sought comment on whether the Guard Band B Block should be
integrated with a new block of spectrum to be made available in the Upper 700 MHz Band for
purposes of implementing the Frontline proposal,72 as well as the possible effects of this proposal
on the remaining commercial spectrum in the Upper 700 MHz Band.73
41.
On May 21, 2007, Google Inc. (“Google”) filed an ex parte letter in this
proceeding, asking that the Commission seek immediate comment on certain proposals regarding
the service rules for the 700 MHz Band spectrum that is to be auctioned.74 On May 24, 2007, the
Wireless Bureau issued a public notice requesting comment on those proposals.75
III.
DISCUSSION
42.
In this Second Report and Order, we take several interrelated actions with respect
to the commercial services, including the Guard Bands, and the public safety services to promote
broadband deployment throughout the 700 MHz Band to better serve American consumers and
the needs of the public safety community. With regard to the commercial services in the 700
MHz Band, we increase the amount of spectrum to be auctioned, from 60 megahertz to 62
megahertz, by eliminating 2 megahertz of the Guard Band B Block, and we provide for a revised
mix of small, regional, and large geographic service area licenses – CMAs, EAs, and REAGs
respectively – and include one large 22-megahertz spectrum block (comprised of paired 11megahertz blocks). We also designate a 10-megahertz block of commercial spectrum
(comprised of paired 5-megahertz blocks), the Upper 700 MHz Band D Block, that will be part
of the 700 MHz Public/Private Partnership. With regard to the 700 MHz Public Safety Band, we
designate the public safety wideband spectrum for broadband use consistent with a nationwide
interoperability standard, consolidate the existing narrowband allocations in the upper half of the
700 MHz Public Safety Band, locate broadband communications in the lower part, and create a
Public Safety Broadband Licensee to manage the development of a broadband communications
network with a nationwide level of interoperability. We also adjust the locations of the 700 MHz
Guard Band blocks to permit a 1-megahertz shift of the 700 MHz Public Safety Band to address
public safety narrowband operations in border areas of the country.
43.
In addition, we adopt policies and rules relating to the establishment of the
public/private partnership between the commercial Upper 700 MHz Band D Block licensee and
the Public Safety Broadband Licensee, with both working together in developing a nationwide
interoperable broadband network available to state and local public safety users. We also decide
that block-specific aggregate reserve prices should be applied to the 700 MHz Band licenses in
the upcoming auction. As detailed below, if the aggregate reserve price is not satisfied for
71
See 700 MHz Further Notice, 22 FCC Rcd at 8164 ¶ 277.
72
Id. at 8164 ¶ 278.
73
Id. at 8164 ¶ 279.
74
Letter from Richard S. Whitt, Esq., Washington Telecom and Media Counsel, Google, Inc. to Marlene H. Dortch,
Secretary, FCC, filed May 21, 2007 (Google Ex Parte).
75
Comment Sought on Google Proposals Regarding Service Rules for 700 MHz Spectrum, 72 Fed. Reg. 29930
(May 30, 2007) (Google 700 MHz Service Rules PN).
20
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FCC 07-132
licenses in the A, B, or E blocks, we will offer alternative licenses subject to different
performance requirements from those adopted below. With respect to the C Block licenses, if
the aggregate reserve is not met, we make other changes to the provisions adopted below with
respect to alternative licenses to be offered. The revised band plan for the 700 MHz Band for the
commercial services, including the Guard Bands, and the public safety services, is set forth in
detail below.
A.
Commercial 700 MHz Band, Including 700 MHz Guard Bands
1.
Band Plan
44.
As discussed herein, we revise the band plan for the commercial 700 MHz Band
spectrum, including Guard Band spectrum, consistent with the record before us, to balance
several competing goals, including facilitating access to spectrum by both small and large
providers, providing for the efficient use of the spectrum, and better enabling the delivery of
broadband services in the 700 MHz Band. In particular, we adopt a revised band plan that
provides for auctioning a total of 62 megahertz of spectrum – 30 megahertz in the Lower 700
MHz Band and 32 megahertz in the Upper 700 MHz Band – in the upcoming 700 MHz Band
auction. As discussed more fully below, we are designating one 10-megahertz block (comprised
of paired 5-megahertz blocks) of this commercial spectrum, adjacent to the Public Safety
spectrum, to be used as part of the 700 MHz Public/Private Partnership. With regard to the size
of geographic service areas and size of the spectrum blocks of the licenses to be auctioned, we
take an approach similar to the one we took for the AWS-1 service rules by adopting a mix of
geographic area sizes, comprised of CMAs, EAs, and REAGs, and including one large 22megahertz block (comprised of paired 11-megahertz blocks).76
a.
Commercial Spectrum (Excluding Guard Bands Spectrum)
(i)
Background
45.
700 MHz Commercial Services Notice. In the 700 MHz Commercial Services
Notice, we sought comment on the band plan for the then 60 megahertz of non-Guard Band
commercial spectrum that remained to be auctioned in the 700 MHz Band, including both the
size and alignment of spectrum blocks and the size of geographic service areas for the
spectrum.77 We noted that the Commission had already auctioned 18 megahertz of non-Guard
Band commercial spectrum – 12 megahertz by CMAs and 6 megahertz by EAGs – and that it
initially had planned to auction the then remaining 60 megahertz of this spectrum on an EAG
basis. We asked whether additional licenses should be auctioned over service area sizes other
than EAGs, including over smaller areas such as CMAs.78 We also asked whether the one large
20-megahertz block of paired spectrum in the Upper 700 MHz Band, which had been established
by the Commission to enable a greater range of broadband services in the 700 MHz Band, should
be divided into blocks of smaller bandwidth.79 In addition, we sought comment on whether there
76
See Service Rules for Advanced Wireless Services in the 1.7 and 2.1 GHz Bands, WT Docket No. 02-353, Order
on Reconsideration, 20 FCC Rcd 14058,14069 ¶ 20 (2005) (AWS-1 Order on Reconsideration).
77
See 700 MHz Commercial Services Notice, 21 FCC Rcd at 9362-69 ¶¶ 27-48.
78
Id. at 9347 ¶ 2, 9362-73 ¶¶ 27-59.
79
Id. at 9352-53 ¶ 11, 9370-72 ¶¶ 51-55; Upper 700 MHz First Report and Order, 15 FCC Rcd at 492 ¶ 38.
21
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FCC 07-132
should be any changes to the size and location of spectrum blocks in the Lower 700 MHz Band.80
The original band plan appears in Figure 7.
FIGURE 7: ORIGINAL 700 MHZ BAND PLAN
747
A
B
C
D
E
A
B
C
CH.
52
CH.
53
CH.
54
CH.
55
CH.
56
CH.
57
CH.
58
CH.
59
698
704
710
716
722
728
734
740
762
A C
D
CH.
60
746
B
CH.
61
752
777
CH.
62
758
CH.
63
764
LOWER 700 MHZ BAND
(CHANNELS 52-59)
Block
A
B
C
D
E
A
B
C
D
Frequencies
698-704, 728-734
704-710, 734-740
710-716, 740-746
716-722
722-728
746-747, 776-777
762-764, 792-794
747-752, 777-782
752-762, 782-792
Public Safety A
CH.
64
770
776
792
C
D
CH.
65
CH.
66
782
B
CH.
67
788
Public Safety
CH.
68
794
CH.
69
800
806
UPPER 700 MHZ BAND
(CHANNELS 60-69)
Bandwidth
Pairing
12 MHz
12 MHz
12 MHz
6 MHz
6 MHz
2 MHz
4 MHz
10 MHz
20 MHz
2 x 6 MHz
2 x 6 MHz
2 x 6 MHz
unpaired
unpaired
2 x 1 MHz
2 x 2 MHz
2 x 5 MHz
2 x 10 MHz
Area Type
EAG
EAG
CMA
EAG
EAG
MEA
MEA
EAG
EAG
Licenses
6
6
734*
6*
6
52*
52*
6
6
*Blocks have been auctioned.
46.
In response to the 700 MHz Band Commercial Services Notice, many commenters
proposed that the Commission make a variety of changes with regard to the existing band plan
for this commercial spectrum, as discussed below. Others, however, recommended that we make
few if any changes to the existing band plan for this spectrum concerning the size of the service
areas of the licenses to be auctioned, the size of the spectrum blocks, or the alignment of
spectrum blocks.
47.
With respect to the size of service areas in the 700 MHz Band, many commenters,
including small and regional service providers, entities representing rural interests, and a
coalition including cable television providers, supported revisiting the existing band plan and
suggested that the Commission adopt a mix of the proposed license areas.81 Some of these same
80
See 700 MHz Commercial Services Notice, 21 FCC Rcd at 9369-70 ¶ 50.
81
See Aloha 700 MHz Commercial Services Notice Comments at ii, 3-6; Aloha 700 MHz Commercial Services
Notice Reply Comments at 1-3; Corr 700 MHz Commercial Services Notice Comments at 3; Leap 700 MHz
Commercial Services Notice Comments 4-6; MetroPCS 700 MHz Commercial Services Notice Reply Comments at
2-8; Letter from Michelle C. Farquhar, counsel for SpectrumCo LLC, to Marlene H. Dortch, Secretary, FCC, in WT
Docket No. 06-150 (filed Jan. 9, 2007) (“SpectrumCo Jan. 9, 2007 Ex Parte in WT Docket No. 06-150”) at 2-11;
(continued….)
22
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FCC 07-132
commenters favored making one or more license available based on small geographic areas,82
and supported the use of smaller service areas in general and CMAs in particular.83 Another
coalition of 14 commenters, consisting of small, regional and rural carriers, as well as some state
regulators, also submitted a proposal with a mix of service areas based on REAGs, EAs and
CMAs.84 Other commenters, including small and larger carriers as well as rural interests and a
tribal representative, also supported service areas smaller than EAGs.85 In addition, some
(Continued from previous page)
U.S. Cellular 700 MHz Commercial Services Notice Comments at 4-7; Letter from Multiple Commenters to Marlene
H. Dortch, Secretary, Federal Communications Commission, WT Docket No. 06-150 (filed October 20, 2006)
(“Balanced Consensus Plan”) (signatories to the Balanced Consensus Plan were Alltel, Aloha, Blooston, C&W,
ConnectME Authority, Corr, Dobson, Leap, Maine Office of Chief Information Officer, MetroPCS, NTCA,
Nebraska PSC, North Dakota PSC, RCA, RTG, Union, US Cellular, Vermont Department of Public Service et al.,
Vermont Telephone Company); MilkyWay 700 MHz Commercial Services Notice Comments at 4; see also CTIA
700 MHz Commercial Services Notice Comments at 6 (mix of service areas for AWS-1 spectrum served the wireless
marketplace well).
82
See Aloha 700 MHz Commercial Services Notice Comments at ii, 3-6; Balanced Consensus Plan; Blooston 700
MHz Commercial Services Notice Comments at 2; Corr 700 MHz Commercial Services Notice at 2-4; Dobson 700
MHz Commercial Services Notice Comments at 2-4; Leap 700 MHz Commercial Services Notice Comments at 4-6;
MilkyWay 700 MHz Commercial Services Notice Comments at 1-6; U.S. Cellular 700 MHz Commercial Services
Notice Comments at 4-7.
83
See Aloha 700 MHz Commercial Services Notice Comments at 3; Aloha 700 MHz Commercial Services Notice
Reply Comments at 2-3; Blooston 700 MHz Commercial Services Notice Comments at 1, 2; C&W 700 MHz
Commercial Services Notice Comments at 2; Consumer Federation of America, et al. 700 MHz Commercial
Services Notice Comments at 4-5; Corr 700 MHz Commercial Services Notice Comments at 2-4; Dobson 700 MHz
Commercial Services Notice Comments at 2-4; Howard/Javed 700 MHz Commercial Services Notice Comments at i,
9-11, 21; Leap 700 MHz Commercial Services Notice Comments at 5; MetroPCS 700 MHz Commercial Services
Notice Comments at 13; MetroPCS 700 MHz Commercial Services Notice Reply Comments at 2-3; MilkyWay 700
MHz Commercial Services Notice Comments at 3-5; NextWave 700 MHz Commercial Services Notice Reply
Comments at 12-13; OPASTCO 700 MHz Commercial Services Notice Comments at 2-3; RCA 700 MHz
Commercial Services Notice Comments at 4-8; RCA 700 MHz Commercial Services Notice Reply Comments at 3;
RTG 700 MHz Commercial Services Notice Comments at 2-3; RTG 700 MHz Commercial Services Notice Reply
Comments at 3; U.S. Cellular 700 MHz Commercial Services Notice Comments at 5-7; U.S. Cellular 700 MHz
Commercial Services Notice Reply Comments at 4-5; see also NTCA 700 MHz Commercial Services Notice
Comments at 6 (supporting 20 megahertz allocation over CMAs).
84
The Balanced Consensus Plan recommended a mix of six different licenses, two each over CMAs (22 megahertz
total), EAs (20 megahertz total), and REAGs (12 megahertz paired; 6 megahertz unpaired). This plan also included
a proposed reconfiguration of current D Block in the Upper 700 MHz Band by splitting that block into two 10megahertz blocks. In a subsequent ex parte submission by representatives of multiple parties supporting the
Balanced Consensus Plan, the following changes to the 700 MHz band plan were proposed: (1) in the Lower 700
MHz Band, license one paired block over CMAs, and one paired block over EAs, and the remaining unpaired
spectrum over REAGs; (2) in the Upper 700 MHz Band, subdivide the 20-megahertz block into two 10-megahertz
paired blocks, and make one of those two blocks available on a basis smaller than an REAGs. Letter from Michael
Lazarus, filing on behalf of MetroPCS Communications Inc. et al., to Marlene H. Dortch, Secretary, FCC, Ex Parte
in WT Docket Nos. 06-150 (filed Apr. 18, 2007).
85
See MilkyWay 700 MHz Commercial Services Notice Comments at 4-5 (supporting a mix of different license
sizes, including CMAs); Polar 700 MHz Commercial Services Notice Comments at 1 (urging CMA licenses over 20
megahertz); Frontier 700 MHz Commercial Services Notice Comments at 1, 5-7 (supports reducing size of all
unauctioned spectrum to areas no larger than RSAs and MSAs; also supports county-sized licenses); T-Mobile 700
MHz Commercial Services Notice Reply Comments at 3 (geographic areas smaller than EAGs are more likely to fall
within business plans of parties with limited resources); OPASTCO 700 MHz Commercial Services Notice
Comments at 2; NextWave 700 MHz Commercial Services Notice Reply Comments at 12-13; Howard/Javed 700
(continued….)
23
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FCC 07-132
commenters offered support for smaller service areas and also advocated unlicensed use of the
spectrum.86 Access Spectrum/Pegasus supported the use of MEAs, which are the service areas
for the Guard Band licenses, in connection with its specific proposal to reconfigure the Upper
700 MHz Band.87
48.
Other commenting parties, including Cingular, Verizon Wireless, Motorola, and
AT&T, opposed revising the band plan to provide for additional small-area licenses in the 700
MHz Band.88 CTIA stated that, in evaluating possible revisions and determining the appropriate
license area size(s), the Commission should consider all of the 700 MHz Band spectrum (i.e.,
both the previously auctioned and the unauctioned spectrum), the AWS-1 licensing frameworks,
and the various secondary market opportunities available today.89 DIRECTV/EchoStar
recommended that we include a nationwide license in the mix of license sizes.90
49.
With respect to the size of the spectrum blocks that remained to be auctioned,
commenting parties disagreed as to whether we should include a large 20-megahertz block
(comprised of paired 10-megahertz blocks) or instead create differently sized or smaller blocks.
In particular, Motorola, Qualcomm, Verizon Wireless, CTIA, and DIRECTV/EchoStar opposed
dividing the existing 20-megahertz D Block in the Upper 700 MHz Band into one or more
additional blocks, asserting that a wider spectrum block may result in benefits in terms of
providing broadband and other advanced services, and that this block is the only large spectrum
block in the band.91 Access Spectrum/Pegasus, in connection with its “Broadband Optimization
(Continued from previous page)
MHz Commercial Services Notice Comments at i, 9; Navajo Nation 700 MHz Commercial Services Notice
Comments at 1 (supporting EA licensing).
86
See NextWave 700 MHz Commercial Services Notice Reply Comments at 9-12; see also Howard/Javed 700 MHz
Commercial Services Notice Comments at i, 9 (supporting the provision of easements allowing unlicensed use of
700 MHz spectrum). The issues raised by these commenters concerning unlicensed use of the 700 MHz Band are
addressed in this Second Report and Order.
87
See Access Spectrum/Pegasus 700 MHz Commercial Services Notice Comments at 23-24.
88
See Cingular 700 MHz Commercial Services Notice Comments at 5-9 (commenting that absent need for spectrum
in rural areas and economic basis for CMAs, the band plan should not be modified); Cingular 700 MHz Commercial
Services Notice Reply Comments at 3-9; Verizon Wireless 700 MHz Commercial Services Notice Comments at 3-5;
Verizon Wireless 700 MHz Commercial Services Notice Reply Comments at 3-6; Motorola 700 MHz Commercial
Services Notice Comments at i, 3-9; Motorola 700 MHz Commercial Services Notice Reply Comments at 2-3;
AT&T 700 MHz Commercial Services Notice Comments at 3-11; AT&T 700 MHz Commercial Services Notice
Reply Comments at 3-12; see also CTIA 700 MHz Commercial Services Notice Comments at 1-2 (commenting that
in large part, the existing licensing and service rules should be left unchanged); Qualcomm 700 MHz Commercial
Services Notice Comments at 17 (commenting that economies of scale argues in favor of big geographic areas).
Cingular and AT&T argue that if any change is to be made to the size of service areas, then such changes should be
limited. Cingular 700 MHz Commercial Services Notice Reply Comments at 9 (arguing that any changes to band
plan should be limited to the Upper 700 MHz Band); AT&T 700 MHz Commercial Services Notice Reply
Comments at 15 (noting that if any change is made, it should be to one block only, and that the Lower 700 MHz
Band should not be changed).
89
CTIA 700 MHz Commercial Services Notice Comments at 5-6; see also Verizon Wireless 700 MHz Commercial
Services Notice Reply Comments in at 4-5 (commenting that the 700 MHz Band spectrum will not be auctioned “in
a vacuum”).
90
DIRECTV/EchoStar 700 MHz Commercial Services Notice Comments at 3.
91
See Motorola 700 MHz Commercial Services Notice Comments at 5-6 (commenting that broadband generally
more efficient when deployed in wider bandwidth); Qualcomm 700 MHz Commercial Services Notice Comments at
(continued….)
24
Federal Communications Commission
FCC 07-132
Plan” (BOP),92 proposed that 15 megahertz of the Upper 700 MHz Band, drawn from the C and
D Blocks, be reconfigured into three blocks of 5.5-megahertz, 5.5-megahertz, and 4-megahertz
paired spectrum, which would be situated immediately below a newly created 1.5-megahertz
Guard Band A Block.93 Navini supported the assignment of additional spectrum in the 700 MHz
Band for Mobile WiMAX deployment that is conducive to time-division-duplex (TDD) systems,
recommending that at least 15 megahertz, and preferably 30 megahertz, be assigned per service
provider, and supported making available additional bands of 16.5 megahertz as described by
Access Spectrum/Pegasus.94 Corr proposed revising the Upper 700 MHz Band C and D Blocks
to provide for two 15-megahertz blocks (each comprised of two paired 7.5-megaherz blocks).95
Many other commenters, including representatives of small and rural interests, supported
dividing the 20-megahertz Upper 700 MHz Band D Block,96 and some commenters argued that
by dividing the block more licenses with smaller geographic service areas could be made
available.97 NextWave suggested reconfiguring the Upper 700 MHz Band C and D Blocks into
two unpaired 10-megahertz blocks and one 10-megahertz block (paired 5-megahertz blocks), and
reconfiguring the Lower 700 MHz Band to include two 12-megahertz and one 6-megahertz
(Continued from previous page)
18 (commenting that 20-megahertz block helps to facilitate delivery of technically advanced services and dividing
the block may decrease overall spectral efficiency); Verizon Wireless 700 MHz Commercial Services Notice Reply
Comments at 6-7 (commenting that only this block could arguably be considered as large); CTIA 700 MHz
Commercial Services Notice Comments at 6-7 (commenting that licenses of 20 megahertz or more provide
important opportunities for broadband services, and it’s the only large block in the band); DIRECTV/EchoStar 700
MHz Commercial Services Notice Reply Comments at 7-8 (commenting that 20 megahertz may not be enough
spectrum to permit competition with incumbents given the growth of applications); see also Polar 700 MHz
Commercial Services Notice Comments at 1 (arguing that CMA licenses should be made available over 20
megahertz to support future wireless broadband applications).
92
The Commission sought comment on the BOP in its notice respecting issues affecting the 700 MHz Guard Bands.
See 700 MHz Guard Band Service Notice, 21 FCC Rcd 10413 (2006).
93
See Access Spectrum/Pegasus 700 MHz Commercial Services Notice Comments at 3-4. In reply comments,
Cyren Call argues that proposals relating to the public safety spectrum in the Upper 700 MHz Band such as those
suggested by Access Spectrum/Pegasus should be considered in a consolidated manner. Cyren Call 700 MHz
Commercial Services Notice Reply Comments at 3. We note that a petition for rulemaking submitted by Cyren Call
seeking, inter alia, the reallocation of commercial spectrum in the Upper 700 MHz Band has been dismissed;
however, that docket remains open. Reallocation of 30 MHz of 700 MHz Spectrum (747-762/777-792 MHz) from
Commercial Use, RM-11348, Order, 21 FCC Rcd 13123 (Public Safety and Homeland Security Bureau Nov. 3,
2006).
94
Navini 700 MHz Commercial Services Notice Comments at 1.
95
Corr 700 MHz Commercial Services Notice Comments at 3.
96
Commenters that supported the Balanced Consensus Plan suggested that D Block in the Upper 700 MHz Band be
split into equal 10-megahertz blocks. See Balanced Consensus Plan. In addition to the commenters supporting the
Balanced Consensus Plan, Navajo Nation, T-Mobile, and Frontier also supported dividing D Block. See Navajo
Nation 700 MHz Commercial Services Notice Comments at 2; T-Mobile 700 MHz Commercial Services Notice
Reply Comments at 3-4; Frontier 700 MHz Commercial Services Notice Comments at 7. The Consumer Federation
of America, et al. generally supported small spectrum blocks but did not specifically propose dividing D Block. See
Consumer Federation of America, et al. 700 MHz Commercial Services Notice Comments 4-5.
97
See Frontier 700 MHz Commercial Services Notice Comments at 7; MetroPCS 700 MHz Commercial Services
Notice Comments at 13-14.
25
Federal Communications Commission
FCC 07-132
unpaired blocks.98 Howard/Javed suggested the use of a 10-megahertz block (paired 5megahertz blocks) and a 14-megahertz block (paired 7-megahertz blocks) in the Lower 700 MHz
Band’s A and B Blocks, and alternatively proposed that the B Block be an asymmetric 12megahertz block (7-megahertz and 5-megahertz blocks), with the E Block revised to an 8megahertz unpaired license.99
50.
Finally, Tropos recommended that the A and B Blocks of the Lower 700 MHz
Band should be auctioned and awarded to licensees that “would administer a contention based
unlicensed spectrum environment,”100 which it contended would promote broadband deployment
in rural communities.101 Several commenters oppose Tropos’s recommendation.102
51.
700 MHz Report and Order and 700 MHz Band Further Notice. In the 700 MHz
Report and Order, we decided to replace the initial plan for auctioning the remaining licenses on
an EAG basis with a new band plan that provided for a mix of geographic licensing areas
consisting of CMAs, EAs, and REAGs. We found that a revised mix of geographic licensing
areas in the 700 MHz Band would balance the demand for differently sized licenses
demonstrated in the record and enhance access to this spectrum by a variety of potential
licensees,103 noting that this mix of geographic license sizes would be consistent with the
licensing opportunities and the balance of competing interests that we achieved in the recent
auction of AWS licenses.104
52.
In the 700 MHz Further Notice, we sought additional comment with regard to the
specific location of these new CMAs, EAs, and REAGs in the commercial license blocks that
had not yet been auctioned in the 700 MHz Band. We also requested comment as to whether to
alter the alignment of the spectrum blocks in either the Lower 700 MHz Band or Upper 700
MHz Band. Concerning the Lower 700 MHz Band, we proposed to maintain the spectrum
blocks as currently sized and aligned,105 and to license the A Block on an EA basis, the B Block
on a CMA basis, and the unpaired E Block on an REAG basis.106 With respect to the Upper 700
MHz Band, we sought comment on five proposals for reconfiguring the band plan for this
98
NextWave 700 MHz Commercial Services Notice Reply Comments at 2-9 & Attach. I. In offering this alternative
proposal, NextWave modified its original band plan proposal which suggested adopting unpaired spectrum blocks of
6-15 megahertz. See NextWave 700 MHz Commercial Services Notice Comments at 6-10 & Attach. I.
99
See Howard/Javed 700 MHz Commercial Services Notice Comments at 8, 9-23.
100
See Tropos 700 MHz Commercial Services Comments at 10.
101
See Tropos 700 MHz Commercial Services Notice Comments; Tropos 700 MHz Commercial Services Notice
Reply Comments.
102
See CTIA Commercial Services Notice Reply Comments at 10-11; AT&T Commercial Services Notice Reply
Comments at 13; Cingular Commercial Services Notice Reply Comments at 11.
103
700 MHz Report and Order, 22 FCC Rcd at 8082-86 ¶¶ 42-49.
104
Id. at 8083 ¶ 43.
105
See id. at 8130 ¶ 178.
106
700 MHz Further Notice, 22 FCC Rcd at 8130-31 ¶¶ 178-81.
26
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FCC 07-132
spectrum, each presenting a variation on the size and location of the spectrum blocks associated
with the Upper 700 MHz Commercial Services Band and the 700 MHz Guard Bands.107
53.
Regarding these five specific proposals concerning the Upper 700 MHz Band,
two of these proposals (Proposals 1 and 3) would provide for two paired spectrum blocks,
consisting of one large spectrum block (totaling 22 megahertz) and one smaller block (totaling
12 and 11 megahertz, respectively). The other three proposals (Proposals 2, 4, and 5) would
establish three similarly-sized, paired blocks (either 11 or 12 megahertz in size). These five
proposals differ as to the appropriate geographic service areas of these licenses.108
107
·
Proposal 1. Two spectrum blocks in the Upper 700 MHz Band – a large 22megahertz C Block (comprised of two 11-megahertz paired blocks at 747758/777-788 MHz) and a 12-megahertz D Block (comprised of two 6megahertz paired blocks at 758-764/788-794 MHz). Both of these blocks
would be licensed on a REAG basis.
·
Proposal 2. Three spectrum blocks – two 11-megahertz licenses, a C Block
(comprised of two 5.5-megahertz paired blocks at 747-752.5/777-782.5 MHz)
and D Block (comprised of two 5.5-megahertz paired blocks at 752.5758/782.5-788 MHz), and a 12-megahertz E Block (comprised of two 6megahertz paired blocks at 758-764/788-794 MHz). The C Block would be
licensed over either CMAs or EAs, the D Block would be licensed over EAs,
and the E Block would be licensed over REAGs.
·
Proposal 3. Two spectrum blocks – a 22-megahertz C Block (comprised of
two 11-megahertz paired blocks at 746-757/776-787 MHz) and a 10megahertz D Block (comprised of two 5-megahertz paired blocks at 757762/787-792 MHz). (This proposal did not provide any specific proposal with
regard to geographic service areas.)
·
Proposal 4. Three spectrum blocks – two 11-megahertz licenses, a C Block
(comprised of two 5.5-megahertz paired blocks at 746-751.5/776-781.5 MHz)
and a D Block (comprised of two 5.5-megahertz paired blocks at 751.5757/781.5-787 MHz), and a 10-megahertz E Block (comprised of two 5megahertz paired blocks at 757-762/787-792 MHz). The C and D Blocks
would be licensed over REAGs, and the E Block would be licensed over EAs.
Id. at 8132-40 ¶¶ 183-206.
108
We also note here that two proposals (Proposals 1 and 2) assume that we eliminate the Guard Band B Block and
subsume that 4 megahertz of spectrum within the unauctioned 30 megahertz of commercial spectrum of the Upper
700 MHz Band available for auction, while the other three proposals (Proposals 3, 4, and 5) assume that we modify
the 700 MHz Guard Bands and shift their location, as well as the public safety allocation in the band, in a manner
that would result in 2 megahertz of Guard Band spectrum being subsumed in the commercial spectrum available for
auction. See 700 MHz Further Notice, 22 FCC Rcd at 8132-40 ¶¶ 183-206. We discuss elsewhere our decision to
revise the change the spectral locations of the Guard Band A and B Blocks and shift the other Upper 700 MHz
commercial blocks and the public safety allocation one megahertz, while reducing the size of the Guard Band B
Block, which results in 2 megahertz of additional commercial spectrum for auction.
27
Federal Communications Commission
·
FCC 07-132
Proposal 5. Three spectrum blocks – two 11-megahertz licenses, a C Block
(comprised of two 5.5-megahertz paired blocks at 746-751.5/776-781.5 MHz),
and the D Block (comprised of two 5.5-megahertz paired blocks at 751.5757/781.5-787 MHz), and a 10-megahertz E Block (comprised of two 5megahertz paired blocks at 757-762/787-792 MHz). The C Block would be
licensed over REAGs, and the D and E Blocks would be licensed over EAs.
54.
In addition to seeking comment on these five possible variations for the Upper
700 MHz Band, we also sought comment on Frontline’s proposal, which recommended that we
designate the uppermost commercial spectrum block, licensed on a nationwide basis, for a
public/private partnership with a public safety broadband licensee in the Upper 700 MHz
Band.109 We also sought comment on a proposal by PISC to designate at least 30 MHz of
commercial spectrum for use on an "open access" basis.110
55.
In response to the 700 MHz Further Notice, the Commission received extensive
comments on the appropriate band plan for the commercial spectrum in the 700 MHz Band.
These comments generally concern both the mix of geographic service area license sizes
throughout the band, and the size of the spectrum blocks remaining for auction.
56.
With regard to the geographic service areas for the licenses to be auctioned, there
is no consensus. Commenters’ recommendations vary as to the appropriate mix of CMAs, EAs,
or REAGs. Several commenters generally supported adoption of smaller geographic service
areas, recommending licensing one additional CMA block in both the Lower and the Upper 700
MHz Bands.111 McBride proposes that all of the remaining blocks be auctioned over CMAs,
Sprint Nextel and Blooston recommend CMAs for two spectrum blocks in the Upper 700 MHz
Band, and Centennial requests that the Upper 700 MHz Band include at least one CMA license
block.112 One commenter, Frontier, continues to support the use of license areas that are even
smaller than CMAs.113 Some commenters express support for a mix of CMAs and EAs. For
109
We address elsewhere the Upper 700 MHz D Block that will be dedicated to the 700 MHz Public/Private
Partnership.
110
See 700 MHz Further Notice, 22 FCC Rcd at 8168 ¶ 290.
111
See Frontier 700 MHz Further Notice Comments at 2 (commenting that Upper 700 MHz Band should include one
license over CMAs or smaller license areas); RTG 700 MHz Further Notice Comments at 3-6; NTCA 700 MHz
Further Notice Reply Comments at 3-5; Vermont Department of Public Service, et al. 700 MHz Further Notice
Reply Comments at 5-6; Union 700 MHz Further Notice Reply Comments at 2; USA Broadband 700 MHz Further
Notice Reply Comments at 2; WISPA 700 MHz Further Notice Comments at 3-5; Alltel 700 MHz Further Notice
Comments at 2, 3-4 (supporting multiple license blocks with smaller geographic areas and CMAs in particular in the
Upper and Lower 700 MHz Bands); RCA 700 MHz Further Notice Comments at 2 (supporting adoption of CMA
licenses in Lower 700 MHz Band, and a license smaller than REAGs, preferably CMAs, in the Upper 700 MHz
Band); U.S. Cellular 700 MHz Further Notice Reply Comments at 4-9 (supporting CMA opportunities in Upper 700
MHz Band and in Lower 700 MHz Band); MetroPCS 700 MHz Further Notice Comments at 15 (supporting
Balanced Consensus Plan as modified).
112
See McBride 700 MHz Further Notice Comments at 8-9; Sprint Nextel 700 MHz Further Notice Comments at 5
(suggesting that the existing 20-megahertz block be reconfigured to provide for two 10-megahertz blocks); Blooston
700 MHz Further Notice Reply Comments at 3 (commenting that two 10-megahertz blocks in the Upper 700 MHz
Band should be licensed over CMAs); Centennial 700 MHz Further Notice Comments at 3-6.
113
Frontier 700 MHz Further Notice Comments at 2,8 (supporting one block over CMAs in the Lower 700 MHz
Band and one block over CMAs or “smaller license areas” in the Upper 700 MHz Band).
28
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FCC 07-132
instance, U.S. Cellular recommends that at least four spectrum blocks should be based on CMAs
and EAs.114 SpectrumCo recommends that, while only one additional CMA-based spectrum
block is necessary, the Commission should maximize the number of EA licenses in the band.115
Cellular South supports the Commission’s proposal for the Lower 700 MHz Band which
includes a CMA license, and supports adoption of a band plan that includes an EA in the Upper
700 MHz Band.116 WCA proposes licensing at least one block of EAs in the Lower 700 MHz
and one block in the Upper 700 MHz Band.117 Cyren Call comments that a CMA and EA license
should be made available in the Upper 700 MHz Band if the Frontline proposal is adopted.118
Arguments that commenters supply for adoption of smaller geographic area licenses include that
smaller license sizes improve the opportunity to access spectrum119 or to participate in the
auction,120 encourage rural deployment,121 allow parties to acquire enough spectrum to fit their
intended service areas,122 and permit new entrants to acquire spectrum.123 Some commenters
argue that smaller geographic areas are required because there is a lack of service to rural areas
by national carriers,124 and that large geographic areas favor large companies.125
57.
Many commenters generally support licensing by larger geographic service areas,
i.e., over REAGs. 4G Coalition, which supports licensing a larger block in the Upper 700 MHz
Band over REAGs, states that it is expensive and difficult to cobble together smaller license
areas and that auction exposure risks are present with smaller areas.126 Google, which also
114
U.S. Cellular 700 MHz Further Notice Comments at 2.
115
SpectrumCo 700 MHz Further Notice Comments at iv, 10-11.
116
See Cellular South 700 MHz Further Notice Reply Comments at 6; Cellular South Ex Parte June 26, 2007
(suggesting that a CMA license should be offered in the lower band, and a license smaller than an REAG in the
upper band).
117
WCA 700 MHz Further Notice Comments at 12.
118
Cyren Call 700 MHz Further Notice Comments at 39.
119
See 700 MHz Independents 700 MHz Further Notice Comments at 3; RTG 700 MHz Further Notice Comments
at 3.
120
See Frontier 700 MHz Further Notice Comments at 7; Embarq 700 MHz Further Notice Comments at 5-6; SBA
700 MHz Further Notice Comments at 9 (quoting from SpectrumCo ex parte submission).
121
See Alltel 700 MHz Further Notice Comments at 2, 4; Aloha 700 MHz Further Notice Comments at 2-3; Frontier
700 MHz Further Notice Comments at 7; Embarq 700 MHz Further Notice Comments at 5-6; WISPA 700 MHz
Further Notice Comments at 4; RCA 700 MHz Further Notice Reply Comments at 12; RTG 700 MHz Further
Notice Comments at 6.
122
See Cellular South 700 MHz Further Notice Comments at 8, 10 (increasing likelihood of acquiring licenses for
areas they intend to serve); Frontier 700 MHz Further Notice Comments at 4 (enabling acquisition of licenses for
rural areas alone); RTG 700 MHz Further Notice Comments at 5 (commenting that large companies can acquire
spectrum for needed urban areas without acquiring spectrum for rural areas).
123
See Alltel 700 MHz Further Notice Comments at 3; Cellular South 700 MHz Further Notice Comments at 8-9,
10; Embarq 700 MHz Further Notice Comments at 6.
124
See Cellular South 700 MHz Further Notice Comments at 9; Centennial 700 MHz Further Notice Comments at
6-7.
125
See Centennial 700 MHz Further Notice Comments at 6.
126
4G Coalition 700 MHz Further Notice Comments at 8-9.
29
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supports REAG-based licenses over a larger block in the Upper 700 MHz Band, asserts that large
service areas assist in providing access for new entrants.127 PISC (a coalition of public interest
and consumer groups) contends that the number of REAGs should be maximized.128 In
particular, PISC opposes the adoption of further small geographic area licenses in the Upper 700
MHz Band, arguing that the Commission has already determined to provide over 800 additional
licenses over CMAs and EAs in the Lower 700 MHz Band. PISC also suggests that some larger
carriers that have expressed support for smaller licenses may not be seeking to provide relief to
rural areas, but instead, are attempting to use the regulatory process to block competitors from
developing a national market.129 Verizon Wireless comments that the entire Upper 700 MHz
Band should be licensed over REAGs, and that REAGs are necessary to achieve the goals of
providing a mix of licenses and ensuring that advanced services will be deployed on a timely
basis.130 AT&T’s proposed band plan contains REAGs and an EA in the Upper 700 MHz
Band.131
58.
Some of the commenters on the appropriate mix of geographic area license sizes
also specify which license sizes should be adopted for particular blocks. Many commenters
express support for the Commission’s proposal relating to the Lower 700 MHz Band to license
the A, B, and E Blocks over EAs, CMAs, and REAGs, respectively.132 For example, among the
commenters supporting EAs in the Lower 700 MHz Band’s A Block is RCA, which states that
licensing that block over EAs will allow carriers of various sizes an opportunity to participate in
the auction.133 Several commenters specify support for licensing the Lower 700 MHz Band’s B
Block over CMAs.134 Commenters noted the potential for aggregation opportunities by having a
CMA license located adjacent to the C Block spectrum which already has been licensed over
127
See Google 700 MHz Further Notice Comments at 2, 7. The 4G Coalition and Google support licensing Proposal
3’s smaller 10-megahertz block (comprised of paired 5-megahertz blocks) over MEAs. See 4G Coalition 700 MHz
Further Notice Comments at 8-9; Google 700 MHz Further Notice Comments at 7.
128
See PISC 700 MHz Further Notice Comments at 35-36.
129
Id. at 36.
130
See Verizon Wireless 700 MHz Further Notice Comments at 10-11, 12-14. Verizon Wireless also comments that
these REAGs should be paired, and notes that the role which the Commission has stated REAGs have in promoting
advanced services. Id. at 12.
131
See AT&T 700 MHz Further Notice Comments at 4-7.
132
See, e.g., AT&T 700 MHz Further Notice Comments at 3-4; Cellular South 700 MHz Further Notice Comments
at 9-11; Leap 700 MHz Further Notice Comments at 3; MetroPCS 700 MHz Further Notice Comments at 13; RCA
700 MHz Further Notice Comments at 11-12; Union 700 MHz Further Notice Comments at 3-5; see also U.S.
Cellular 700 MHz Further Notice Reply Comments at 5 (supporting lower band proposal based on the proposal’s
widespread support).
133
RCA 700 MHz Further Notice Comments at 12; see also Cellular South 700 MHz Further Notice Comments at
10.
134
See 700 MHz Independents 700 MHz Further Notice Comments at 3-4; Aloha 700 MHz Further Notice
Comments at 2-3; Blooston 700 MHz Further Notice Comments at 3; Cellular South 700 MHz Further Notice
Comments at 10; Dobson 700 MHz Further Notice Comments at 3; NTCA 700 MHz Further Notice Comments at 34; RTG 700 MHz Further Notice Comments at 3; RCA 700 MHz Further Notice Comments at 11-12; WISPA 700
MHz Further Notice Comments at 4-5.
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CMAs,135 with the 700 MHz Independents and RTG commenting that the aggregation potential
with these adjacent CMA spectrum blocks is important because of certain technical issues arising
with respect to operations in C Block.136 As for the Lower 700 MHz Band E Block, Cellular
South and RCA agree with our proposal to license the block over REAGs.137 On the other hand,
Aloha requests that this E Block be licensed over EAs, claiming that the proposed geographic
service area is too large and too expensive for its projected limited use.138 Cyren Call suggests
that, if Frontline’s proposal is adopted for the Upper 700 MHz Band, two spectrum blocks in the
Upper 700 MHz Band should be licensed over CMAs and EAs.139
59.
In response to our inquiry in the 700 MHz Further Notice whether to maintain a
larger spectrum block in the 700 MHz Band, the record reflects disparate views. Several
commenters support the adoption of a larger spectrum block and argue against greater use of
smaller spectrum blocks. For example, PISC states that “the push by SpectrumCo and large
wireless carriers for smaller licenses appears designed to bolster their ability to block potential
competitors from developing powerful national networks that would challenge their existing
broadband and wireless offerings.”140 4G Coalition asserts that the Commission is already
providing smaller blocks in the overall band plan for the Lower and Upper 700 MHz Bands, and
recommends inclusion of at least one large block in the Upper 700 MHz Band, which it claims
would offer benefits for advanced broadband service.141 Google comments that a large spectrum
block would provide greater flexibility to technologies with adjustable signal bands, such as
WiMax, and additional capacity for technologies with fixed waveforms, like EvDO.142 Verizon
Wireless contends that wireless broadband deployment and emerging 4G technologies require a
large spectrum block to achieve the fastest data rates.143 Ericsson proposes that the Commission
maintain a 20-megahertz block.144
135
See 700 MHz Independents 700 MHz Further Notice Comments at 4-5; Aloha 700 MHz Further Notice
Comments at 2-3; Cellular South 700 MHz Further Notice Comments at 10; Union Telephone 700 MHz Further
Notice Comments at 4.
136
See 700 MHz Independents 700 MHz Further Notice Comments at 5; RTG 700 MHz Further Notice Comments
at 4-5.
137
See Cellular South 700 MHz Further Notice Comments at 10-11; RCA 700 MHz Further Notice Comments at
11-12.
138
See Aloha 700 MHz Further Notice Comments at 3; Aloha 700 MHz Further Notice Reply Comments at 2.
139
See Cyren Call 700 MHz Further Notice Comments at 39.
140
See PISC 700 MHz Further Notice Comments at 36; see also “Ex Parte Reply Comments of the Ad Hoc Public
Interest Spectrum Coalition,” WT Docket No. 06-150 (filed July 6, 2007)(arguing that increasing the number of
licenses increases the ability of incumbents to block new entrants).
141
See 4G Coalition 700 MHz Further Notice Comments at 2-4, 6 (urging the adoption of a 22-megahertz block);
CCIA 700 MHz Further Notice Comments at 3.
142
See Google 700 MHz Further Notice Comments at 7 (discussing 22-megahertz block).
143
See Verizon Wireless 700 MHz Further Notice Comments at 11 (commenting on the need for at least a 20megahertz block to meet such data rates), 16 (commenting that 22-megahertz of paired spectrum supports broadband
deployment).
144
See Ericsson 700 MHz Further Notice Comments at 24. Ericsson also comments that a 22-megahertz block is
unnecessarily large. Id. at 2.
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60.
Other commenters, however, support a band plan that would eliminate the large
spectrum block from the existing band plan and provide for two smaller spectrum blocks.145 For
example, Cellular South claims that smaller blocks will enable new entrants to obtain licenses
and that a single large block restricts competition for the spectrum.146 RCA comments that while
large entities may have an interest in a larger block, offering it on such a basis would be
“conspicuously unfair”147 and MetroPCS claims that a 22-megahertz REAG block would be a
“set-aside for larger auction participants.”148 SpectrumCo claims that dividing a larger block
would maximize flexibility and “would provide bidders with opportunities to customize their
service areas, expand into new markets, and/or strategically supplement spectrum holdings in
existing geographic areas.”149
61.
Google recommends that the Commission designate the 6-megahertz unpaired
spectrum block in the Lower 700 MHz Band E Block as suitable, primarily or exclusively for the
deployment of broadband communications platforms. Specifically, Google recommends that this
block should be utilized for interactive, two-way broadband services, connected to the public
internet, and used to support innovative software-based applications, services, and devices.
Google contends that adopting such a service requirement will help maximize the commercial
utility of this spectrum band. In particular, Google alleges that the unpaired E Block in the
Lower 700 MHz Band “appears to lack any significant immediate commercial value, due to the
relatively limited bandwidth available and its unpaired nature.”150 Google comments that the
Commission has supported ubiquitous broadband deployment as one of the nation’s top
priorities.151 On the other hand, a number of commenters opposed Google’s proposal regarding
E Block in the Lower 700 MHz Band. For example: AT&T alleges that Google’s proposal is
counter to the principles of technical and service neutrality and licensee flexibility; CTIA claims
that Google’s proposal would adversely affect competition in mobile services generally;
Qualcomm comments that Google’s proposed standard is too vague, is contrary to the flexible
allocation adopted for the Lower 700 MHz Band, and that there is commercial value for this
spectrum; RTG opposes limiting the use of any spectrum to the services proposed by Google;
145
See 700 MHz Independents 700 MHz Further Notice Comments at 6-7; Aloha 700 MHz Further Notice
Comments at 3; Blooston 700 MHz Further Notice Comments at 4; Cellular South 700 MHz Further Notice
Comments at 11-19; Centennial 700 MHz Further Notice Comments at 3; Leap 700 MHz Further Notice Comments
at 3-4; Leap 700 MHz Further Notice Reply Comments at 2-3; MetroPCS 700 MHz Further Notice Comments at
24-26; MetroPCS 700 MHz Further Notice Reply Comments at 4-9; SpectrumCo 700 MHz Further Notice
Comments at 9-10; Sprint Nextel 700 MHz Further Notice Comments at 2-5; T-Mobile 700 MHz Further Notice
Reply Comments at 10-11; Union 700 MHz Further Notice Comments at 5; U.S. Cellular 700 MHz Further Notice
Comments at 8; AT&T 700 MHz Further Notice Comments at 4-5.
146
See Cellular South 700 MHz Further Notice Comments at 11-12.
147
See RCA 700 MHz Further Notice Comments at 13.
148
See MetroPCS 700 MHz Further Notice Comments at 25-26.
149
See SpectrumCo 700 MHz Further Notice Comments at 2, 15.
150
Google Ex Parte Letter at 4-5. WTB sought comment on Google’s proposal in its ex parte letter, including its
position regarding the E Block of the Lower 700 MHz Band. See Google 700 MHz Service Rules PN at 2. Elements
of Google’s proposal, other than those regarding its proposal relating to E Block of the Lower 700 MHz Band, are
addressed elsewhere.
151
See Google Google Ex Parte Reply Comments at 7-9.
32
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FCC 07-132
and Verizon Wireless comments that the proposal should be rejected in light of the
Commission’s longstanding policy for maximum licensee flexibility.152
(ii)
Discussion
62.
In the 700 MHz Report and Order, we determined that a balanced mix of
geographic service area licenses – CMAs, EAs, and REAGs – would be appropriate for the
commercial 700 MHz Band licenses that will be auctioned.153 We reaffirm that determination for
all of this commercial spectrum except for that associated with the 10-megahertz commercial
license (comprised of paired 5-megahertz blocks), which will be auctioned on a nationwide basis
for use as part of the 700 MHz Public/Private Partnership with the Public Safety Broadband
Licensee. We further determine that a mix of spectrum block sizes, including one large 22megahertz block (comprised of paired 11-megahertz blocks), is appropriate for the 700 MHz
Band licenses that remain to be auctioned.
63.
In evaluating the appropriate balance of license areas and block sizes in this
revised band plan, we consider the 700 MHz Band as a whole, including both the commercial
spectrum that has not yet been auctioned and the previously auctioned spectrum. Recent
statutory and regulatory changes have served to harmonize these spectrum bands and warrant our
consideration of the 700 MHz Band spectrum as a whole. The DTV Act provides a uniform
transition date for the entire spectrum in both the Lower and Upper 700 MHz Bands, which will
make all of the spectrum nationwide available simultaneously. In addition, in the 700 MHz
Report and Order, we revised the power limit requirements for the spectrum in the Lower 700
MHz Band that has not yet been auctioned to make them substantially similar to those applicable
to the Upper 700 MHz Band. Finally, the Commission’s secondary markets rules will allow
auction winners to aggregate previously auctioned spectrum with spectrum they win in the
upcoming auction.
64.
In determining the specific mix of geographic licensing areas and block sizes for
the spectrum to be auctioned, we seek to achieve the kind of reasonable balance that we achieved
when adopting a mix of licenses and block sizes in the band plan for the AWS-1 spectrum. The
700 MHz Band spectrum, like the AWS-1 spectrum, is particularly well-suited for wireless
broadband services. Given that these bands are likely to be used for similar services, our goals
here are similar to those for the AWS-1 Band. In particular, our goals for the 700 MHz Band are
to promote dissemination of licenses among a wide variety of applicants, accommodate the
competing need for both large and small licensing areas, meet the various needs expressed by
potential entrants seeking access to spectrum and incumbents seeking additional spectrum, and
provide for large spectrum blocks that can facilitate broadband deployment in the band.
65.
To achieve these goals, we will license three commercial blocks of paired
spectrum – one 12-megahertz block (comprised of paired 6-megahertz blocks) licensed on a
152
See AT&T Google Ex Parte Comments at 9-10; CTIA Google Ex Parte Comments at 3; Qualcomm Google Ex
Parte Comments at iii, 2-6; RTG Google Ex Parte Comments at 3; Verizon Wireless Google Ex Parte Comments at
2, 7; see also MetroPCS Google Ex Parte Comments at 3-4 & n.9 (commenting on inconsistencies in Google’s
position); Qualcomm Google Ex Parte Reply Comments at 2-4 (arguing that there is no legitimate reason to prohibit
certain uses of the E Block and allow only other particular uses).
153
See 700 MHz Report and Order, 22 FCC Rcd at 8082-86 ¶¶ 42-45.
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FCC 07-132
CMA basis, one 12-megahertz block (comprised of paired 6-megahertz blocks) on an EA basis,
and one 22-megahertz block (comprised of paired 11-megahertz blocks) on an REAG basis – as
well as one 6-megahertz block of unpaired spectrum on an EA basis. The following figure
shows this new band plan:
FIGURE 8: REVISED 700 MHZ BAND PLAN FOR COMMERCIAL SERVICES
757
A
B
C
D
E
A
B
C
CH.
52
CH.
53
CH.
54
CH.
55
CH.
56
CH.
57
CH.
58
CH.
59
698
704
710
716
722
728
734
740
C
CH.
60
746
763
A
D
CH.
61
752
CH.
63
764
LOWER 700 MHZ BAND
(CHANNELS 52-59)
Block
A
B
C
D
E
C
D
A
B
Frequencies
698-704, 728-734
704-710, 734-740
710-716, 740-746
716-722
722-728
746-757, 776-787
758-763, 788-793
757-758, 787-788
775-776, 805-806
787
Public Safety B
CH.
62
758
775
CH.
64
770
C
CH.
65
776
793
A
D
CH.
66
782
Public Safety B
CH.
67
788
805
CH.
68
794
CH.
69
800
UPPER 700 MHZ BAND
(CHANNELS 60-69)
Bandwidth
Pairing
Area Type
12 MHz
12 MHz
12 MHz
6 MHz
6 MHz
22 MHz
10 MHz
2 MHz
2 MHz
2 x 6 MHz
2 x 6 MHz
2 x 6 MHz
unpaired
unpaired
2 x 11 MHz
2 x 5 MHz
2 x 1 MHz
2 x 1 MHz
EA
CMA
CMA
EAG
EA
REAG
Nationwide
MEA
MEA
Licenses
176
734
734*
6*
176
12
1**
52***
52***
*Blocks have been auctioned.
**Block is associated with the 700 MHz Public/Private Partnership.
***Guard Bands blocks have been auctioned, but are being relocated.
66.
With respect to the mix of geographic service area licenses under our revised
band plan for the 70 megahertz of commercial spectrum in the 700 MHz Band that is neither
Guard Band spectrum nor spectrum designated for the Public/Private Partnership, a total of 24
megahertz will be provided on a CMA basis (including 12 megahertz already auctioned), 18
megahertz on an EA basis, and 28 megahertz on an REAG/EAG basis (including 6 megahertz
already auctioned on an EAG basis, which are large licenses similar to REAGs).
67.
This mix achieves a balance among different geographic area sizes that is similar
to that provided in the AWS-1 band plan. The following figure compares the amount of
spectrum for CMAs, EAs, and EAGs/REAGs in the AWS-1 Band to that for the revised 700
MHz Band, excluding the Guard Band spectrum and the spectrum designated for use as part of
the 700 MHz Public/Private Partnership.
34
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Federal Communications Commission
FCC 07-132
FIGURE 9: COMPARISON OF AWS AND 700 MHZ SPECTRUM
Unauctioned and
Auctioned 700 MHz
Band
AWS
Spectrum
Percent
(megahertz)
Spectrum
Percent
(megahertz)
Unauctioned 700 MHz
Band
Spectrum
Percent
(megahertz)
Analysis of Paired Spectrum Only
CMA
20
22.2 %
24
41.4 %
12
26.1 %
EA
30
33.3 %
12
20.7 %
12
26.1 %
REAG/EAG
40
44.4 %
22
37.9 %
22
47.8 %
Total
90
58
46
Analysis of Paired and Unpaired Spectrum
CMA
20
22.2 %
24
34.3 %
12
23.1 %
EA
30
33.3 %
18
25.7 %
18
34.6 %
REAG/EAG
40
44.4 %
28
40.0 %
22
42.3 %
Total
90
70
52
Analysis does not include 10 megahertz for the Upper 700 MHz D Block License and 4 megahertz for Guard Bands.
68.
As with AWS-1, the majority of the spectrum in the 700 MHz Band will be
licensed by CMAs or EAs. Specifically, in the AWS-1 Band, 55.5 percent of the entire spectrum
was licensed by CMAs or EAs (22.2 percent and 33.3 percent, respectively), while for the 700
MHz Band, 60 percent will be licensed by CMAs or EAs (34.3 and 25.7 percent). In addition, a
substantial portion of the 700 MHz Band will be licensed by large service areas (REAGs/EAGs).
Whereas 44.4 percent of the AWS-1 Band was licensed by REAGs, 40 percent of the 700 MHz
Band will be licensed by either REAGs or EAGs.
69.
Regarding the size of available spectrum blocks, we provide for one large, 22megahertz spectrum block (comprised of paired 11-megahertz blocks) in the 700 MHz Band to
promote more innovative and efficient broadband deployment in this band. As the Commission
found in the AWS-1 proceeding, 20-megahertz (or larger) spectrum blocks enable a broader
range of broadband services (including Internet access at faster speeds), accommodate future
higher data rates, and provide operators with additional capacity and, importantly, flexibility.154
Based on that finding, in the AWS-1 band plan, three of the five spectrum blocks (66% of the
154
AWS-1 Order on Reconsideration, 20 FCC Rcd at 14066-67 ¶ 15 (larger 20-megahertz blocks should enable a
broader range of broadband services, and accommodate future higher data rates); see also Service Rules for
Advanced Wireless Services in the 1.7 and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC Rcd
25162, 25178 ¶ 44 (2003) (AWS-1 Report and Order).
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total available spectrum) were made available in large 20-megahertz blocks.155 Although we are
departing from the AWS-1 band plan by licensing most spectrum blocks in the 700 MHz Band in
smaller sizes,156 we conclude that licensing one of the 700 MHz Band spectrum blocks as a 22megahertz spectrum block enhances broadband deployment and stimulates new entry.
70.
We discuss in more detail below the revised band plan, including our decisions
regarding the specific placement of the CMA, EA, and REAG licenses and the size of the
spectrum blocks. We revise the size and location of the spectrum blocks in the Upper 700 MHz
Band, consistent with our decisions to change the spectral location of the Guard Bands and make
an additional 2 megahertz of commercial spectrum available for auction based on our reducing
the size of the Guard Band B Block, and designate a 10-megahertz spectrum block (comprised of
two 5-megahertz paired blocks) adjacent to the Public Safety spectrum as part of the 700 MHz
Public/Private Partnership.
71.
CMAs in a 12-Megahertz Spectrum Block (Comprised of Paired 6-Megahertz
Blocks) in the Lower 700 MHz Band B Block. We will license one additional spectrum block in
the 700 MHz Band on a CMA basis, to be located in the B Block of the Lower 700 MHz Band
immediately adjacent to the existing CMA-based licenses. As reflected in the record, there is
demand by small and rural providers for smaller areas such as CMAs.157 Providing for an
additional 700 MHz Band spectrum block licensed on a CMA basis may allow small and rural
providers to obtain license areas that meet their needs while avoiding the transaction costs
associated with obtaining access to spectrum in the secondary market, costs that are incurred
when these small providers must arrange the terms by which another licensee grants access to its
155
AWS-1 Order on Reconsideration, 20 FCC Rcd at 14066-67¶ 15, 14068-69 ¶ 19-20. In the AWS-1 band plan,
three of the six license blocks, involving two-thirds of the band (totaling 60 megahertz) were licensed by large, 20megahertz blocks. Id. at 14069 ¶ 20.
156
We depart from the AWS-1 band plan by licensing most of the 700 MHz Band over smaller blocks as part of our
effort to balance several competing goals in the band plan. We note in particular our decision to assign the Upper
700 MHz Band’s D Block over 10 megahertz (comprised of paired 5 megahertz blocks) as part of a unique
Public/Private Partnership. In addition, we facilitate access to spectrum by smaller service providers by maintaining
the size of all the spectrum blocks in the Lower 700 MHz Band. This approach to the Lower 700 MHz Band is
consistent with our proposal in the 700 MHz Further Notice, 22 FCC Rcd at 8130 ¶ 178 which was supported by
several parties in the record, see TCA 700 MHz Further Notice Reply Comments at 2-4; Leap 700 MHz Further
Notice Comments at 3; Cellular South 700 MHz Further Notice Reply Comments at 6.
157
See 700 MHz Independents 700 MHz Further Notice Comments at 2; Blooston 700 MHz Further Notice
Comments at 2-4; Centennial 700 MHz Further Notice Comments at 3, 5; C&W 700 MHz Commercial Services
Notice Comments at 3; Core 700 MHz Commercial Services Notice Reply Comments at 4; Frontier 700 MHz
Further Notice Comments at 2-4, 6; Embarq 700 MHz Further Notice Comments at 8; NTCA 700 MHz Further
Notice Comments at 3-5; RCA 700 MHz Further Notice Comments at 2; RTG 700 MHz Further Notice Reply
Comments at 4-7; WISPA 700 MHz Further Notice Comments at 5; Union 700 MHz Further Notice Reply
Comments at 7; USA Broadband 700 MHz Further Notice Reply Comments at 2; see also Vermont et al. 700 MHz
Further Notice Reply Comments at 5-6. We note that McBride asks that we license all of the spectrum over CMAs,
but we already have decided in the 700 MHz Report and Order to license the spectrum using a mix of geographic
areas. 700 MHz Report and Order, 22 FCC Rcd at 8082 ¶ 42. We also note that Frontier requests that we consider
licensing spectrum over a geographic area smaller than CMAs, but we have already declined to adopt service areas
smaller than CMAs. Id. at 8085 ¶ 46.
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spectrum by means of partitioning, disaggregation, or spectrum leasing.158 Accordingly, we find
that additional small area licenses based on CMAs should be available in the 700 MHz Band to
allow smaller and more rural bidders to match their particular needs to the licenses available at
auction and avoid potential transaction costs.159 This approach is consistent with the
Commission’s objectives to promote economic opportunity and competition, as well as the
dissemination of licenses to a wide variety of applicants, including small and rural providers.160
72.
We find that the 12-megahertz B Block (comprised of paired 6-megahertz blocks)
in the Lower 700 MHz Band is the appropriate spectrum band for the CMA licenses. As
discussed above, several commenters specifically recommend that the B Block be assigned using
CMAs.161 By providing for CMAs in the Lower 700 MHz Band B Block, licensees will be
afforded the opportunity to combine B Block licenses with licenses in the adjacent C Block,
which already have been licensed over CMAs.162 The Commission has favored placing spectrum
158
See Union 700 MHz Commercial Services Notice Comments at 3 (stating that the “process of aggregating,
disaggregating, and partitioning add significant costs and complexity, and can delay initiation of service, especially
for small rural carriers”); U.S. Cellular 700 MHz Commercial Services Notice Comments at 9; see also
Howard/Javed Comments at 12 ; 700 MHz Independents 700 MHz Further Notice Comments at 2 (commenting that
due to factors including transaction costs, large companies generally have been uninterested and unwilling to
partition or lease the rural portions of their license areas); Corr 700 MHz Commercial Services Notice Comments at
2 (partitioning and disaggregation has not worked to break up larger pieces of spectrum); Consumer Federation of
America, et al. 700 MHz Commercial Services Notice Comments at 5 (prospective new entrants often are at mercy
in the secondary market of license holders); Sprint Nextel 700 MHz Further Notice Comments at 6 (stating that
bidders interested in smaller geographic license areas would have to convince larger area license winner to partition,
and then incur the “often quite substantial transaction costs”).
159
See 700 MHz Independents 700 MHz Further Notice Comments at 5; U.S. Cellular 700 MHz Commercial
Services Notice Reply Comments at 4; Blooston 700 MHz Commercial Services Notice Comments at 2; RTG 700
MHz Commercial Services Notice Comments at 5; Howard/Javed 700 MHz Commercial Services Notice Comments
at 10. In the AWS-1 proceeding, the Commission stated that “RSAs and MSAs allow entities to mix and match
rural and urban areas according to their business plans and that, by being smaller, these types of geographic service
areas provide entry opportunities for smaller carriers, new entrants, and rural telephone companies.” AWS-1 Order
on Reconsideration, 20 FCC Rcd at 14066 ¶ 14.
160
See Lower 700 MHz Report and Order, 17 FCC Rcd at 1061 ¶ 95 (quoting 47 U.S.C. § 309(j)(3)(B)). The
Commission also is to “prescribe area designations and bandwidth assignments that promote … economic
opportunity for a wide variety of applicants, including small businesses, rural telephone companies, and businesses
owned by members of minority groups and women.” 47 U.S.C. 309(j)(4)(C).
161
See, e.g., 700 MHz Independents 700 MHz Further Notice Comments at 2; Aloha 700 MHz Further Notice
Comments at 3-4; Blooston 700 MHz Further Notice Comments at 2-3; Cellular South 700 MHz Further Notice
Comments at 10; Dobson 700 MHz Further Notice Comments at 3; NTCA 700 MHz Further Notice Comments at 34; RTG 700 MHz Further Notice Comments at 3; RCA 700 MHz Further Notice Comments at 11; WISPA 700 MHz
Further Notice Comments at 4; MilkyWay 700 MHz Commercial Services Notice Comments at 1; ; MetroPCS 700
MHz Further Notice Comments at 15; Leap 700 MHz Further Notice Comments at 3; Corr 700 MHz Commercial
Services Notice Reply Comments at 4; see also Comments of Rural Telecommunications Group, Inc. in Support of
Modification of License Area Sizes for 700 MHz Spectrum, Reallocation and Service Rules for the 698-746 MHz
Spectrum Band (Television Channels 52-59), GN Docket No. 01-74, Service Rules for the 746-764 and 776-794
MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 99-168, Rural
Telecommunications Group, Inc. (filed Sept. 27, 2005) (requesting that MSA/RSA licenses be provided for Lower
Band Block B and Upper Band Block C, totaling 22 megahertz of spectrum).
162
See Corr 700 MHz Commercial Services Reply Comments at 4; RTG 700 MHz Further Notice Comments at 4;
700 MHz Independents 700 MHz Further Notice Comments at 4-5; Cellular South 700 MHz Further Notice
(continued….)
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blocks with the same type of geographic area licenses adjacent to one another because this
approach enables licensees to more easily aggregate the adjacent channel licenses, whether at
auction or in the secondary market.163 While we are not creating a larger spectrum block for
CMAs (e.g., a 20-megahertz block), as requested by some parties,164 we do not find that this step
is necessary because converting the B Block to CMA licensing creates opportunities for small or
rural service providers to create a 24-megahertz CMA block in any given geographic area by
aggregating spectrum in the revised B Block and the existing C Block. As a result, small and
rural bidders may acquire rights to a large amount of contiguous spectrum over small geographic
service area, which provides the potential for more flexibility in broadband services to be offered
and technologies to be deployed. These opportunities are particularly important because the
boundaries of CMA-based licenses do not match the boundaries of licenses based on EAs,
EAGs, or REAGs, and therefore may be most usefully aggregated with other CMA licenses.
73.
For these reasons, we do not adopt EAs for the B Block.165 Providing for an
additional CMA spectrum block in the Lower Band B Block comports with the record and will
help us achieve a balanced mix of geographic service area sizes in this band that is similar to the
Commission’s approach to the AWS-1 spectrum. As part of this balance, and as discussed
below, we also establish two EA license blocks in the 700 MHz Band in order to address
concerns raised by those parties requesting EA licenses.
74.
REAGs in a 22-Megahertz Spectrum Block (Comprised of Paired 11-Megahertz
Blocks) in the Upper 700 MHz Band C Block. In addition to making licenses available by a
variety of geographic areas sizes, including CMAs, we also find that we need to make available
at least one large spectrum block. Having determined that we will provide for a 12-megahertz
CMA block in the Lower 700 MHz B Block and a 10-megahertz spectrum block adjacent to the
Public Safety spectrum, we conclude that a 22-megahertz block of paired spectrum should be
located in the C Block in the Upper 700 MHz Band and licensed on a REAG basis. This
approach is consistent with our goal of promoting broadband services in this band, and will
provide important benefits to potential users of this spectrum that may need large spectrum
blocks as well as large geographic areas. Because we provide for package bidding for licenses in
(Continued from previous page)
Comments at 10; Union 700 MHz Further Notice Comments at 4; USA Broadband 700 MHz Further Notice
Comments at 2.
163
AWS-1 Order on Reconsideration, 20 FCC Rcd at 14067 ¶ 20. We recognize that our decision may alter the
ability of licensees in Blocks A and B of the Lower 700 MHz Band to aggregate those licenses since they will be
licensed using EAs and CMAs. However, our overall decision respecting the size of geographic service areas and
spectrum blocks provides opportunities for licensees to obtain wider bandwidth, including through the potential
aggregation of Blocks B and C of the Lower 700 MHz Band.
164
See Polar 700 MHz Commercial Services Notice Comments at 1 (arguing that a 20 megahertz block should be
auctioned over CMAs); see also NTCA 700 MHz Commercial Services Notice Comments at 2, 6-7 (prior to
supporting Balanced Consensus Plan, arguing that a 20 megahertz block should be auctioned over CMAs); Dobson
700 MHz Commercial Services Notice Comments at 4-5 (prior to supporting Balanced Consensus Plan, arguing that
two CMA blocks should be auctioned, one comprised of 20 megahertz and one comprised of 10 megahertz).
165
See Navajo Nation 700 MHz Commercial Services Notice Comments at 1.
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this spectrum block, as discussed below, this large REAG block will be particularly important for
potential new entrants and other bidders that seek to provide a nationwide service.166
75.
With regard to the size of spectrum blocks, this C Block will be the only spectrum
block larger than 12 megahertz in the 700 MHz Band.167 The inclusion of this large block results
in a greater mix of licenses in the 700 MHz Band and gives prospective licensees an additional
choice in acquiring the amount of spectrum consistent with the technologies and spectrum
architecture they may plan to deploy. A large spectrum block makes available licenses of varying
bandwidth and provides for the 700 MHz Band the sort of reasonable balance that we achieved
for AWS-1 spectrum.168 As the Commission previously determined for AWS-1 spectrum, which
is similarly useful for providing wireless broadband service,169 larger spectrum blocks offer
important benefits, including providing sufficient spectrum to support the deployment of new
and emerging competitors170 and the opportunity to achieve high data transmission rates for large
numbers of customers.171 Large blocks also offer benefits with respect to economies of scale,
providing an opportunity for licensees to develop new technologies and services, and additional
flexibility.172
76.
Licensing a spectrum block of this size in the 700 MHz Band could also enable
the development of technologies that will produce bit rates far beyond those available with
166
As we discuss elsewhere in this order, this 22-megahertz block will be revised to provide for two paired blocks of
spectrum in the event certain provisions relating to the aggregate reserve price for that block are not met.
167
For the AWS-1 spectrum, three of the six licenses were of wider bandwidth, i.e., 20 megahertz (comprised of two
10-megahertz paired blocks). See AWS-1 Order on Reconsideration, 20 FCC Rcd at 14069 ¶ 20.
168
However, as we discuss elsewhere, with respect to sizes of spectrum blocks, we are departing from the AWS-1
band plan by licensing more spectrum blocks in the 700 MHz Band in smaller sizes.
169
See AWS-1 Report and Order, 18 FCC Rcd at 25178 ¶ 44; AWS-1 Order on Reconsideration, 20 FCC Rcd at
14066-67 ¶ 15.
170
See CTIA 700 MHz Commercial Services Notice Comments at 6-7 (addressing a 20-megahertz block); CCIA 700
MHz Further Notice Comments at 3 (commenting that a larger block will improve chances for creating a new
nationwide wireless broadband network).
171
See Qualcomm 700 MHz Commercial Services Comments at 11-12, 18; Motorola 700 MHz Commercial Services
Comments at i, 3, 5-6; Verizon Wireless 700 MHz Further Notice Comments at 11-12 (stating that 4G services will
require large blocks to achieve fastest data rates).
172
See CCIA 700 MHz Further Notice Comments at 3 (stating that a new nationwide wireless broadband network
resulting from use of large block could take advantage of economies of scale); Verizon Wireless 700 MHz Further
Notice Comments at 7-8 (commenting that a larger spectrum block “will help to ensure the near-term deployment of
next generation wireless broadband networks, providing the best opportunity for the United States to lead the world
in 4G wireless development.”); 4G 700 MHz Further Notice Comments at 2-4 (technologies with adjustable signal
bands can benefit from larger blocks, as can technologies with fixed waveforms); Google 700 MHz Further Notice
Comments at 7 (commenting that a larger block will provide greater flexibility for some technologies, and provide
greater capacity for others); Motorola 700 MHz Commercial Services Notice Comments at 5 (commenting that wider
blocks afford licensees the flexibility to deploy advanced broadband services that operate using wider channels);
Qualcomm 700 MHz Commercial Services Notice Comments at 18 (commenting that a larger spectrum block will
facilitate the delivery of the most technically advanced wireless services in this and the next decade); see also
DIRECTV/EchoStar 700 MHz Commercial Services Notice Comments at 12 (commenting that a block of 20megahertz may not be enough for the services they envision; technology now under development would use larger,
contiguous spectrum blocks).
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today’s technologies.173 Although existing 3G technologies, such as CDMA-2000 and Wideband
CDMA, can readily be accommodated on blocks of 2.5-megahertz (paired 1.25-megahertz
blocks) and 10-megahertz (paired 5-megahertz blocks),174 respectively, we anticipate that Fourth
Generation (4G) technologies will be able to take advantage of wider spectrum blocks, such as
the 22-megahertz block we adopt in this Second Report and Order, to produce bit rates that are a
significant increase beyond those currently achievable with today’s technologies.175 By creating
a larger spectrum block in the 700 MHz Band, we will enable the provision of many services,
including VoIP, broadband internet access, and streaming audio and video programming, to be
offered at higher speeds, to a greater number of subscribers, and with more advanced capabilities
than could be offered on smaller-sized spectrum blocks in the band.
77.
These capabilities are especially important for new entrants that want to compete
directly with wireline broadband alternatives, which are increasingly moving to fiber networks
capable of very high data rates. While many planned 4G technologies may offer narrow channel
bandwidths for migration purposes, a 20-megahertz block (comprised of paired 10-megahertz
blocks) is the minimum size needed to accommodate anticipated higher data rates. Based on the
Third Generation Partnership Project 2 (3GPP2) standards, 1x-EVDO Rev. C, or UMB is
expected to support 40 Mbps data rate on the down link.176 Based on the Third Generation
Partnership Project (3GPP) Long Term Evolution (LTE) technology, down link peak data rates
up to 50 Mbps in a 10-megahertz paired channel are anticipated.177 In addition, the IEEE
802.16m project targets a minimum of 65 Mbps in a 10-megahertz paired channel.178 None of
these standards groups expect 4G technologies data rates to reach these anticipated, or higher
peak data rates with less than a 20-megahertz block (paired 10-megahertz blocks). Thus, a 22megahertz spectrum block, or effectively 20 megahertz (2 x 10 MHz), will enable licensees to
deploy Fourth Generation (4G) wireless technologies designed to compete with high-capacity
wireline offerings.
173
See Verizon Wireless 700 MHz Further Notice Comments at 11-12 (“wireless broadband deployment requires
more contiguous spectrum, and emerging 4G technologies require 20 megahertz of spectrum to achieve the fastest
possible data rates”).
174
Certain commenters argue that paired 5 megahertz blocks provide sufficient capacity for some technologies, see
Sprint Nextel 700 MHz Further Notice Comments at 2, MetroPCS Further Notice Comments at 7-8, or that a 22megahertz block is unnecessary and diverts the use of spectrum from frequency arrangements that could lower the
technical requirements for the broadband technologies, see Ericsson 700 MHz Further Notice Comments at 2.
175
While 1x EVDO Rel 0 supports 2.4 Mbps over a 1.25 MHz channel, 1x EVDO Rev C or Ultra
MobileBroadband (UMB) 4G technology is projected to support 40 Mbps data rate in a paired 10 MHz channel or
approximately twice the spectral efficiency. See Qualcomm, “Qualcomm Introduces Complete solution for Ultra
Mobile Broadband” at http://www.qualcomm.com/press/releases/2007/070327_complete_solution_ultra.html.
176
Id. Note that 4G systems may utilize higher modulation schemes and MIMO systems to increase the data rate in
both the down and up links.
177
See 3G americas “Mobile Broadband, EDGE, HSPA & LTE” at
http://www.3gamericas.org/PDFs/white_papers/2006_Rysavy_Data_Paper_FINAL_09.15.06.pdf
at 55 (Sept. 2006).
178
See IEEE 802.16 Broadband Wireless Access Working Group, “Draft IEEE 802.16m Requirements” at
http://ieee802.org/16/tgm/docs/80216m-07_002r2.pdf. Using a minimum spectral efficiency of 6.5 bps/Hz will
yield a minimum peak data rate of 65 Mbps in 10 MHz bandwidth (2 x 10 MHz).
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78.
Providing for a large spectrum block also eliminates the need for internal guard
bands that would otherwise be necessary if two smaller spectrum blocks were acquired by
different licensees. The use of two, rather than four, internal guard bands, associated with a
larger spectrum segment, allows increases in network capacity and higher data throughput rates
even with existing technologies. For example, as we observed in the 700 MHz Commercial
Services Notice, if a large spectrum block were divided into two smaller blocks, the overall data
throughput rates of 1xEV-DO transmissions would decrease by 14 percent.179 This lower data
throughput level would be caused by the need to place 0.625-megahertz guard bands at both ends
of two separate blocks and the resulting loss of usable spectrum from having four, rather than
two, internal guard bands.180
79.
A larger 22-megahertz spectrum block (comprised of paired 11-megahertz blocks)
also would provide flexibility for C Block licensees to address potential interference issues.
Base stations in certain blocks in the Lower 700 MHz Band may operate at power levels up to 50
kW ERP if specific power flux density (PFD) limits are met.181 The 22-megahertz Upper 700
MHz Band C Block would contain sufficient spectrum for a licensee to designate some spectrum
as an internal guard band without unduly compromising data rates. Given the elimination of the
Guard Band A Block previously at the bottom of the Upper 700 MHz Band, i.e., at 746-747
MHz, this would permit Upper 700 MHz Band C Block licensees to address any potential
concerns regarding interference from high power operations in the Lower 700 MHz C Block.182
Accordingly, under our revised band plan, the 22-megahertz block not only provides flexibility
for the deployment of 4G services and technologies, but offers Upper 700 MHz Band C Block
licensees the flexibility to address any interference concerns they may have.
80.
For all these reasons, we find that providing for one 22-megahertz spectrum block
serves the public interest. We reject the band plan proposals of Northrop Grumman, AT&T,
Cyren Call, and Frontline, because each of these proposals are premised on the adoption of a
band plan with spectrum blocks that are significantly smaller than the new 22-megahertz C
Block.183 We also reject arguments that by adopting a single large block we are favoring a
179
700 MHz Commercial Services Notice, 21 FCC Rcd at 9371 n.144.
180
The CDMA Development Group reports that a single 1xEV-DO (Rev. 0) transmission on a 10-megahertz block
produces a throughput of 4200-6090 kb/s, but two 1xEV-DO (Rev. 0) transmissions on two 5-megahertz blocks
produce a throughput of only 3600-5220 kb/s. 700 MHz Commercial Services Notice, 21 FCC Rcd at 9371 n.144,
citing Delivering Voice and Data: Comparing CDMA2000 and GSM/GPRS/EDGE/UMTS, CDMA Development
Group, Dec. 2005 available at http://www.cdg.org/resources/white_papers/files/Capacity%20Dec%202005.pdf. The
CDMA Development Group is a consortium comprised of CDMA service providers and manufacturers, application
developers, and content providers.
181
See 47 C.F.R. § 27.50(c).
182
See Verizon Wireless 700 MHz Further Notice Comments at 16-17 (stating that sufficient spectrum would be
available with a 22-megahertz block to allow the commercial licensee to designate a potion of the spectrum as an
internal guard band); see also 4G Coalition 700 MHz Further Notice Comments at 3-4 (commenting on the potential
for a buffer to account for potential interference).
183
See Northrup Grumman 700 MHz Further Notice Comments at 5-6; AT&T 700 MHz Further Notice Comments
at 4-5; Cyren Call 700 MHz Further Notice Comments at 39; Frontline 700 MHz Further Notice Comments at 5154.
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particular business model or potential bidder,184 or limiting competition or participation in the
auction.185 Adopting a large spectrum block is part of our effort to provide an appropriate mix of
licenses and is consistent with the positions of many other commenters. Many commenters
responding to the 700 MHz Commercial Services Notice supported the retention of a larger, e.g.,
20-megahertz block,186 and the record has continued to demonstrate support for a larger spectrum
block in the band.187
81.
With regard to the size of geographic service areas, the use of REAGs for the
Upper 700 MHz Band C Block also will provide a number of benefits. First, as the Commission
noted in adopting the AWS-1 band plan, the use of REAGs may meet the needs of carriers
interested in creating a large regional or nationwide service area, which may be especially
important for new entrants.188 In particular, the use of large geographic service areas helps
reduce transaction costs to both auction participants seeking to aggregate adjoining smaller
geographic areas at auction and licensees seeking to consolidate such areas post auction. At the
same time, REAGs are not so large as to preclude medium-sized providers from acquiring them
at auction. For example, in the auction for AWS-1 licenses, MetroPCS acquired a REAG license
for the highly populated Northeastern U.S., and Cricket acquired a REAG license for the Central
U.S.
82.
Whether used for providing service over a region or aggregated to provide
nationwide service, because REAGs represent larger geographic areas, they help lower the costs
of acquiring a larger customer base to achieve economies of scale.189 To the extent licensees are
better able to create large service areas and achieve economies of scale, they are better able to
offer new and innovative services, including advanced broadband services. When combined
with a large spectrum block, the use of REAGs may be even more effective in promoting these
benefits, especially the provision of wireless broadband services.
83.
EAs in a 12-Megahertz Spectrum Block (Comprised of Paired 6-Megahertz
Blocks) in the Lower 700 MHz Band A Block. We adopt EAs as the geographic service area for
184
See Cellular South 700 MHz Further Notice Reply Comments at 7; MetroPCS 700 MHz Further Notice
Comments at 6, 26; SpectrumCo 700 MHz Further Notice Comments at 13.
185
See, e.g., Cellular South 700 MHz Further Notice Comments at 12, 15; Leap 700 MHz Further Notice Reply
Comments at 2-3; Sprint 700 MHz Further Notice Comments at 3-5;
186
See, e.g., DIRECTV/EchoStar 700 MHz Commercial Services Reply Comments at 7-8 (dividing the 20megahertz D Block would artificially limit the types of services available in the 700 MHz Band); Motorola 700 MHz
Commercial Services Comments at 5 (generally recommending that commercial spectrum be licensed in wider
spectrum blocks); Qualcomm 700 MHz Commercial Services Comments at 18 (the D Block should remain intact
because certain technologies require 20-megahertz bandwidth for fastest possible data transmission); Verizon
Wireless 700 MHz Commercial Services Reply Comments at 6-7 (asserts that a 20-megahertz paired license should
be retained); CTIA 700 MHz Commercial Services Comments at 6-7 (supports maintaining at least 20 megahertz of
paired spectrum in the Upper 700 MHz Band D Block).
187
See PISC 700 MHz Further Notice Comments at 36; 4G Coalition 700 MHz Further Notice Comments at 2-4, 6;
Google 700 MHz Further Notice Comments at 7; Verizon Wireless 700 MHz Further Notice Comments at 11, 16;
WCA 700 MHz Further Notice Comments at 3.
188
See AWS-1 Report and Order, 18 FCC Rcd at 25176 ¶ 38.
189
Id.
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licenses in Block A of the Lower 700 MHz Band, making 176 licenses available in this block.
Similar to the Commission’s approach for the AWS-1 spectrum, we find that there may be
benefits to locating the EA block next to a CMA block, given that smaller providers can benefit
from both CMA and EA blocks.190 Because other portions of the 700 MHz Band are more
appropriate for CMAs and REAGs, for reasons described above, we therefore will assign
licenses based on EAs in the A Block of the Lower 700 MHz Band.
84.
By adopting EAs in the 700 MHz Band, the Commission will provide potential
applicants additional flexibility to implement their business plans by allowing these parties the
option of bidding on a geographic license area based on a size that is between smaller CMAs and
larger REAGs.191 This benefit may occur in several ways. Bidders that want license areas
smaller than REAGs but larger than CMAs will have an opportunity to acquire spectrum more
appropriate for their business plans either by obtaining a single EA license or aggregating
multiple EA licenses.192 The transaction costs of such aggregation should be lower than they are
for licenses based on CMAs, which are smaller and thus require more licenses to cover the same
geographic area. In addition, because EAs are building blocks for REAGs, EA licenses and
REAG licenses can be combined to form larger service territories or larger spectrum holdings
within certain geographic markets. 193 Existing service providers also can acquire EA license
areas to supplement their existing spectrum capacity.194 For these reasons, service providers will
be afforded flexibility by the availability of EA licenses and REAG licenses in the 700 MHz
190
AWS-1 Order on Reconsideration, 20 FCC Rcd at 14066 ¶ 14, 14068 ¶ 18.
191
The Commission provided for a 10-megahertz block of EA licenses in the AWS auction, and the data from that
auction demonstrates that 10-megahertz EA licenses provided an alternative to CMA licenses for small bidders. Of
the 176 Block C licenses offered in Auction No. 66, 173 licenses were won (98.3 percent). Of those 173 licenses,
40 licenses (23.1 percent) were won by small businesses that were eligible for bidding credits in the auction. The
Commission also provided for a 20-megahertz block of EA licenses in the AWS auction.
192
See Union 700 MHz Commercial Services Notice Comments at 3-4 (obtained EA and CMA licenses in Auction
No. 66 due to affordability and ability to integrate); WCA 700 MHz Further Notice Comments at 12 (commenting
that EAs allow companies of various sizes and with a variety of business plans to compete for spectrum); Navajo
Nation 700 MHz Commercial Services Notice Comments at 1 (EA licensees will have more of a localized interest
and allow for focusing on improving services in local area); see also SpectrumCo 700 MHz Further Notice
Comments at 10 (commenting that EAs accommodate the demand of bidders to acquire licenses with an array of
service territory sizes and license configurations). In Auction No. 66, of 104 winning bidders, 70 (approximately
67%) won CMA licenses only, and 21 (approximately 20%) won only EA or combinations of EA and CMA
licenses. See U.S. Cellular 700 MHz Commercial Services Notice Comments at 6; U.S. Cellular 700 MHz
Commercial Services Notice Reply Comments at 8.
193
See AWS-1 Report and Order, 18 FCC Rcd at 25176 ¶ 37; see also 47 C.F.R. § 27.6(a) (reflecting that REAGs
and MEAs are based on EAs). This building block approach makes EA and REAGs, coupled with existing MEA
licenses in the 700 MHz Band, preferable to the use of Metropolitan Trading Areas (MTAs) which we decline to
adopt for this spectrum. We note that the Vermont Department of Public Service, et al. initially proposed the use of
MTAs, but subsequently stated its support for our lower band proposal in the 700 MHz Further Notice which does
not include MTAs. Compare Vermont Department of Public Service, et al. 700 MHz Commercial Services Notice
Comments at 4 (suggesting adoption of MTAs) with Vermont Department of Public Service, et al. 700 MHz Further
Notice Comments at 5-6 (fully supporting the lower band proposal in the 700 MHz Further Notice). We also note
that the geographic areas we adopt in this Second Report and Order are consistent with the geographic areas used for
AWS-1 licensing, while MTAs are not, which may further facilitate spectrum use.
194
See SpectrumCo 700 MHz Further Notice Comments at 10; WCA 700 MHz Further Notice Comments at 12-13.
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Band,195 and this flexibility will serve to advance opportunities for broadband deployment,
including timely deployment to rural areas.
85.
We find that the 12-megahertz A Block (comprised of paired 6-megahertz blocks)
in the Lower 700 MHz Band is appropriate spectrum for EA licenses. This determination will
create opportunities for a variety of bidders, including small and regional providers, to acquire
licenses for small geographic service areas in the Lower 700 MHz Band.196 Because the A Block
is next to a second 12-megahertz block of spectrum, the B Block, that will be licensed using
CMAs, small, regional, and rural providers will also have opportunities to combine these
blocks.197 This is consistent with the AWS-1 band plan, which also included a spectrum block of
this size on an EA basis that was located immediately adjacent to a CMA block.198 Also,
licensees will have additional flexibility resulting from the opportunity to combine the spectrum
in A Block with the adjacent unpaired E Block spectrum which, as we determine below, also will
be licensed over EAs. We conclude that licensing the paired spectrum in Block A of the Lower
700 MHz band on an EA basis is in the public interest.
86.
EAs in a 6-Megahertz Unpaired Spectrum Block in the Lower 700 MHz Band E
Block. We also adopt EAs for the unpaired 6-megahertz E Block of the Lower 700 MHz Band.
A second spectrum block comprised of EA licenses in the 700 MHz Band further enhances the
mix of geographic sizes for licenses in the band. By providing for EA-licensing in this block, the
licenses in the 700 MHz Band will consist of two licenses for each of the geographic areas we
adopted in the 700 MHz Report and Order – CMAs, EAs, and REAGs/EAGs. We find that such
a balance of service areas in this spectrum is consistent with goals we discussed in the 700 MHz
Report and Order, including providing greater access to the spectrum by a variety of potential
licensees.199
87.
An EA service area for the E Block provides licensees with flexibility through the
opportunity to combine spectrum. First, the E Block spectrum can be combined with the
adjacent A Block spectrum which, as we discuss above, also will be licensed over EAs. Second,
the E Block spectrum can be combined with the adjacent D Block spectrum, which has been
assigned over EAGs, because EAs are building blocks for EAGs and thus provide the
opportunity for licensees to combine spectrum and thus enhance flexibility.
88.
Adopting EAs for the E Block also affords a wider range of potential licensees
with the opportunity to take advantage of the power level that applies to the Lower 700 MHz
Band. As we found in the 700 MHz Report and Order, unpaired spectrum blocks provide an
environment “conducive to the provision of broadcast-type operations,” and we therefore
195
See AWS-1 Report and Order, 18 FCC Rcd at 25176 ¶ 37 (“[T]he licensing areas we have chosen will allow
licensees to make adjustments to suit their individual needs.”).
196
See WCA 700 MHz Further Notice Comments at 12; Balanced Consensus Proposal Reply Comments, Attach.;
SpectrumCo 700 MHz Further Notice Comments at 10-11.
197
We note, for example, that the AWS-1 band plan locates the CMA block immediately adjacent to an EA block.
See AWS-1 Order on Reconsideration, 20 FCC Rcd at 14069 ¶ 20.
198
See Auction of Advanced Wireless Services Licenses Closes; Winning Bidders Announced for Auction No. 66,
Attach. A, Public Notice, 21 FCC Rcd 10521, 10529-84 (2006).
199
See 700 MHz Report and Order, 22 FCC Rcd at 8082-85 ¶¶ 42-45.
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decided to permit these unpaired blocks to operate at a power level of 50 kW ERP.200 Although
some commenters argue that E Block should be licensed over REAGs,201 by adopting geographic
areas smaller than REAGs for this block, we enable access to spectrum by a wider range of
licensees who may want to take advantage of the power level for this spectrum but who do not
require a license covering a large geographic area.202
89.
Additional Issues Raised Regarding the Commercial Spectrum in the 700 MHz
Band. As mentioned above, in response either to the 700 MHz Commercial Services Notice or
the 700 MHz Further Notice, some parties have raised additional issues regarding the band plan
for this commercial spectrum. These remaining issues are addressed below.
90.
We reject the proposal of Howard/Javed respecting the delivery of fixed
broadband to underserved areas.203 These proposals are beyond the scope of both the 700 MHz
Commercial Services Notice and the 700 MHz Further Notice.204 In addition, our other actions in
this Second Report and Order, including the provision of a mix of different size service areas
with small area licenses, take significant steps toward enhancing the 700 MHz Band spectrum
for a wide variety of uses, including fixed wireless broadband.
91.
We also reject Howard/Javed’s proposal to adjust the band plan to reflect 10- and
14-megahertz blocks in the A and B Blocks, respectively, of the Lower 700 MHz Band. There is
record support to maintain the size and location of the spectrum blocks in the Lower 700 MHz
Band.205 As we explain elsewhere in this Second Report and Order, we have decided to maintain
the B Block at 12 megahertz (comprised of 6-megahertz pairs) to provide licensees the
opportunity to combine that block with the C Block, which has already been licensed and also is
a 12 megahertz block (comprised of 6-megahertz pairs) based on CMAs.206 We also decline to
adopt Howard/Javed’s alternative suggestion that the B Block be made an asymmetrically paired
12-megahertz block with an unpaired E Block increased to 8 megahertz, to incorporate
asymmetric download and upload capacity in broadband systems.207 While Howard/Javed state
200
Id. at 8100 ¶ 95.
201
See Cellular South 700 MHz Further Notice Comments at 10-11; RCA 700 MHz Further Notice Comments at 12.
202
See Aloha 700 MHz Further Notice Comments at 3 (commenting that EAs should be adopted for this block to
accommodate small concerns interested in using the spectrum for one-way high powered transmissions).
203
Howard/Javed propose that the Commission mandate that B Block of the Lower 700 MHz Band be used for
delivering fixed wireless broadband to “underserved areas formally designated as such.” See Howard/Javed 700
MHz Commercial Services Comments at 38-40. Alternatively, they ask that separate procedures for MSAs, on the
one hand, and RSAs, on the other hand, be employed respecting the use of fixed wireless broadband in those license
areas, and that such procedures obligate B Block licensees to enter into agreements with parties proposing to use that
spectrum to serve underserved areas. Id. at 40-41.
204
See generally 700 MHz Commercial Services Notice; 700 MHz Further Notice; see also Howard/Javed 700 MHz
Commercial Services Comments at 38.
205
See TCA 700 MHz Further Notice Comments at 3-5; Leap 700 MHz Further Notice Comments at 3; Cellular
South 700 MHz Further Notice Reply Comments at 6.
206
We also determine elsewhere in this Second Report and Order that there are benefits associated with having a 12megahertz A Block licensed on an EA basis next to the 12-megahertz B Block licensed on a CMA basis because
small and regional providers will be able to combine these smaller area licenses with identical spectrum block sizes.
207
Howard/Javed 700 MHz Commercial Services Comments at 23.
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that these proposals may be supported by the upcoming WiMax standards for this spectrum,
these proposals are not necessary for the provision of WiMax in the 700 MHz Band. There also
is little support in the record for such a band plan.
92.
In addition, we will not adopt the recommendation of Tropos that the A and B
Blocks of the Lower 700 MHz Band should be auctioned and awarded to licensees that “would
administer a contention based unlicensed spectrum environment.”208 We agree with CTIA and
AT&T that Tropos’s proposal is not consistent with the flexible use intended for this spectrum.209
We also find that the technical rules are sufficient to permit the use of Tropos’s technologies by a
licensee in the 700 MHz Band. Finally, there is little support in the record for Tropos’s proposal.
93.
Corr requests that the C and D Blocks of the Upper 700 MHz Band be realigned
to form two 15-megahertz blocks (each comprised of paired 7.5-megahertz blocks), with one
licensed over EAGs and the other over REAGs.210 Our decision to reconfigure the Upper 700
MHz Band in the manner adopted in this Second Report and Order meets the needs of a broad
range of spectrum providers and the public. First, our decision to maintain a license with a wider
bandwidth helps to provide a mix of license sizes throughout the entire 700 MHz Band so
bidders will have options in acquiring licenses that best meet their requirements. Second, our
decision to provide another license, with appropriate conditions, in conjunction with a
public/private partnership to address broadband for public safety addresses important concerns
relating to an interoperable public safety network.
94.
We decline to adopt NextWave’s proposed band plan, which is based on the use
of unpaired spectrum blocks to allow for the development of TDD technologies.211 Similarly, we
will not adopt Navini’s suggestion to allocate additional spectrum in the 700 MHz Band for
mobile WiMAX deployment that is specially conducive to the use of TDD technology, i.e., 15or 30-megahertz spectrum blocks.212 The 700 MHz Band already provides for two unpaired
208
See Tropos 700 MHz Commercial Services Comments at 10.
209
See CTIA Commercial Services Notice Reply Comments at 10-11; AT&T Commercial Services Notice Reply
Comments at 13.
210
See Corr 700 MHz Commercial Services Comments at 3.
211
See NextWave 700 MHz Commercial Services Comments at 6-10 & Attach. I; NextWave 700 MHz Commercial
Services Reply Comments at 2-9 & Attach. I. NextWave’s modified proposal includes two new unpaired 10megahertz blocks and one new paired 10-megahertz block (comprised of two 5-megahertz blocks) in the Upper 700
MHz Band, and two new unpaired 12-megahertz blocks in the Lower 700 MHz Band. The size and location of the
current unpaired 6-megahertz block, E Block in the Lower 700 MHz Band, would not be altered. See NextWave
700 MHz Commercial Services Reply Comments at Attach. I. NextWave’s original proposal suggested adopting
unpaired spectrum blocks of 6-15 megahertz. See NextWave 700 MHz Commercial Services Notice Comments at 78 & Attach. I. The reasons for opposing NextWave’s proposal include: it would hamper the growth of alternative
services, see AT&T 700 MHz Commercial Services Reply Comments at 13-14 & n.32; MetroPCS 700 MHz
Commercial Services Reply Comments at 15; it has not been demonstrated that TDD will be successful in the
marketplace, see MetroPCS 700 MHz Commercial Services Reply Comments at 15; Alltel 700 MHz Commercial
Services Reply Comments at 5; and the Commission’s decision should not favor a particular technology, see
Cingular 700 MHz Commercial Services Reply Comments at 10; AT&T 700 MHz Commercial Services Reply
Comments at 14.
212
Navini 700 MHz Commercial Services Comments at 1. Navini states that its current offering is built on a TDD
scheme utilizing 16.5 megahertz bands. Id.
46
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licenses, one of which remains to be assigned (i.e., E Block of the Lower 700 MHz Band). In
addition, the Commission provided for a flexible use approach with respect to the services and
technologies, “including provision of the full range of FDD- and TDD-based wireless
services.”213 The band plan we are adopting today is carefully crafted to provide a mix of
licenses of various sizes and bandwidths for the entire 700 MHz Band to meet the competing
needs of a wide range of commenters and to meet a number of important policy goals, and we
find that maintaining the current size of the unauctioned unpaired spectrum band is consistent
with our decisions regarding the rest of the band plan.
95.
We also decline to adopt Google’s suggestion that the Commission should require
two-way broadband platforms in the E Block of the Lower 700 MHz Band.214 The Commission
has provided for flexibility in services to be offered and technologies to be deployed in the 700
MHz Band. In the Lower 700 MHz Report and Order, the Commission adopted a flexible
allocation for the Lower 700 MHz Band which “will allow service providers to select the
technology they wish to use to provide new services that the market may demand.”215 Google’s
proposal regarding the use of the Lower 700 MHz Band’s E Block could reduce this flexibility,
and thus restrict the extent to which any potential bidder and licensee could operate in the band.
Google does not present evidence of any significant support for the Commission deviating from
its policy respecting flexible use, and we do not agree with Google’s suggestion that the E Block
lacks any immediate commercial value. The record reflects that the similar unpaired 6megahertz D Block in the Lower 700 MHz Band, which is adjacent to E Block, is being used by
Qualcomm for its MediaFLO service.216 As discussed elsewhere in this Second Report and
Order, service providers that hold licenses for the Lower 700 MHz Band E Block will have
significant incentives to provide advanced broadband and other services. In addition, by
licensing the E Block over smaller geographic areas, EAs, we are providing the opportunity for a
wider range of potential licensees to access this spectrum. We therefore see no need to condition
the use of this block as requested by Google.
96.
Finally, we do not address a reallocation of additional spectrum for public safety
purposes as discussed by Association of Public-Safety Communications Officials-International,
Inc. (APCO), International Association of Chiefs of Police, International Association of Fire
213
Lower 700 MHz Report and Order, 17 FCC Rcd at 1070-71 ¶ 125, 1051-52 ¶ 70.
214
See Letter from Richard S. Whitt, counsel for Google Inc. to Marlene H. Dortch, Secretary, FCC, in WT Docket
No. 06-150 (filed May 21, 2007) (“Google May 21 Ex Parte in WT Docket No. 06-150”) at 4-5. Specifically,
Google argues that the E Block “only should be (1) utilized for interactive, two-way broadband services, (2)
connected to the public Internet, and (3) used to support innovative software-based applications, services, and
devices.” Id. at 4.
215
Lower 700 MHz Report and Order, 17 FCC Rcd at 1023 ¶ 1. The Commission further found that a flexible use
approach was consistent with Section 303(y) of the Communications Act, which requires the Commission to make
affirmative findings that a proposed flexible use allocation (1) is consistent with international agreements; (2) would
be in the public interest; (3) would not deter investment in communications services and systems, or technology
development; and (4) would not result in harmful interference among users. Id. at 1030 ¶ 15 (citing 47 U.S.C. §
303(y)). The Commission’s rules allow non-guard band 700 MHz licensees to provide “any services for which its
frequency bands are allocated.” 47 C.F.R. § 27.2(a).
216
See Qualcomm Google Ex Parte Comments at 3-4. Qualcomm comments that other mobile video technologies
also operate in a 6-megahertz unpaired block of spectrum. Id. at 4.
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Chiefs, Major Cities Chiefs Association, Major County Sheriffs Association, and National
Sheriffs’ Association in their comments on the 700 MHz Commercial Services Notice.217 As
these commenters acknowledge, such a reallocation is beyond the Commission’s current
statutory authority.218 In any event, we are adopting provisions elsewhere concerning the 700
MHz Public Safety Band and to establish nationwide interoperable wireless broadband for public
safety.
b.
Guard Bands Spectrum
(i)
Background
97.
In the 700 MHz Further Notice, we proposed to change the sizes and locations of
the Upper 700 MHz Guard Bands.219 We sought comment on these changes within the
framework of our tentative conclusion to designate the lower portion of the 700 MHz Public
Safety Band for broadband communications, and to consolidate the narrowband channels to the
upper portion of the public safety spectrum.220 We tentatively concluded that the Commission
should not adopt the BOP for the Guard Bands spectrum, or other proposals to the extent that
they propose a reallocation of commercial spectrum for public safety use or the assignment of
spectrum from our auction inventory without competitive bidding.221 We reasoned that, prior to
the completion of the DTV transition, Section 337 of the Act appears to prohibit the Commission
from reallocating commercial spectrum for public safety use as proposed by the BOP and
Ericsson.222 Similarly, we stated that Section 337 appears to require competitive bidding to
assign spectrum allocated for commercial use, making the BOP and the critical infrastructure
industries (CII) proposals potentially unlawful.223 Finally, we tentatively concluded that even if
the Commission possessed legal authority to adopt the BOP, Ericsson, or CII proposals, they
217
See APCO et al. 700 MHz Commercial Services Notice Reply Comments at 2.
218
Id. The Balanced Budget Act mandated that with respect to the 60 megahertz in the Upper 700 MHz Band, the
Commission allocate 24 megahertz of spectrum for public safety services and the remaining 36 megahertz of
spectrum for commercial use to be assigned by competitive bidding. See 47 U.S.C. § 337(a) (enacted by the
Balanced Budget Act of 1997, Pub. L. No. 105-33, § 3004, 111 Stat. 251, 266 (adding new Section 337(a) and
establishing initial timetable for conducting auctions)); Balanced Budget Act of 1997 § 3004 (adding new § 337 of
the Communications Act). The Commission has made that allocation. See Reallocation of Television Channels 6069, the 746-806 MHz Band, ET Docket No. 97-157, Report and Order, 12 FCC Rcd 22953 ¶ 1 (1998), recon., 13
FCC Rcd 21578 (1998) (Upper 700 MHz Reallocation Order). The DTV Act requires that the Commission auction
the “recovered analog spectrum” which does not include the spectrum required by Section 337 of the Act to be made
available for public safety services. DTV Act § 3003(a)(2); see also 700 MHz Commercial Services Notice, 21 FCC
Rcd at 9349 ¶ 5, 9350-51 ¶ 9.
219
See 700 MHz Further Notice, 22 FCC Rcd at 8132 ¶ 183.
220
Id.
221
Id. at 8147 ¶ 227. The Commission initially sought comment on the BOP and other proposals regarding the
Guard Bands in the 700 MHz Guard Bands Notice. See 700 MHz Guard Bands Notice, 21 FCC Rcd at 10430-35
¶¶ 40-48.
222
See 700 MHz Further Notice, 22 FCC Rcd at 8147 ¶ 227.
223
Id.
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would not serve the public interest because they seek to assign additional spectrum to current
licensees without competitive bidding.224
98.
We also noted that a reconfiguration of the 700 MHz Public Safety Band could
result in interference to the relocated public safety narrowband channels from existing Canadian
and Mexican TV broadcasters in certain border areas.225 The Canadian government has agreed to
clear broadcasters from TV channels 63 and 68 and to use the spectrum for public safety
purposes, and will clear broadcasters from all TV channels above channel 52 by August 31,
2011.226 As such, channels 64 and 69, where all of the reconfigured narrowband channels will
reside, are unlikely to be cleared until at least that date. Consequently, if we consolidate the
public safety narrowband channels onto only channels 64 and 69, all narrowband channels will
be subject to interference from Canadian broadcast operations within border areas during
Canada’s DTV transition. Furthermore, Mexico has not yet announced a date for transitioning
its TV channels, including channels 64 and 69.227 Accordingly, we proposed that public safety
narrowband operations be permitted in Canadian border areas within the public safety
allocation’s internal guard band until the end of Canada’s DTV transition. We also proposed to
impose a license condition upon the non-Guard Bands commercial licensee adjacent to the public
safety broadband allocation, creating temporary access in those border areas to 1 megahertz of
that adjacent block to preserve the full 5-megahertz bandwidth of the public safety broadband
allocation.228
99.
After reaching tentative conclusions to not adopt the BOP, CII, or Ericsson
proposals, we invited comment on an alternative proposal filed by the BOP proponents (the
Access Spectrum/Pegasus Alternative Proposal), which sought to address legal concerns raised
by the BOP. Under the alternative proposal, 32 megahertz of commercial broadband spectrum
would be auctioned, but the size of the public safety allocation would remain unchanged.229
Specifically, the proposal assumes reconfiguration of the 700 MHz public safety spectrum and
seeks to remedy potential public safety narrowband interference issues by shifting the entire 700
MHz Public Safety Band downward by 1 megahertz from its current location. In addition, as
part of this shift, the current Guard Band A Block (at 746-747 MHz and 776-777 MHz) would be
relocated immediately below the paired public safety broadband spectrum, and the Guard Band
B Block would be relocated immediately above the public safety narrowband spectrum, and
reduced from a 4-megahertz block (paired 2-megahertz blocks) to a 2-megahertz block (paired 1224
Id. The Commission added that the BOP also could create an increased potential for interference between
700 MHz Band public safety and commercial operations. Id.
225
See 700 MHz Further Notice, 22 FCC Rcd at 8136 ¶¶ 195-196; see also 700 MHz Guard Bands Notice, 21 FCC
Rcd at 10432 ¶ 45.
226
Broadcasting Public Notice CRTC 2007-53 (May 17, 2007), available at
http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm.
227
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 8. Mexican television broadcasters operate in
the border areas on TV channels 63 and 64. Id. According to Access Spectrum/Pegasus, having interoperable
public safety channels on both channels 63 and 68 in the United States helps alleviate interference issues. Access
Spectrum/Pegasus 700 MHz Further Notice Comments at 10.
228
See 700 MHz Further Notice, 22 FCC Rcd at 8136 ¶¶ 195-196.
229
Id. at 8136-8137 ¶¶ 195-199.
49
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megahertz blocks). The relocated Guard Band B Block would then serve as a Commission-held
guard band, still within the commercial allocation, to protect the public safety narrowband
channels.
100. The Access Spectrum/Pegasus Alternative Proposal (a component of the Upper
700 MHz band plan Proposals 3, 4, and 5 in the 700 MHz Further Notice) would require
incumbent Guard Bands A and B Block licensees to “repack” their licenses into the reconfigured
Guard Band A Block. The proposal also includes a commitment of the participating Guard Band
licensees to fund the reconfiguration of the public safety spectrum, provided that the
reconfigured Guard Band A Block would be subject to the same service rules as the adjacent
non-Guard Band commercial licenses, including the flexibility to deploy cellular architectures.
In the 700 MHz Further Notice, we recognized that this proposal, particularly the spectrum
“repacking,” contemplates agreement of the incumbent licensees regarding the revised band
plan, including geographic area assignments.230 We tentatively concluded that we should reject
the proposal if the incumbent licensees could not reach an agreement.231
101. As explained below, in response to the 700 MHz Further Notice, we received
comments on the Access Spectrum/Pegasus Alternative Proposal. We also received comments
on our proposal to provide temporary access to 1 megahertz of non-Guard Band commercial
spectrum to address potential interference to public safety communications at the Canadian
border. Cyren Call and Ericsson submitted additional proposals concerning the 700 MHz Guard
Bands. Finally, on July 6, 2007, all but one of the Guard Band licensees joined in a proposal
(“July 6, 2007 Guard Bands Proposal”) that addresses a number of objections to the Access
Spectrum/Pegasus Alternative Proposal and which informs our determinations below.232
102. Border Interference. There is widespread support for those aspects of the Access
Spectrum/Pegasus Alternative Proposal that address potential interference to public safety
narrowband operations in border areas. Northrop Grumman states that the proposal is the most
appropriate plan to attain nationwide availability of public safety narrowband interoperability
channels, absent a frequency shift or migration requirement.233 In most respects, WCA supports
band proposals that would incorporate Access Spectrum/Pegasus’ Alternative Proposal.234 WCA
asserts that these proposals would ensure public safety interoperability via a uniform
reconfiguration throughout the United States including along the borders.235 The 4G Coalition
notes that the alternative proposal would resolve funding and Computer Assisted Pre-
230
Id. at 8137 ¶ 199.
231
Id.
232
See Letter from Kathleen Wallman, on behalf of Access Spectrum, LLC, Dominion 700, Inc., Pegasus
Communications Corporation, and Radiofone Nationwide PCS, LLC, to Marlene H. Dortch, Secretary, FCC, Ex
Parte in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 (filed July 9, 2007) (“Access
Spectrum/Pegasus July 6, 2007 Ex Parte”).
233
See Northrop Grumman 700 MHz Further Notice Comments at 4.
234
See WCA 700 MHz Further Notice Comments at 4.
235
Id. at 4-6, 9.
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Coordination Resource and Database (“CAPRAD”) reprogramming issues, while other band
plan proposals do not.236
103. Verizon Wireless states that the alternative proposal would address public safety
interference issues in border areas, minimize the potential for interference between 700 MHz
Band licensees,237 and permit the Commission to provide public safety entities with spectrum
assignments aligned with Canadian allocations.238 NPSTC also favors band plans that
incorporate the alternative proposal because it would address potential conflicts with Canadian
TV broadcasters at the border arising from reconfiguration of the public safety spectrum.239
Arcadian also supports the alternative proposal because it would address border area interference
concerns and provide funding for reconfiguration of the 700 MHz Public Safety Band.240
104. Conversely, Alcatel-Lucent contends that the 1-megahertz downward shift under
the alternative proposal would complicate international coordination and result in
underutilization of the public safety broadband spectrum.241 AT&T also opposes the alternative
proposal, arguing that a guard band is required between the Lower and Upper 700 MHz C
Blocks due to interference (or “noise-rise”) potential, particularly where the types of services and
power limits may differ.242 MetroPCS claims that the alternative proposal would not resolve
interference issues, and that the additional flexibility and capabilities afforded the 700 MHz
Guard Band licensees would create a “windfall” for the incumbents.243 Finally, some
commenters continue to support the BOP.244
105. Temporary Public Safety Access to Commercial Spectrum in the Upper 700 MHz
Band. Alcatel-Lucent opposes temporary access into the commercial Upper 700 MHz Band
spectrum, adjacent to the 700 MHz Public Safety Band, for public safety broadband in Canadian
border areas, and instead advocates flexible operating parameters for the 700 MHz Public Safety
Band’s internal guard band.245 To ensure rapid deployment of public safety services, AlcatelLucent urges us to permit limited narrowband use of the internal public safety guard band in
236
See 4G Coalition 700 MHz Further Notice Comments at 22.
237
See Verizon Wireless 700 MHz Further Notice Comments at 16.
238
Id. at 17. Verizon Wireless suggests that the proposal would diminish the risk of interference to public safety
licensees because it would retain the 1-megahertz guard band that separates the commercial and public safety
spectrum, and also would provide enough spectrum in a larger 22-megahertz Upper 700 MHz Band C Block to
allow for the use of an additional internal guard band to protect against high-power operations from the Lower 700
MHz Band C Block. Id. at 18.
239
See NPSTC 700 MHz Further Notice Comments at 25.
240
See Arcadian 700 MHz Further Notice Reply Comments at 3.
241
See ALU 700 MHz Further Notice Comments at 22.
242
See AT&T 700 MHz Further Notice Reply Comments at 25-28.
243
See MetroPCS 700 MHz Further Notice Comments at 24; see also Letter from Mark Stachiw, MetroPCS to
Marlene H. Dortch, Secretary, FCC, Ex Parte in WT Docket No. 06-169 (filed Mar. 22, 2007).
244
See, e.g., Access Spectrum/Pegasus 700 MHz Further Notice Comments, App. B; Northrop Grumman 700 MHz
Further Notice Comments at 10.
245
See Alcatel-Lucent 700 MHz Further Notice Comments at 24.
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border areas and to expeditiously conclude temporary international agreements.246 Access
Spectrum/Pegasus oppose Alcatel-Lucent’s proposal for flexible use of the public safety internal
guard band to address border interference issues because it would only provide a temporary
solution and preclude the permanent availability of interoperability channels.247 They also argue
that Alcatel-Lucent’s proposal to permit temporary use of the public safety internal guard band
for narrowband communications would effectively reduce the size of the available bandwidth of
the public safety broadband spectrum because a 1-megahertz guard band between public safety’s
broadband and narrowband operations is necessary to prevent interference between the two
uses.248
106. Northrop Grumman contends that providing public safety entities temporary
access to commercial spectrum in the Upper 700 MHz Band would not meet their needs because
it would create incompatibility with non-border areas by temporarily relocating the narrowband
channels in border areas, thereby thwarting nationwide interoperability.249 WCA also contends
that such an interim allocation shift would frustrate interoperability and not serve the public
interest.250 The 4G Coalition contends that any band plan that the Commission adopts should not
isolate public safety agencies in border areas, which would impede nationwide
interoperability.251 It argues that the temporary access plan is unlawful for some of the same
reasons we have tentatively concluded not to adopt the BOP.252 NPSTC similarly argues that the
temporary access proposal would fail to solve public safety interoperability at the border and that
the costs associated with returning it to permanent status are not known at this time.253
107. Ericsson argues that if temporary access into commercial Upper 700 MHz Band
spectrum is created to maintain the full bandwidth of the public safety broadband spectrum, it
would be more difficult to modify the band plan and the spectrum would be significantly
devalued, possibly impeding use of the spectrum.254 Ericsson also asserts that the temporary
access proposal does not address broadcast interference at the Mexican border, and that licensees
in the 700 MHz Band would have problems in certain border areas.255 Ericsson urges the
Commission to include the entire 700 MHz Band in its interoperability objectives, and to pursue
bilateral talks to relieve spectrum constraints by February 2009.256 Ericsson asserts that the
temporary access proposal fails to address whether Mexico would agree to shut down broadcast
246
Id. at 21.
247
See Access Spectrum/Pegasus 700 MHz Further Notice Reply Comments at 10-11.
248
Id. at 12.
249
See Northrop Grumman 700 MHz Further Notice Comments at 4.
250
See WCA 700 MHz Further Notice Comments at 8.
251
See 4G Coalition 700 MHz Further Notice Comments at 22.
252
Id. at 22.
253
See NPSTC 700 MHz Further Notice Comments at 23, 24.
254
See Ericsson 700 MHz Further Notice Comments at 17.
255
Id.
256
Id.
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operations in the band, and that it is better to harmonize the entire 700 MHz Band than to adopt
temporary solutions that would be difficult to reverse.257
108. Cyren Call Proposal. Cyren Call supports a new band plan (based on Proposal 4
in the 700 MHz Further Notice), where the Guard Bands A and B Block licenses would be
“repacked” into a reconfigured Guard Band A Block between two non-Guard Band commercial
blocks (a revised D Block and a new “E Block”) in the Upper 700 MHz Band, rather than
between the non-Guard Band commercial block (the new “E Block”) and the public safety
spectrum. Cyren Call contends that this approach would make the public safety broadband
spectrum, and adjacent non-Guard Bands commercial spectrum, more attractive to carriers
seeking a nationwide footprint of up to 22 megahertz (or 24 megahertz if acquiring the revised
Guard Band A Block).258
109. Ericsson Proposal. Ericsson argues that the Guard Band B Block should move to
747-749 MHz and 777-779 MHz, immediately above the existing Guard Band A Block.259
Ericsson contends that this approach would improve interference protection for the public safety
narrowband channels, providing an additional buffer between the Upper 700 MHz C Block and
the public safety spectrum.260 Ericsson adds that, on the lower half of the paired spectrum, its
band plan would provide an additional buffer between the Lower and Upper 700 MHz C Blocks,
where operations in the Lower 700 MHz Band have significantly higher power limits and may
pose a threat to the Upper 700 MHz C Block.261 Verizon Wireless opposes the Ericsson
proposal, stating that it fails to address the Canadian border issue because public safety entities
would lack the flexibility to deploy cross-border interoperable narrowband systems wherever
blocked by Canadian broadcast facilities.262
110. July 6, 2007 Guard Bands Proposal. Access Spectrum/Pegasus, joined by other
Guard Bands licensees, filed a new proposal dated July 6, 2007, which is based on Cyren Call’s
plan (discussed above), whereby all Guard Band A Block licensees (except PTMPS II)
voluntarily “repack” into a new Guard Band A Block that is located between two non-Guard
Band commercial 700 MHz Band blocks (the C and D Blocks) rather than adjacent to the public
safety spectrum.263 As explained in more detail below, these licensees provided signed waivers
of their rights to object to these license modifications and have agreed to transfer their Guard
Band B Block licenses to the Commission.
(ii)
Discussion
111. We adopt a revised band plan for the 700 MHz Guard Bands spectrum and the
Upper 700 MHz Band, which includes features of Cyren Call’s additional band plan proposal
257
Id. at 21.
258
See Cyren Call 700 MHz Further Notice Comments, Att. 1.
259
See Ericsson 700 MHz Further Notice Comments at 23.
260
Id. at 23-24.
261
Id. at 26-27.
262
Verizon Wireless 700 MHz Further Notice Reply Comments at 11.
263
See Access Spectrum/Pegasus July 6, 2007 Ex Parte.
53
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and the July 6, 2007 Guard Bands Proposal. As an initial matter, we determine that with the
reconfiguration of the 700 MHz Public Safety Band, the Guard Band B Block will no longer be
necessary as a guard band between the non-Guard Bands commercial spectrum, and the public
safety broadband spectrum.264 To enable a more efficient, shared interoperable broadband
network, we locate the Guard Band A Block between the Upper 700 MHz Band C and D Blocks,
shifting the public safety broadband allocation downward by 1 megahertz and placing it adjacent
to the commercial D Block that will be used for the 700 MHz Public/Private Partnership. This
new band plan addresses potential public safety narrowband interoperability issues in border
areas, and frees up 2 megahertz of B Block Guard Band spectrum nationwide (except for PTPMS
II’s two grandfathered MEAs) to be included in the auction of commercial spectrum.
112. Finally, consistent with our tentative conclusion in the 700 MHz Further Notice,
we determine that we lack legal authority to adopt the BOP, the CII, or the Ericsson proposals
because they propose a reallocation of commercial spectrum to public safety, and assignment of
commercial licenses from our auction inventory without competitive bidding. We also reject the
most recent Ericsson band plan proposal as well as the Access Spectrum/Pegasus Alternative
Proposal and the Cyren Call proposal to the extent they are inconsistent with our actions in this
Second Report and Order.
(a)
Revisions to Upper 700 MHz Band Plan for
Guard Bands
113. Background. As explained above, the reconfiguration of the 700 MHz Public
Safety Band may result in interference to the relocated narrowband channels from existing
Canadian and Mexican TV broadcasters in certain border areas. Both the BOP, and the Access
Spectrum/Pegasus alternative to the BOP, propose a 1-megahertz downward shift of the public
safety spectrum into the former Guard Bands spectrum at 763-764 MHz and 793-794 MHz while
maintaining the full 24-megahertz public safety allocation required by Section 337 of the Act.
This shift creates a 1-megahertz overlap between the consolidated narrowband channels and TV
channels 63 and 68, which Canada has already agreed to clear of broadcasters. This shift also
addresses the Canadian border issue for public safety operations on the reconfigured narrowband
channels.
114. In addition to addressing the Canadian border issue, the Access Spectrum/Pegasus
Alternative Proposal includes an agreement to consolidate the existing Guard Bands A and B
Block licenses into a 2-megahertz block (comprised of paired spectrum at 762-763 MHz and
792-793 MHz). The repacking frees up an additional 2 megahertz of commercial spectrum to be
added to the licenses set for auction, permitting the auction of 32 megahertz of commercial
spectrum in the Upper 700 MHz Band. Finally, the alternative proposal would relocate the
Guard Band B Block, which is reduced to a 2-megahertz block (comprised of paired spectrum at
775-776 MHz and 805-806 MHz). The lower half of the reconfigured B Block (at 775-776
264
However, as discussed below, a reconfigured 1-megahertz B Block remains necessary as a guard band between
the public safety narrowband channels and the upper half of the paired C Block.
54
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MHz) would serve as a necessary guard band to protect the public safety narrowband channels
from commercial operations in the upper half of the paired C Block.265
115. After the release of the 700 MHz Further Notice, Access Spectrum/Pegasus
modified their alternative proposal to request auction discount vouchers (also called bidding
offset credits) to account for relinquishing spectrum to the Commission as part of the repacking
plan, and for their agreement to fund the 700 MHz Public Safety Band reconfiguration.266 They
also proposed an “option-variant” of their two-sided auction proposal.267 Access Spectrum
explained that the variant was designed to address obligations to certain customers, including a
right of first refusal from one customer with respect to all of its 700 MHz Guard Band licenses.268
Access Spectrum/Pegasus also advised that one incumbent Guard Band licensee, PTPMS II, has
declined to repack its three licenses into the reconfigured A Block.269
116. July 6, 2007 Guard Bands Proposal. Given the increasing complications of their
alternative proposal, Access Spectrum/Pegasus, joined by other Guard Bands licensees, filed a
new proposal dated July 6, 2007, which is partly based on Cyren Call’s additional proposal
(discussed above). Under the new proposal, all Guard Band A Block licensees (except PTPMS
II) “repack” into a new Guard Band A Block located between two non-Guard Band commercial
blocks (the C and D Blocks) rather than next to the public safety broadband allocation.270 In the
July 6, 2007 ex parte letter, Access Spectrum/Pegasus and the other Guard Bands licensees
provided signed waivers of their rights to object to these license modifications and agreed to
transfer their remaining B Block licenses to the Commission. They also provided that their new
proposal is not conditioned upon auction discount vouchers or the two-sided auction “option
variant,”271 and each licensee affirmatively waived its right under Section 316 to object to the
265
By contrast, the upper half of the reconfigured B Block (at 805-806 MHz) will be located between 700 MHz
public safety and 800 MHz public safety spectrum rather than between commercial and public safety spectrum.
266
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 13-14. Access Spectrum/Pegasus proposed that
the vouchers be useable in any auction and fully transferable, measured by the population covered by the
surrendered bandwidth (i.e., in MHz-pops), and expressed in a $/MHz-pop value equal to the gross value of winning
bids in the auction of Upper 700 MHz licenses divided by the total MHz-pops auctioned. Id.
267
Under the option variant, after the auction of the adjacent D Block, Access Spectrum/Pegasus could choose to
either: (a) sell each repacked A Block license to the D Block licensee at the D Block’s $/MHz-pop auction value; or
(b) move to the reconfigured B Block within the matching service area. Id. at 11, n.15, App. A at 2-3.
268
See Letter from Ruth Milkman, Counsel, Access Spectrum, LLC to Marlene H. Dortch, Secretary, FCC, Ex Parte
in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 at 2 (filed July 3, 2007).
269
See Access Spectrum/Pegasus 700 MHz Further Notice Reply Comments at 7. With respect to Radiofone,
Access Spectrum/Pegasus propose that the Radiofone B Block license be grandfathered at its existing spectral
location, such that the available public safety broadband spectrum in the Gulf service area would be reduced from 5
megahertz to 4 megahertz.
270
Access Spectrum/Pegasus July 6, 2007 Ex Parte. Radiofone has agreed to surrender its B Block license in the
Gulf (MEA 52), and will not hold any license in the relocated A Block. See Letter from Access Spectrum, LLC,
Dominion 700, Inc., Pegasus Communications Corporation, and Radiofone Nationwide PCS, LLC, to Marlene H.
Dortch, Secretary, FCC, Ex Parte in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 (filed July 13,
2007) (“Access Spectrum/Pegasus July 13, 2007 Ex Parte”).
271
Access Spectrum/Pegasus July 6, 2007 Ex Parte.
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license modifications that would not include such mechanisms.272 These proposals therefore are
moot and it is unnecessary to reach a decision regarding the use of vouchers or a two-sided
auction to achieve our goals in this proceeding. All of the incumbent Guard Bands licensees,
except PTPMS II, executed the agreement. APCO and NPSTC support the July 6, 2007 Guard
Bands Proposal.273 The 4G Coalition – whose members include DIRECTV, EchoStar, Google,
Intel, Skype, and Yahoo – also supports the proposal, provided that we adopt a public/private
partnership involving a commercial license adjacent to the public safety spectrum in the Upper
700 MHz Band.274
117. On July 26, 2007, the Guard Band licensees reaffirmed their waiver of rights
under Section 316, and explained that the waiver contemplates that “the new Upper 700 MHz A
Block would be afforded the same OOBE limits, cellular architecture, and frequency
coordination rules as the lower adjacent Upper 700 MHz commercial block without ‘open
access’ obligations.”275 Access Spectrum/Pegasus and Dominion advised that they will not
object to modification of their Guard Band A Block licenses, effective upon publication of this
Second Report and Order in the Federal Register.276 In addition, Access Spectrum/Pegasus and
Radiofone advised that they would transfer their Guard Band B Block licensees to the
Commission, within five days of publication of this Second Report and Order in the Federal
Register.277 PTPMS II, the only other Guard Bands licensee, has not agreed to modification of
its one A Block license, or to return its two B Block licenses to the Commission. On July 27,
2007, Arcadian Networks, Inc., which holds a limited right of first refusal regarding Access
Spectrum’s Guard Band licenses, advised the Commission that it supports the spectrum
repacking proposal, and that its right of first refusal is not applicable to any Guard Band A Block
licenses that would be conveyed as part of the spectrum repacking, or any B Block license
surrendered to the Commission for cancellation.278
118. Discussion. We conclude that adoption of the July 6, 2007 Guard Bands Proposal
will serve the public interest. Foremost, we agree with commenters that it is better to
permanently address the Canadian border problem and harmonize the entire 700 MHz Band than
272
Id.
273
See Letter from Robert M. Gurss, APCO International, to Marlene H. Dortch, Secretary, FCC, Ex Parte in WT
Docket Nos. 96-86, 06-150, and 06-169, and PS Docket No. 06-229 (filed July 9, 2007) (noting that APCO and
NPSTC support the July 6, 2007 Guard Bands Proposal, provided that the Commission ensures “reimbursement for
public safety narrowband licensees that incur costs to reprogram radios to the new channel allotments”).
274
See Letter from 4G Coalition to Marlene H. Dortch, Secretary, FCC, Ex Parte in WT Docket Nos. 96-86, 06-150,
06-169, PS Docket No. 06-229 at 1 (filed July 11, 2007).
275
See Letter from Access Spectrum, LLC, Access 700, LLC, Access 700 Holdings, LLC, Dominion 700, Inc.,
Pegasus Guard Band LLC, and Radiofone Nationwide PCS, LLC, to Marlene H. Dortch, Secretary, FCC, Ex Parte
in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 at 2 (filed July 26, 2007) (“Access
Spectrum/Pegasus July 26, 2007 Ex Parte”).
276
Id. at 1.
277
Id.
278
See Letter from Access Spectrum, LLC, Access 700, LLC, Access 700 Holdings, and Arcadian Networks, Inc., to
Marlene H. Dortch, Secretary, FCC, Ex Parte in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229
(filed July 27, 2007) (“Access Spectrum/Arcadian July 27, 2007 Ex Parte”).
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to adopt an interim solution such as the temporary access to 1 megahertz of spectrum proposed in
the 700 MHz Further Notice. We adopt this proposal based on the agreement of all Guard Band
licensees except PTPMS II, whose two Guard Band B Block licenses we grandfather, and whose
one Guard Band A Block license we repack into the reconfigured Guard Band A Block.
119. We conclude that the existing Guard Band B Block is no longer needed as a guard
band to protect the adjacent 700 MHz public safety users, and to the extent possible, should be
consolidated with the rest of the commercial spectrum for more efficient and effective use. As
noted above, Cyren Call filed a revised band plan, reflected in the July 6, 2007 Guard Bands
Proposal, in which Guard Band licensees would repack into a reconfigured Guard Band A Block
between two commercial blocks. We find that the public interest is best served by adoption of
features of the Cyren Call and July 6, 2007 proposals because it removes the “repacked” Guard
Band A Block from the critical juncture between the Upper 700 MHz D Block and the public
safety broadband spectrum, which together will be used as the foundation for the 700 MHz
Public/Private Partnership. We also find that the value of the spectrum rights to be relinquished
by Access Spectrum/Pegasus and the other Guard Bands licensees would substantially offset any
alleged “windfall” they might enjoy because of a more desirable spectral position in the band,
and less restrictive technical rules.279 The figure below depicts the revised Upper 700 MHz Band
Plan.
FIGURE 10: REVISED UPPER 700 MHZ BAND PLAN INCLUDING GUARD BANDS
757
763
775
787
793
Public Safety
C
CH. 60
746
A
CH. 61
752
D
G
Broadband B Narrowband
CH. 62
758
CH. 63
764
B
CH. 64
770
805
Public Safety
C
CH. 65
776
A
CH. 66
782
D
G
Broadband B Narrowband
CH. 67
788
CH. 68
794
CH. 69
800
120. Funding for Public Safety Reconfiguration. As the result of these changes to the
band plan, the Upper 700 MHz D Block now is immediately adjacent to the 700 MHz public
safety broadband spectrum. In the 700 MHz Further Notice, we anticipated that this adjacency
could facilitate the transition to wireless broadband for the 700 MHz public safety broadband
spectrum.280 We find that the consolidation of public safety broadband spectrum to the lower
portion of the 700 MHz Public Safety Band will provide significant benefits to the adjacent D
Block licensee. Without such consolidation, the D Block licensee would be adjacent to an
incompatible, narrowband system architecture, which could inhibit commercial broadband
279
MetroPCS contends that the additional flexibility and capabilities that would be afforded the Guard Bands
licensees under the alternative to the BOP (that were unavailable at auction) would create a “windfall” for the
incumbents. See MetroPCS 700 MHz Further Notice Comments at 24. Similarly, Cyren Call asserts that locating
the “new” A Block between public safety and commercial spectrum would force the commercial licensee to
purchase the A Block spectrum and result in an economic windfall to the A Block licensees. Cyren Call 700 MHz
Further Notice Comments at 32.
280
700 MHz Further Notice, 22 FCC Rcd at 8132 ¶ 185.
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system deployment. This is particularly critical to the D Block Licensee, which must construct a
shared network using both the D Block spectrum and the public safety broadband spectrum.
121. We note that the public safety community has long held that any reconfiguration
of the 700 MHz public safety spectrum must not come at their expense given their inability to
fund such a transition.281 By shifting funding responsibility to the adjacent D Block licensee, we
address this concern while assigning the expense to recognize the significant benefits that will
accrue to the D Block licensee. Accordingly, we conclude that the D Block licensee must pay
the costs of consolidating the 700 MHz public safety narrowband channels to the upper half of
the 700 MHz Public Safety Band. These costs and associated implementation issues are
discussed in further detail below.
122. License Modifications. The Commission may modify licenses where it
determines that the modification serves the public interest, convenience, and necessity.282 The
U.S. Court of Appeals for the District of Columbia Circuit has held that license modifications do
not have to be consensual283 and that license holders may be moved on a service-wide basis,
without license-by-license consideration.284 It has upheld license modifications that involve
relocating existing licensees to different spectrum, outside of the auction process. Specifically,
the court has found that the Commission may approve spectrum swaps between existing
licensees, without offering the swapped spectrum to alternative users.285
123. Pursuant to Section 316 of the Act, we find that the public interest, convenience,
and necessity will be served by relocating all existing Guard Band A Block licenses to the
reconfigured Guard Band A Block located at 757-758 MHz and 787-788 MHz.286 With the
281
See, e.g., NPSTC Reply Comments in WT Docket No. 96-86 at 7-12 (filed July 6, 2006); Letter from APCO,
International Association of Chiefs of Police, International Association of Fire Chiefs, Major Cities Chiefs
Association, Major Counties Sheriffs Association and National Sheriffs’ Association to Catherine Seidel, Acting
Chief, Wireless Bureau, FCC, Ex Parte in WT Docket No. 96-86 (filed July 31, 2006).
282
47 U.S.C. § 316(a)(1).
283
Peoples Broadcasting Co. v. United States, 209 F.2d 286, 288 (D.C. Cir. 1953) (upholding the Commission’s
authority to modify a television station license without an application by the licensee for such a modification, noting
that “if modification of licenses were entirely dependent upon the wishes of existing licensees, a large part of the
regulatory power of the Commission would be nullified”).
284
Community Television, Inc. v. FCC, 216 F.3d 1133, 1140 (D.C. Cir. 2000). In Community Television, the court
upheld the FCC’s rules establishing procedures and a timetable under which television broadcasting would migrate
from analog to digital technology.
285
See Rainbow Broadcasting v. FCC, 949 F.2d 405, 410 (D.C. Cir. 1991), in which the court held the Commission
had the authority to allow noncommercial and commercial television licensees to exchange channels without
exposing licensees to competing applications, despite third-party interest in acquiring the swapped licenses.
286
See 47 U.S.C. § 316(a)(1) ( “[a]ny station license . . . may be modified by the Commission . . . if in the judgment
of the Commission such action will promote the public interest, convenience and necessity”). The U.S. Court of
Appeals for the District of Columbia Circuit has held that “Section 316 grants the Commission broad power to
modify licenses; [and] the Commission need only find that the proposed modification serves the public interest,
convenience and necessity.” California Metro Mobile Communications v. FCC, 365 F.3d 38, 45 (D.C. Cir. 2004).
The court found that Section 316 is not unambiguous and therefore deferred to the Commission’s interpretation that
“section 316 contains no limitation on the time frame within which it may act to modify a license and that its action
under the section is not subject to the limitations on revocation, modification or reconsideration imposed by
[s]ection 405.” Id. at 45 (citations omitted). The court also found that the Commission’s modification served the
(continued….)
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exception of PTPMS II, which holds one A Block license and two B Block licenses, the license
modifications that we effect today are consensual. Specifically, in July 6 and 26, 2007 ex parte
letters, officers of Access Spectrum, Dominion 700, Pegasus, and Radiofone each agreed that the
licensees will not contest the modification of their licenses as described above.287
124. We find that modifying the 700 MHz Guard Bands licenses will serve the public
interest, convenience, and necessity in four respects. First, it will enable the downward spectrum
shift that protects public safety narrowband operations from interference in certain border areas.
Second, “repacking” the existing Guard Band A Block licenses between the Upper 700 MHz
Band C and D Blocks will avoid placing a potential obstacle between the two now-contiguous
spectrum blocks comprising the 700 MHz Public/Private Partnership. Third, we will realize
these benefits for public safety and the 700 MHz Public/Private Partnership with the least
disruption possible to the use of the Upper 700 MHz spectrum. Finally, the spectrum repacking
will provide an additional 2 megahertz of commercial spectrum for auction by reducing the
current Guard Band B Block from 4 to 2 megahertz.
125. These license modifications also are consistent with Sections 337 and 309 of the
Act, because the 4 megahertz of remaining Guard Bands spectrum remains commercial spectrum
subject to auction.288 Specifically, the 2 megahertz at 746-747 MHz and 776-777 MHz will be
added to, and auctioned as part of, the Upper 700 MHz Band C Block in the forthcoming 700
MHz Band auction. The lower portion of the reconfigured commercial Guard Band B Block at
775-776 MHz will provide a necessary guard band between public safety narrowband
communications and adjacent commercial services. The Commission will specify appropriate
uses of this spectrum, and the related portion of the B Block at 805-806 MHz, at a future date.
126. Spectrum Use Agreements. Access Spectrum states that, pursuant to existing
spectrum use agreements (SUAs), there are wireless systems currently operating in six of its
licensed Guard Band A Block markets (MEAs 20, 26, 32, 37, 44, and 52).289 Access Spectrum
intends to transition these systems to the relocated Guard Band A Block, and requests special
temporary authority (STA) for the current A Block in these MEAs to effect such a transition.290
In MEA 20 (Minnesota), Access Spectrum notes that it could take 12 months from release of this
Second Report and Order to transition a CII entity’s “complex system” to the relocated A
Block.291
(Continued from previous page)
public interest, even though the modification was based on potential rather than actual interference, and it caused a
minor disruption in CMMC’s operations. Id. at 46.
287
See Access Spectrum/Pegasus July 6, 2007 Ex Parte; Access Spectrum/Pegasus July 26, 2007 Ex Parte.
288
47 U.S.C. §§ 337, 309.
289
See Letter from Gunnar Halley, Counsel to Access Spectrum, LLC, to Marlene H. Dortch, Secretary, FCC, Ex
Parte in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 (filed July 24, 2007) (“Access Spectrum
July 24, 2007 Ex Parte”).
290
See Access Spectrum/Arcadian July 27, 2007 Ex Parte. Access initially requested primary authorization for
these markets until grant of the Upper 700 MHz C Block license, followed by secondary authorization through
February 17, 2009 (the DTV transition date). See Access Spectrum July 24, 2007 Ex Parte.
291
Id.
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127. We find that the public interest would be served by providing Access Spectrum a
reasonable period to transition systems in the six markets to the relocated Guard Band A Block.
Based on the record before us, it appears that 180 days (the maximum statutory period for an
STA) would provide Access Spectrum sufficient time to relocate systems in five of the six
MEAs.292 Accordingly, pursuant to Section 309(f) of the Act,293 we hereby grant Access
Spectrum 180-day special temporary authorizations for MEAs 20, 26, 32, 37, 44, and 52 for the
current Guard Band A Block (746-747 MHz, 776-777 MHz). We expect Access Spectrum to
make a concerted effort to relocate all systems during the 180-day period, including the CII
system in MEA 20. In the event that Access Spectrum cannot complete the transition of the CII
system during the 180-day period, it may seek an appropriate extension of the STA upon a
proper showing. Because we modify (repack and relocate) the Guard Band A Block MEA
licenses held by Access Spectrum, Pegasus, and Dominion upon the effective date of this Second
Report and Order, the six STA grants to Access Spectrum will be granted upon the effective date
as well. We address the disposition of the one remaining Guard Band A Block license, which is
held by PTPMS II, below.
128. PTPMS II. In the 700 MHz Further Notice, we tentatively concluded not to adopt
the Access Spectrum/Pegasus repacking proposal absent unanimity among all Guard Band
licensees.294 All of the Guard Band licensees have agreed to repacking except PTPMS II, which
prefers to maintain the current position of its licenses.295 Based on the record before us and for
the reasons stated above, however, we are convinced that the public interest is better served if we
adopt a band plan that accounts for the single licensee that has not voluntarily agreed to spectrum
repacking.
129. In the 700 MHz Further Notice, we sought comment on grandfathering the
incumbent Guard Band B Block licensees, including whether to permit operations under the
current technical rules.296 PTPMS II holds one Guard Band A Block license in Buffalo (MEA
003) and B Block licenses in Des Moines – Quad Cities (MEA 021) and El Paso – Albuquerque
(MEA 039), but did not join the repacking agreement. To maintain a consistent band plan within
the United States that protects reconfigured public safety narrowband operations from
interference, we find that the public interest, convenience, and necessity will be served by
modifying the PTPMS II licenses by shifting its Guard Band A Block license to the reconfigured
A Block in the same geographic service area, and shifting its B Block licenses downward
1 megahertz.
292
Access Spectrum states that it does not intend to renew the SUAs for MEA 52 (Gulf of Mexico) and MEA 32
(Dallas), which expire April 16 and August 31, 2008, respectively, at their current spectral locations, and that it will
expeditiously relocate “relatively modest” systems in MEA 26 (Memphis), MEA 37 (Oklahoma City), and MEA 44
(where its customer operates a system in the Las Vegas area) once the associated equipment has been authorized for
use by the Commission. Access Spectrum July 24, 2007 Ex Parte at 1-2.
293
47 U.S.C. § 309(f).
294
See 700 MHz Further Notice, 22 FCC Rcd at 8137 ¶ 199.
295
See Access Spectrum/Pegasus Reply Comments in WT Docket No. 06-169 at 8.
296
See 700 MHz Further Notice, 22 FCC Rcd at 8132-33 ¶ 186.
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130. On July 6, 2007, PTPMS II filed an ex parte in which it generally argued that
modification of its licenses would be contrary to the public interest.297 Among other things,
PTPMS II argued that “[t]he record is not clear that there are demonstrable public interest
benefits that would flow from” modification of its licenses.298 We disagree. The protection of
public safety is at the core of the Commission’s public interest obligations.299 The band plan that
we are implementing today will enable the downward 1-megahertz band shift necessary to
prevent interference to vital public safety communications in border areas. If we do not modify
the PTPMS II licenses, the 1-megahertz spectrum shift that solves interference problems for
reconfigured public safety narrowband operations in the border areas cannot be accomplished.
Moreover, if PTPMS II’s B Block licenses were to remain in their current spectral location, their
resulting overlap of public safety spectrum would create interference between the services.300 In
addition, if the Guard Band A Block license in Buffalo does not move from 746-747 MHz and
775-776 MHz, a uniform shift of the Upper 700 MHz band plan cannot occur, frustrating what
we have determined to be the optimal band plan for the Upper 700 MHz Band.
131. To ensure that critical interoperable public safety communications are uniform
throughout the continental United States, we hereby modify PTPMS II’s Guard Band A Block
license in Buffalo (MEA 003), pursuant to Sections 316, 303, 301, and 4(i) of the Act,301 to
operate in the same geographic area but in the reconfigured A Block at 757-758 MHz and 787788 MHz. We also modify PTPMS II’s B Block licenses in Des Moines – Quad Cities (MEA
021) and El Paso – Albuquerque (MEA 039) by shifting them down by 1 megahertz, so that
PTPMS II is authorized to operate at 761-763 MHz and 791-793 MHz. These modifications will
not burden PTPMS II because it will continue to have access to the same amount and quality of
spectrum, and the move within the band will not require any modification of deployed
equipment, since PTPMS II does not have any operations associated with the three licenses.302
132. As a result of the foregoing modifications, the new nationwide Upper 700 MHz
Band D Block license, at 758-763 MHz and 788-793 MHz, will be authorized in Des Moines –
Quad Cities (MEA 021) and El Paso – Albuquerque (MEA 039) on a secondary basis to PTPMS
II. As such, the D Block licensee may not cause interference to primary operations of PTPMS II
or claim protection from harmful interference from any operations of PTPMS II in those
MEAs.303 The D Block licensee must cease operations on the spectrum assigned to PTPMS II in
these two markets if it poses an interference problem to PTPMS II. In the event that PTPMS II,
or a successor or an assign of PTPMS II, elects to cancel either of its grandfathered licenses, or if
either license cancels automatically, or is terminated by the Commission, then the licensed
297
See PTPMS II July 6, 2007 Ex Parte at 2.
298
Id. at 3-4.
299
See Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, Report and Order,
19 FCC Rcd 14969, 14971 ¶ 1 (2004) (“800 MHz Report and Order”).
300
See 700 MHz Further Notice, 22 FCC Rcd at 8137 ¶ 199.
301
47 U.S.C §§ 316, 303, 301, 154(i).
302
See PTPMS II Guard Band Manager’s Annual Report, available at
http://wireless.fcc.gov/services/index.htm?job=guardband_reports&id=700_guard.
303
47 C.F.R. § 2.105(c)(2).
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geographic area will revert, without further action by the Commission, to the D Block licensee.
This reversionary interest will include the right to operate under the technical rules consistent
with those that apply to the remainder of the D Block license.
133. However, as explained elsewhere in this Second Report and Order, we do not
believe it is in the public interest to permit these two grandfathered licenses to operate
indefinitely under a technical regime that is potentially incompatible with the D Block or the
adjacent Public Safety Broadband Licensee. Nor do we find that the public interest would be
served by permitting PTPMS II to operate indefinitely within the D Block, and thus impede the
provision of broadband public safety operations in the populous Des Moines – Quad Cities
(MEA 021) and El Paso – Albuquerque (MEA 039) markets to the detriment of the American
public. We therefore grandfather PTPMS II’s two B Block licenses without any renewal
expectancy, and do not extend the term of its licenses as we have for the D Block (discussed
below). We will afford PTPMS II’s Guard Band A Block license the modified (less stringent)
technical rules that we adopt below for all other Guard Band A Block licenses.
134. Accordingly, pursuant to Section 316 of the Act and Section 1.87 of the
Commission’s rules,304 PTPMS II has 30 days from the effective date of this Second Report and
Order to protest the foregoing license modifications. Consistent with the July 6 and 26, 2007 Ex
Partes, no protest rights will be afforded to any other Guard Band licensee.305
(b)
Broadband Optimization Plan (BOP), Critical
Infrastructure Industries (CII) and Ericsson
Proposals
135. Background. In Section 337(a) of the Act, Congress mandated that the
Commission allocate “spectrum between 746 MHz and 806 MHz, inclusive” (i.e., the Upper
700 MHz Band) by designating 24 megahertz of the spectrum “for public safety services” and 36
megahertz “for commercial use to be assigned by competitive bidding pursuant to Section
309(j).”306 As directed by Congress, the Commission allocated 24 megahertz of this spectrum for
public safety use at 764-776 MHz and 794-806 MHz and 36 megahertz of this spectrum for
304
47 U.S.C. § 316; 47 C.F.R. § 1.87.
305
See Access Spectrum/Pegasus July 6, 2007 Ex Parte; Access Spectrum/Pegasus July 26, 2007 Ex Parte.
306
47 U.S.C. § 337(a), as enacted by the Balanced Budget Act of 1997, Pub. L. No. 105-33, Title III, 111 Stat. 251
(1997). Section 337(a) provides in pertinent part:
(a) . . . the Commission shall allocate the electromagnetic spectrum between 746 megahertz and 806 megahertz,
inclusive, as follows:
(1) 24 megahertz of that spectrum for public safety services according to the terms and conditions
established by the Commission, in consultation with the Secretary of Commerce and the Attorney General;
and
(2) 36 megahertz of that spectrum for commercial use to be assigned by competitive bidding pursuant to
Section 309(j).
Congress also established a deadline of January 1, 1998 for this allocation, as well as a deadline of September 30,
1998 for assignment of the public safety licenses. See 47 U.S.C. § 337(b). On December 31, 1997, the Commission
released an Order fulfilling Congress’ allocation directive. See Reallocation of Television Channels 60-69, the 746806 MHz Band, ET Docket No. 97-157, Report and Order, 12 FCC Rcd 22953, 22962 ¶ 17 (1998).
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commercial use at 746-764 MHz and 776-794 MHz.307 In deciding whether or not to allow
commercial operations inside the Guard Bands, the Commission concluded that it was
constrained by Congress’ clear mandate to allocate, and thus auction, a full 36 megahertz of
commercial spectrum in the Upper 700 MHz Band.308 If the Commission had decided to prohibit
operations inside the Guard Bands, it would have fallen 6 megahertz short of fulfilling the
explicit allocation requirement in Section 337(a).309 In light of this statutory mandate, we
tentatively concluded in the Further Notice that the Commission should not adopt the BOP, or
other proposals to the extent that they propose a reallocation of commercial spectrum for public
safety use, or the reassignment of this spectrum outside of the competitive bidding process.310
We also tentatively concluded that even if the Commission possessed legal authority to adopt the
BOP, Ericsson, or CII proposals, they would not be in the public interest.311
136. Discussion. For the reasons discussed in the 700 MHz Further Notice, we adopt
our tentative conclusion that we cannot adopt the BOP, Ericsson, or CII proposals. First, we find
that Congress’s express instructions in Section 337 regarding our allocation of commercial and
public safety spectrum in the 700 MHz Band statutorily prohibit the Commission from
reallocating the spectrum at this time, and therefore we cannot reallocate commercial spectrum
for public safety as contemplated by the BOP and Ericsson proposals. Even if Section 337(a)
does not establish a permanent legislative bar on reallocating the Upper 700 MHz Band, we
nevertheless conclude that it would be contrary to Congress’ intent in enacting Section 337 to
consider modifying the commercial and public safety allocations in the band at this time, before
the licensees have had a meaningful opportunity to use unencumbered spectrum as initially
envisioned (an opportunity that is unlikely to be fully available before the end of the DTV
transition in 2009).312
137. Similarly, because Section 337 requires us to use a competitive bidding process to
assign spectrum that has been allocated for commercial use, we must also deny the BOP’s
proposal to reassign 1 megahertz from the Guard Band B Block to the current Guard Band
A Block licensees, and the CII proposals to award Guard Band B Block licenses within our
inventory to their constituents outside of competitive bidding. As noted above, Section
337(a)(2) prescribes competitive bidding as the method of assigning commercial spectrum in the
Upper 700 MHz Band.313 For the same reasons that we cannot reallocate the band at this time,
we also conclude that we cannot alter the method of assignment at this time, and thus on this
307
Reallocation of Television Channels 60-69, the 746-806 MHz Band, ET Docket No. 97-157, Report and Order,
12 FCC Rcd 22953 (1997). The commercial portion at 746-764 MHz and 776-794 MHz includes the two blocks of
paired Guard Bands spectrum at 746-747 MHz and 776-777 MHz, and 762-764 MHz and 792-794 MHz.
308
See Upper 700 MHz Second Report and Order, 15 FCC Rcd at 5316-19 ¶¶ 36-40.
309
Id.
310
700 MHz Further Notice, 22 FCC Rcd at 8147 ¶ 227.
311
Id. The Commission added that the BOP could also result in interference between 700 MHz Band public safety
and commercial operations. Id.
312
If, in contrast, these proponents’ reading of Section 337 is incorrect, and the statutory language in fact requires
the Commission to maintain the specified 24/36 megahertz allocations in perpetuity (barring future legislative
action), the result would be the same: the statute would prohibit us from altering these allocations at this time.
313
47 U.S.C. § 337(a)(2).
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basis also we must deny the BOP and CII proposals. We note that the proposal adopted by the
Commission today does not possess the same legal infirmity because it does not involve the
assignment of spectrum from the Commission’s auction inventory outside of the competitive
bidding process.
138. With respect to the BOP, even if we had legal authority to assign additional
spectrum to the current Guard Band A Block licensees without competitive bidding, we conclude
that the proposals for assigning commercial spectrum licenses in this manner would not serve the
public interest. Under the BOP, the Guard Band A Block licensees would receive an additional 1
megahertz of spectrum outside of the auctions process. Given that we lack authority to assign
additional Upper 700 MHz Band spectrum to public safety as contemplated by the BOP, there is
no unique or compelling reason in the record to award the BOP proponents additional
commercial spectrum in the 700 MHz Band outside of the competitive bidding process.
Moreover, we believe that any residual benefits associated with the BOP plan are not unique to
the BOP and can be achieved through the Commission’s established spectrum management
mechanisms. Similarly, we find that the CII proposals would not serve the public interest
because they include an assignment of commercial spectrum to licensees outside of the
competitive bidding process.314 Although we recognize the potential for CII entities to engage in
life-critical communications, we do not find a sufficient public interest rationale for creating any
exception in the 700 MHz Band from the current, established practice of subjecting CII to
competitive bidding for spectrum that serves their commercial infrastructures.
139. Finally, we conclude that the additional Ericsson band plan proposal is not in the
public interest. We believe that the band plan we are adopting today better addresses the need
for the establishment of a large, continuous block of paired 11-megahertz spectrum, as compared
to the Ericsson proposal. We believe that retaining the B Block and merely moving its location
is not the most efficient use of spectrum, given our finding that the B Block at its current location
is no longer necessary as a guard band and should be subsumed into the 700 MHz Band
commercial spectrum to be auctioned.
2.
Service Rules
a.
Commercial Services (Excluding Guard Bands and Upper 700
MHz D Block)
(i)
Performance Requirements
140. Background. The Commission first adopted performance requirements for the
commercial services in the Upper 700 MHz Band, and then subsequently followed with similar
rules for the Lower 700 MHz Band. In the Upper 700 MHz First Report and Order, the
Commission required that licensees in the 746-764 and 776-794 MHz Bands provide “substantial
service,” as outlined in Section 27.14(a) of its rules.315 These rules require licensees to provide
“substantial service” within ten years of license issuance.316 The Upper 700 MHz First Report
314
As we expressed in the 700 MHz Further Notice, CII entities are eligible to participate in future auctions for
spectrum in the 700 MHz Band. See 700 MHz Further Notice, 22 FCC Rcd at 8149 ¶ 233 n.491.
315
Upper 700 MHz First Report and Order, 15 FCC Rcd at 505-506 ¶¶ 70-72.
316
47 C.F.R. § 27.14(a). This section defines “substantial service” as “service which is sound, favorable, and
substantially above a level of mediocre service which just might minimally warrant renewal.” Id.
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and Order also established safe harbors for licensees with regard to the substantial service
requirement. Specifically, a licensee would be considered to be providing “substantial service”
in the licensed service area if it constructs four permanent links per one million people (when
fixed, point-to-point service is offered) or if it demonstrates coverage of 20 percent of the
population (when the licensee offers either mobile services or fixed, point-to-point service).317
For the Lower 700 MHz Band, the Commission also adopted the substantial service standard
with the same safe harbors in the Lower 700 MHz Report and Order.318 In addition, in the Rural
Report and Order, the Commission established a safe harbor for substantial service related to the
provision of mobile telephony service in rural areas. In that Order, the Commission stated that a
licensee providing mobile service in certain bands, including the 700 MHz Band, “will be
deemed to have met the substantial service requirement if it provides coverage to at least 75
percent of the geographic areas of at least 20 percent of the ‘rural areas’ within its licensed
area.”319 As with all Wireless Radio Service licenses, failure to meet the specified performance
requirements under the particular license authorization within the required period results in
automatic license termination.320
141. 700 MHz Commercial Services Notice. In 2006, in the 700 MHz Commercial
Services Notice, we sought comment on whether we should revise these existing performance
requirements, or adopt alternative build-out rules, for licenses in the 700 MHz Band that have
not been auctioned in order to promote access to spectrum and the provision of service to
consumers.321 In particular, we asked for comment on the effectiveness of the existing
substantial service standard and safe harbors and whether changes or revisions should be adopted
to better promote service, especially in rural areas.322 The 700 MHz Commercial Services Notice
also asked commenters to address whether the Commission should adopt alternative performance
requirements, such as benchmarks based on the population or geographic area within a license
area, instead of the substantial service standard.323 In addition, we asked for comment on
whether our performance requirements should include a “keep-what-you-use” rule similar to that
applied to cellular service in the 1980s, or a slightly modified version called “triggered keepwhat-you-use.”324
142. In response to the 700 MHz Commercial Services Notice, commenters offered a
variety of arguments on the issue of performance requirements. Most of the parties that
commented on this issue opposed replacing the substantial service standard with a stricter
performance requirement. These parties included a mix of large, medium, and small CMRS
317
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 505 ¶ 70.
318
See Lower 700 MHz Report and Order, 17 FCC Rcd at 1079 ¶¶ 149-151.
319
Rural Report and Order, 19 FCC Rcd at 19123 ¶ 79.
320
47 C.F.R. § 1.946(c).
321
700 MHz Commercial Services Notice, 21 FCC Rcd at 9373-76 ¶¶ 60-69.
322
Id. at ¶ 62-63.
323
Id. at ¶ 64-66.
324
Id. at ¶ 67-69.
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providers, as well as two providers of broadband technology.325 On the other hand, a number of
other parties strongly supported a “keep-what-you-use” approach, including rural CMRS
providers, a tribal government, and a coalition of state government agencies.326 In addition, some
commenters argued in favor of construction benchmarks based on the population or geographic
area served, and some of these parties also recommended a combination of both benchmarks and
a “keep-what-you-use” approach.327 For example, RCA recommended a combination of both
geographic benchmarks and a “keep-what-you-use” rule.328 A related proposal by the Vermont
Department of Public Service et al. included a combination of population or geographic
benchmarks and a “keep-what-you-use” rule.329 Other commenters argued that the Commission
should allow third parties to access the unused portions of a licensee’s spectrum on a noninterfering basis.330 These commenters referred to the TV White Spaces Report and Order,331 in
which the Commission allowed for unlicensed use of spectrum in the core TV broadcast bands,
325
See, e.g., AT&T 700 MHz Commercial Services Notice Comments at 12-16; AT&T 700 MHz Commercial
Services Notice Reply Comments at 21-24; CTIA 700 MHz Commercial Services Notice Comments at 7-16;
Cingular 700 MHz Commercial Services Notice Comments at 9-13; Corr 700 MHz Commercial Services Notice
Comments at 5-8; Dobson 700 MHz Commercial Services Notice Comments at 5-10; Leap 700 MHz Commercial
Services Notice Comments at 9-10; Leap 700 MHz Commercial Services Notice Reply Comments at 5-6; MetroPCS
700 MHz Commercial Services Notice Comments at 15-16; MetroPCS 700 MHz Commercial Services Notice Reply
Comments at 10-12; MilkyWay 700 MHz Commercial Services Notice Comments at 7-9; NextWave 700 MHz
Commercial Services Notice Reply Comments at 14; Qualcomm 700 MHz Commercial Services Notice Comments
at 19; Union Telephone 700 MHz Commercial Services Notice Comments at 5-6; U.S. Cellular 700 MHz
Commercial Services Notice Comments at 12-16; U.S. Cellular 700 MHz Commercial Services Notice Reply
Comments at 11-16; Verizon Wireless 700 MHz Commercial Services Notice Comments at 6-9.
326
See, e.g., Howard/Javed 700 MHz Commercial Services Notice Comments at 24-26; Navajo Nation 700 MHz
Commercial Services Notice Comments at 2-3; OPASTCO 700 MHz Commercial Services Notice Comments at 5-6;
RCA 700 MHz Commercial Services Notice Comments at 8-10; RCA 700 MHz Commercial Services Notice Reply
Comments at 4-7; RTG 700 MHz Commercial Services Notice Comments at 8-9; Vermont Department of Public
Service et al. 700 MHz Commercial Services Notice Comments at 5-10; Vermont Department of Public Service et
al. 700 MHz Commercial Services Notice Reply Comments at 4-7.
327
See, e.g., DIRECTV/EchoStar 700 MHz Commercial Services Notice Comments at 9; Navajo Nation 700 MHz
Commercial Services Notice Comments at 2-3; RCA 700 MHz Commercial Services Notice Comments at 8-10;
RCA 700 MHz Commercial Services Notice Reply Comments at 4-7; Vermont Department of Public Service, et al.
700 MHz Commercial Services Notice Comments at 5-8. The Navajo Nation, RCA, and the Vermont Department of
Public Service, et al. favorably discuss both benchmarks and a “keep-what-you-use” approach.
328
See RCA 700 MHz Commercial Services Notice Comments at 8-10; RCA 700 MHz Commercial Services Notice
Reply Comments at 4-8.
329
See Vermont Department of Public Service, et al. 700 MHz Commercial Services Notice Comments at 5-8.
330
See, e.g., Howard/Javed 700 MHz Commercial Services Notice Comments at 31-37; NextWave 700 MHz
Commercial Services Notice Reply Comments in WT Docket No. 06-150 at 9-12 (supporting rules allowing
unlicensed use on a secondary basis); Tropos Comments in WT Docket No. 06-150 at 9-11 (recommending bands
designated for unlicensed use).
331
Unlicensed Operation in the TV Broadcast Bands, Additional Spectrum for Unlicensed Devices Below 900 MHz
and in the 3 GHz Band, ET Docket No. 04-186, First Report and Order and Further Notice of Proposed
Rulemaking, 21 FCC Rcd 12266 (2006) (TV White Spaces Report and Order).
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and they argued that the Commission also should allow such use in the 700 MHz Band.332 Other
commenters specifically opposed permitting this type of unlicensed use in the 700 MHz Band.333
143. 700 MHz Further Notice. More recently, in the 700 MHz Further Notice, we
sought comment on the performance requirements for commercial licensees in the 700 MHz
Band and asked commenters to address specific approaches.334 As a basis for consideration of
this issue, we asked for comment on our proposal to adopt a modified version of a
recommendation by RCA, which would apply both performance requirements based on
geographic benchmarks and a “keep-what-you-use” rule.335 We proposed that licensees be
required to provide service that covers 25 percent of the geographic area of the license area
within three years, 50 percent of the area within five years, and 75 percent of the area within
eight years.336 We further proposed that, in applying such a geographic benchmark, we would
consider the relevant service area to exclude all government land.337
144. We also asked commenters to address the potential consequences for licensees
that fail to meet their interim and end-of-term build-out requirements.338 We observed that the
consequences for failure to meet an interim benchmark could include a reduction in the length of
the license term.339 In addition, we sought comment on RCA’s recommendation that licensees
that fail to meet an interim benchmark face a “proportionate” application of the “keep-what-youuse” rule, in which a license area would be reduced sufficiently to create a resulting license in
which the licensee meets the relevant benchmark.340 With regard to end-of-term build-out
requirements, we sought comment on whether we should apply a “keep-what-you-use” rule.341
We specifically asked that commenters address how the Commission might apply such a rule.342
We noted that the Commission could apply a “keep-what-you-use” rule regardless of the level of
construction by the licensee, or it could apply such a rule only in the event a licensee failed to
meet a specific coverage requirement.343
145. We also proposed to apply performance requirements only on an EA or CMA
basis and sought comment on this approach. We noted that this proposal would require REAG
licensees to meet the service benchmarks on an EA basis, and that failure to do so in a particular
332
See Howard/Javed 700 MHz Commercial Services Notice Comments at 31-37; NextWave 700 MHz Commercial
Services Notice Reply Comments at 9-12.
333
See CTIA 700 MHz Commercial Services Notice Reply Comments at 11.
334
See 700 MHz Further Notice, 22 FCC Rcd at 8140-43 ¶¶ 207-220.
335
See 700 MHz Further Notice, 22 FCC Rcd at 8142 ¶ 212.
336
See id.
337
See 700 MHz Further Notice, 22 FCC Rcd at 8142 ¶ 213.
338
Id. at 8142-43 ¶¶ 214-15.
339
Id. at 8142 ¶ 214.
340
Id.
341
Id. at 8142 ¶ 215.
342
Id. at 8142-43 ¶ 215.
343
See 700 MHz Further Notice, 22 FCC Rcd at 8142 ¶ 214.
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EA would result in a loss of a portion of the geographic area in that EA.344 Finally, we asked for
comment on any other proposal that would apply build-out requirements that would be more
stringent than the current substantial service standard. In particular, we asked if population
benchmarks should be used instead of geographic benchmarks.345
146. In response to the 700 MHz Further Notice, commenters take a variety of
positions with regard to performance requirements. A broad mix of commenters urge the
Commission to continue to utilize its substantial service criteria.346 This mix of commenters
includes nationwide, regional, and small and rural service providers,347 industry trade groups,348
and potential new entrants.349 These commenters contend that a substantial service rule is
consistent with prior Commission pronouncements, promotes flexibility, relies on market forces,
and that there has been no showing of a problem related to lack of construction or spectrum
warehousing that would necessitate more stringent performance criteria. Leap observes that the
Commission previously has determined that a substantial service standard has important
advantages, such as allowing the Commission to take into consideration the provision of service
to rural areas, niche markets, or discrete populations.350 Similarly, Union notes that the
Commission previously has stated that a substantial service standard provides flexibility for rural
providers to tailor business plans for their unique and sparsely populated markets.351
147. Other commenters assert that the Commission should impose either a populationor geographic-based build-out requirement, and that this requirement also should include some
form of interim benchmarks.352 Parties favoring the use of population-based performance
344
See 700 MHz Further Notice, 22 FCC Rcd at 8143 ¶ 217.
345
See 700 MHz Further Notice, 22 FCC Rcd at 8143 ¶ 220.
346
See, e.g., 4G Coalition 700 MHz Further Notice Comments at 12-20; AT&T 700 MHz Further Notice Comments
at 14-17; Blooston 700 MHz Further Notice Comments at 7-9; Council Tree 700 MHz Further Notice Comments at
12-15; CTIA 700 MHz Further Notice Comments at 3-10; Dobson 700 MHz Further Notice Comments at 3; Leap
700 MHz Further Notice Comments at 5-7; McBride 700 MHz Further Notice Comments at 16-17; MetroPCS 700
MHz Further Notice Comments at 29-38; RTG 700 MHz Further Notice Comments at 8-12; SpectrumCo 700 MHz
Further Notice Comments at 20-30; TIA 700 MHz Further Notice Comments at 7-8; Union 700 MHz Further
Notice Comments at 8; USCC 700 MHz Further Notice Comments at 14-19; Verizon Wireless 700 MHz Further
Notice Comments at 19-31.
347
See Blooston 700 MHz Further Notice Comments at 7-9; Dobson 700 MHz Further Notice Comments at 3-6;
Leap 700 MHz Further Notice Comments at 5-7; Union 700 MHz Further Notice Comments at 10; AT&T 700 MHz
Further Notice Comments at 15; U.S. Cellular 700 MHz Further Notice Comments at 14-19; Verizon Wireless 700
MHz Further Notice Comments at 28-30.
348
See CTIA 700 MHz Further Notice Comments at 10; TIA 700 MHz Further Notice Comments at 7-8.
349
See 4G Coalition 700 MHz Further Notice Comments at 12-14, 16-18; SpectrumCo 700 MHz Further Notice
Comments at 21-24.
350
See Leap 700 MHz Further Notice Comments at 6.
351
See Union 700 MHz Further Notice Comments at 8.
352
See, e.g., 700 MHz Independents 700 MHz Further Notice Comments at 8-10; Aloha 700 MHz Further Notice
Comments at 3-4; CCIA 700 MHz Further Notice Comments at 4; Cellular South 700 MHz Further Notice
Comments at 3-5; Embarq 700 MHz Further Notice Comments at 5; Frontier 700 MHz Further Notice Comments at
10-12; RCA 700 MHz Further Notice Comments at 11; RTG 700 MHz Further Notice Comments at 8-12; WISPA
700 MHz Further Notice Comments at 12-14; see also RCA 700 MHz Further Notice Reply Comments at 1-11.
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requirements for commercial licenses include a couple of nationwide service providers,353 a
provider of wireless services in rural and suburban areas,354 and an equipment provider.355 For
example, AT&T argues that, to the extent it decides to adopt a build-out rule that is more specific
than substantial service, the Commission should adopt population-based benchmarks that would
be like those applied to initial PCS licenses.356 Verizon Wireless argues that, to the extent it
decides to adopt stricter build-out rules, the Commission should adopt population-based
benchmarks that require coverage of 50 percent of the population within five years and 75
percent of the population within ten years.357 Dobson recommends that the Commission apply a
benchmark for REAG licenses that is based on population, not geography.358
148. Parties favoring geographic-based performance requirements include regional
service providers,359 industry trade groups representing rural service providers,360 an organization
dedicated to improving 911 service,361 and a coalition of state agencies.362 These commenters
maintain that the existing substantial service standard is inadequate and does not promote service
in rural areas, and that it does not further other Commission goals. RCA and RTG argue that the
superior propagation characteristics of the 700 MHz Band make this spectrum especially
susceptible to spectrum warehousing, and it concludes that stricter build-out requirements are an
appropriate remedy.363 Similarly, Vermont Department of Public Service et al. states that, if the
Commission adopts its proposed geographic benchmarks, this will “benefit the public by setting
an expectation that licensees will provide service widely throughout the license area, including in
more rural areas.”364
149. Some commenters that support either population- or geographic-based
construction benchmarks also support the adoption of a “keep-what-you-use” rule.365 These
353
See AT&T 700 MHz Further Notice Comments at 19-20; Verizon Wireless 700 MHz Further Notice Comments
at 28-30, Attach. A at 4-5, 7.
354
See Dobson 700 MHz Further Notice Comments 6-7.
355
See Motorola 700 MHz Further Notice Comments at 34.
356
See AT&T 700 MHz Further Notice Comments at 19-20.
357
See Verizon Wireless 700 MHz Further Notice Comments at 28-29.
358
See Dobson 700 MHz Further Notice Comments 6-7.
359
See Cellular South 700 MHz Further Notice Comments at 3-8.
360
See RCA 700 MHz Further Notice Reply Comments at 7-8, RTG 700 MHz Further Notice Reply Comments at
8-10.
361
See NENA 700 MHz Further Notice Reply Comments at 3.
362
See Vermont Department of Public Service et al. 700 MHz Further Notice Reply Comments at 1-3.
363
See RCA 700 MHz Further Notice Comments at 7-8; RTG 700 MHz Further Notice Comments at 9-12; RCA
700 MHz Further Notice Reply Comments at 7-8, 11; RTG 700 MHz Further Notice Reply Comments at 8.
364
See Vermont Department of Public Service et al. 700 MHz Further Notice Reply Comments at 1-2.
365
See, e.g., 700 MHz Independents 700 MHz Further Notice Comments at 8-10 (support adoption of rules similar
to those used for licensing unserved cellular areas); PISC 700 MHz Further Notice Comments at 37 (agrees with the
general proposal that licensees should be subject to a “use-or-lose” license condition); Aloha 700 MHz Further
Notice Comments at 4 (supports the general “keep-what-you-use” proposal set forth in the 700 MHz Further
Notice); Blooston 700 MHz Further Notice Comments at 7-8 (Commission should exempt CMA licenses from
(continued….)
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parties state that this approach is pro-competitive, because it allows new providers to acquire
unused spectrum, and equitable, because licensees only lose the unused portions of their license
area. Those who oppose a “keep-what-you-use” rule argue that such provisions will lead to
uneconomic build-out, promote “greenmail,” and chill secondary markets.366 A few commenters
argue that, rather than reclaim spectrum, the Commission should designate unserved areas as
“vacant channels” that would be usable by unlicensed devices.367
150. In addition, some commenters support the use of the specific interim geographic
benchmarks that were proposed in the 700 MHz Further Notice. For example, RCA specifically
favors the application of the proposed performance requirements to all 700 MHz Band licenses
to be auctioned.368 Similarly, Vermont Department of Public Service et al. recommend the same
mix of strict geographic-based benchmarks.369
151. Other commenters expressed concern about the specific interim geographic
benchmarks that were proposed in the 700 MHz Further Notice. If the Commission adopts
geographic benchmarks, these parties argue that either any interim benchmark should be longer
than three years or a three-year interim benchmark should not apply to rural areas.370 Blooston
states that the Commission should not apply geographic benchmarks or a “keep-what-you-use”
(Continued from previous page)
“keep-what-you-use” performance criteria); CCIA 700 MHz Further Notice Comments at 4 (urges the Commission
to adopt “keep-what-you-use”); Cellular South 700 MHz Further Notice Comments at 6 (supports RCA’s
proportionate “keep-what-you-use” approach); Dobson 700 MHz Further Notice Comments at 6-7 (supports use of
“keep what you use” relicensing for small-sized service areas only); RCA 700 MHz Further Notice Comments at 78; RTG 700 MHz Further Notice Comments at 5-7, 9 (supports cellular “keep-what-you-use” procedures); Verizon
Wireless 700 MHz Further Notice Comments at 19-31; Vermont Department of Public Service et al. 700 MHz
Further Notice Reply Comments at 1-3.
366
See, e.g., AT&T 700 MHz Further Notice Comments at 14-17 (“keep-what-you-use” re-licensing approach is
inconsistent with long-standing Commission policy); CTIA 700 MHz Further Notice Comments at 10 (Commission
should establish performance requirements similar to AWS performance requirements); Leap 700 MHz Further
Notice Comments at 6 (“keep-what-you-use” could have particularly unfortunate consequences); MetroPCS 700
MHz Further Notice Comments at 30 (“keep-what-you-use” mechanisms are particularly burdensome for smaller
and regional carriers); Motorola 700 MHz Further Notice Comments at 36 (“keep-what-you-use” creates
uncertainty, may chill the auction process, and is not necessary given the competitive nature of the commercial
market); SpectrumCo 700 MHz Further Notice Comments at 20-30 (Commission should not adopt either of the
“keep what you use” policy proposals described in the 700 MHz Further Notice); TIA 700 MHz Further Notice
Comments at 7-8 (Commission should apply the same construction obligations that it has applied in the broadband
PCS context); Union 700 MHz Further Notice Comments at 9 (opposes re-licensing mechanism to reclaim
spectrum); USCC 700 MHz Further Notice Comments at 17-18 (“keep-what-you-use” requirement will create
powerful regulatory incentives to engage in economically irrational behavior); WISPA 700 MHz Further Notice
Comments at 12-14 (a licensee that fails to meet the applicable benchmarks should not automatically have its license
area reduced, but should face a higher level of scrutiny at the end of its license term).
367
See, e.g., PISC 700 MHz Further Notice Comments at 37; Google 700 MHz Further Notice Comments at 9.
368
See RCA 700 MHz Further Notice Comments at 5.
369
See Vermont Department of Public Service et al. 700 MHz Further Notice Reply Comments at 1-3.
370
See, e.g., 4G Coalition 700 MHz Further Notice Comments at 12-20; 700 MHz Independents 700 MHz Further
Notice Comments at 8-10; Aloha 700 MHz Further Notice Comments at 3-4; Dobson 700 MHz Further Notice
Comments at 3; Frontier 700 MHz Further Notice Comments at 10-12; RTG 700 MHz Further Notice Comments at
8-12; Union 700 MHz Further Notice Comments at 8; Verizon Wireless 700 MHz Further Notice Comments at 1931; WISPA 700 MHz Further Notice Comments at 12-14.
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rule to rural areas, and that if a “keep-what-you-use” rule is adopted, licenses based on CMAs
should be exempt.371 Other commenters recommend that the Commission exempt RSA-based
licenses from any interim build-out requirements.372 In contrast, Dobson argues that strict
geographic-based build-out requirements should apply only to licenses based on CMAs and EAs,
not those based on REAGs.373 Other commenters opposed to a three-year interim benchmark
note that such an approach does not account for high start-up costs or the time needed to develop
new technologies, and that it hurts new entrants. For example, the 4G Coalition maintains that
obligations and timelines such as those proposed by RCA “would dissuade, if not outright
foreclose, a nationwide new entrant business plan.”374
152. Finally, some smaller service providers, as well as a regional service provider,
support the Commission’s proposal to require REAG licensees to meet build-out requirements on
an EA basis.375 Other commenters argue that build-out for REAG licenses should be evaluated
under the existing substantial service standard or the existing substantial service standard should
be applied on an EA basis.376
153. Discussion. In order to better promote access to spectrum and the provision of
service, especially in rural areas, we replace the current “substantial service” requirements for
the 700 MHz Band licenses that have not been auctioned with significantly more stringent
performance requirements. These include the use of interim and end-of-term benchmarks, with
geographic area benchmarks for licenses based on CMAs and EAs, and population benchmarks
for licenses based on REAGs. Licensees must meet the interim requirement within four years of
the end of the DTV transition (i.e., February 17, 2013).377 Failure to meet the interim
requirement will result in a two-year reduction in license term, 378 as well as possible enforcement
action, including forfeitures. We also reserve the right for those that fail to meet their interim
benchmarks to impose a proportional reduction in the size of the licensed area. Licensees that
fail to meet the end-of-term benchmarks will be subject to a “keep-what-you-use” rule, under
which the licensee will lose its authorization for unserved portions of its license area, which will
be returned to the Commission for reassignment. They may also be subject to potential
enforcement action, including possible forfeitures or cancellation of license. We also impose
371
See Blooston 700 MHz Further Notice Comments at 7-8.
372
See, e.g., RTG 700 MHz Further Notice Comments at 9-10; NTCA 700 MHz Further Notice Comments at 5-7;
Union 700 MHz Further Notice Reply Comments at 4-6.
373
See Dobson 700 MHz Further Notice Comments at 3-7.
374
See 4G Coalition 700 MHz Further Notice Comments at 15.
375
See, e.g., 700 MHz Independents 700 MHz Further Notice Comments at 8-10; Cellular South 700 MHz Further
Notice Comments at 6; Union 700 MHz Further Notice Comments at 8.
376
See, e.g., 4G Coalition 700 MHz Further Notice Comments at 17; Dobson 700 MHz Further Notice Comments at
3; Verizon Wireless 700 MHz Further Notice Comments at 19-31. According to SpectrumCo, “greenmail” is “a
practice by which parties not interested in actually providing service utilize the regulatory process to extract
concessions from licensees.” SpectrumCo 700 MHz Further Notice Comments at 29.
377
The interim benchmark for initial licenses in a market granted after February 17, 2009 shall be four years from
the date of license issuance.
378
As adopted herein, the length of original license term is ten years from the date of the DTV transition.
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certain reporting requirements intended to help the Commission monitor buildout progress
during the license term. We expect that licensees will take these construction requirements
seriously and proceed toward providing service with utmost diligence. As such, we do not
envision granting waivers or extensions of construction periods except where unavoidable
circumstances beyond the licensee’s control delay construction.
154. In adopting these stringent performance requirements for the 700 MHz
Commercial Services licenses that have not yet been auctioned, we accomplish several important
policy objectives. We ensure that these 700 MHz Commercial Services licensees put this
spectrum to use throughout the course of their license terms and serve the majority of users in
their license areas. With the inclusion of an interim benchmark and the potential for enforcement
action for failure to meet the construction requirements, we require licensees to provide service
to consumers in a timely manner. By taking advantage of the excellent propagation
characteristics of the spectrum in the 700 MHz Band, which enables broader coverage at lower
costs,379 we promote the provision of innovative services to consumers throughout the license
areas, including in rural areas. The unique propagation characteristics of this spectrum means
that fewer towers will be needed to serve a given license area, as compared to providing service
at higher frequencies, and thus large license areas may be served at lower infrastructure costs.
Moreover, by establishing clear benchmarks, we provide licensees with regulatory certainty
regarding the requirements that they must meet or, if they do not, permit other providers to gain
access to the spectrum to provide services to consumers.
155. Overall, we conclude that these set of stringent benchmarks applied across smaller
service areas with effective consequences for noncompliance, when combined with appropriately
sized geographic licensing areas, are the most effective way to promote rapid service to the
public, especially in rural areas. As noted above, the most common recommendation for
promoting rural service made by small and rural providers was that additional licenses be made
available based on smaller geographic service areas, which would be more readily available to
providers that tend to serve rural consumers.380 Because, as described below, all licensees
(including REAG licensees) must satisfy these new benchmarks on either a CMA or EA basis,
these performance requirements will provide all licensees with incentives to serve more rural
communities.
379
See Aloha 700 MHz Commercial Services Notice Comments at 2; Blooston 700 MHz Commercial Services
Notice Comments at 3; Dobson 700 MHz Commercial Services Notice Comments at 3; Frontier 700 MHz
Commercial Services Notice Comments at 4; NTCA 700 MHz Commercial Services Notice Comments 3-5; RCA
700 MHz Commercial Services Notice Comments at 3-4; RTG 700 MHz Commercial Services Notice Comments at
4-5.
380
See Aloha 700 MHz Commercial Services Notice Comments at 3-6; Balanced Consensus Plan 700 MHz
Commercial Services Notice Comment at Attach.; Blooston 700 MHz Commercial Services Notice Comments at 2;
C&W 700 MHz Commercial Services Notice Reply Comments at 2-3; Corr 700 MHz Commercial Services Notice
Comments at 2-4; Dobson 700 MHz Commercial Services Notice Comments at 2-4; Howard/Javed 700 MHz
Commercial Services Notice Comments at 9; Leap 700 MHz Commercial Services Notice Comments at 4-6;
MilkyWay 700 MHz Commercial Services Notice Comments at 1-6; NextWave 700 MHz Commercial Services
Notice Comments at 2-6; NTCA 700 MHz Commercial Services Notice Comments at 6; OPASTCO 700 MHz
Commercial Services Notice Comments at 2-3; RCA 700 MHz Commercial Services Notice Comments at 4-8; RTG
700 MHz Commercial Services Notice Comments at 2; U.S. Cellular 700 MHz Commercial Services Notice
Comments at 4.
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156. In addition, our “keep-what-you-use” rules provide additional methods for
making smaller license areas available, thus promoting access to spectrum and the provision of
service, especially in rural areas. This rule ensures that others are given an opportunity to
acquire spectrum that is not adequately built out and provide services to those who reside in
those areas.381 In this way, our rules are pro-competitive and help ensure service to communities
that might otherwise not receive service. In sum, we conclude that our approach should
effectively promote service, including in rural areas, while establishing a clear regulatory
framework for licensees as they develop their business plans.
157. Specific Performance Requirements for CMA and EA Licenses. We conclude
that, for licenses based on CMAs and EAs, licensees must provide signal coverage and offer
service to: (1) at least 35 percent of the geographic area of their license within four years of the
end of the DTV transition, and (2) at least 70 percent of the geographic area of their license at the
end of the license term. In determining the relevant geographic area, we conclude that, in
applying geographic benchmarks, we should not generally consider the relevant area of service
to include government lands. CMA or EA licensees that fail to meet the interim requirement
within their license areas will have their license terms reduced by two years, from ten to eight
years, thus requiring these licensees to meet the end-of-term benchmark at an accelerated
schedule. For those CMAs or EAs in which the end-of-term performance requirements have not
been met, the unused portion of the license will terminate automatically without Commission
action and will become available for reassignment by the Commission subject to the “keep-whatyou-use” rules described below.
158. With regard to the use of geographic-based benchmarks for licenses based on
CMAs and EAs, we seek to promote service across as much of the geographic area of the
country as is practicable. We note that, while parties that seek to acquire licenses based on
CMAs and EAs may be small and rural providers that are less likely to provide regional or
nationwide service, they nonetheless play an important role in bringing new services to
consumers in many of these more rural areas. For example, RTG argues that the use of small
license areas such as CMAs “will create opportunities for small and rural businesses and will
foster the deployment of competitive wireless broadband services in rural areas.”382 Because we
adopt smaller geographic license areas such as CMAs to facilitate the provision of service,
including broadband, in rural areas, we also adopt performance requirements that are designed to
ensure that such service is offered to consumers in these areas. We agree with Cellular South’s
argument that the uniqueness of the 700 MHz spectrum justifies the use of geographic
benchmarks and that the band’s excellent propagation characteristics make it ideal for delivering
advanced wireless services to rural areas.383 Accordingly, for licenses based on these CMAs and
EAs that are well-suited for providing service in rural markets, we establish benchmarks that
require build-out to a significant portion of the geographic area.
159. We note that these benchmarks for CMAs and EAs are similar to the benchmarks
that we sought comment on in the 700 MHz Further Notice, which proposed that licensees
381
See RCA 700 MHz Further Notice Reply Comments at 10.
382
RTG 700 MHz Commercial Services Notice Comments at 4.
383
Cellular South 700 MHz Further Notice Comments at 3.
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provide coverage to 25 percent of their geographic license area within three years of the end of
the DTV transition, 50 percent of their geographic license area within five years, and 75 percent
of their geographic license area within eight years. Although numerous parties supported the
specific benchmarks proposed in the 700 MHz Further Notice,384 the benchmarks we adopt in
this Second Report and Order differ in certain respects from the proposal in the 700 MHz Further
Notice. In recognition of the comments we have received on our build-out proposal, we have
adopted a four-year initial benchmark, not a three-year benchmark as was proposed in the 700
MHz Further Notice. We are persuaded that a three-year build-out requirement would have a
disproportionate impact on new entrants who have no existing networks or customers, as well as
small or regional carriers who are looking to enlarge their operating footprint, but who do not
already have extensive pre-existing infrastructure in place. In addition, we are allowing
additional time for the development of new technologies that might be employed in this spectrum
and giving licensees sufficient time to develop new services.385 Because we move the proposed
initial three-year coverage requirement to four years, we increase the initial geographic coverage
requirement from the proposed 25 percent to 35 percent. Accordingly, we are not adopting a
five-year coverage requirement, but we will require 70 percent geographic coverage at the end of
the license term.
160. Consistent with the arguments of many commenters, we do not require licensees
to include government lands as a part of the relevant service area when applying geographic
benchmarks for several reasons. In many locations, covering certain government land may be
impractical, because these lands are subject to restrictions that prevent a licensee from providing
service or make provision of service extremely difficult. We also note that government lands
often include only very small portions of the population in a license area. Government lands
include areas that are owned or administered by the Federal Government, including the Bureau
of Land Management, the Bureau of Reclamation, the U.S. Department of Agriculture’s Forest
Service, the Department of Defense, the U.S. Fish and Wildlife Service, the National Park
Service, the Tennessee Valley Authority, and other agencies and governmental entities, as well
as areas that are owned or managed by individual states.386 A CMA or EA licensee with a
384
See, e.g., Aloha 700 MHz Further Notice Comments at 4; CCIA 700 MHz Further Notice Comments at 4;
Cellular South 700 MHz Further Notice Comments at 4; RCA 700 MHz Further Notice Comments at 5; Vermont
Department of Public Service 700 MHz Further Notice Reply Comments at 1-2; WISPA 700 MHz Further Notice
Comments at 12.
385
We are concerned that the proposed three-year benchmark may not provide sufficient time for providers of
advanced services to acquire and deploy 4G technologies. Such 4G network build-out will require the commercial
availability of end-to-end integrated systems, including subscriber terminals, radio access network, core network,
and transport network, in addition to flexible enhanced services and integrated back-office and customer support
centers. To achieve a commercial availability benchmark, teams of service providers, vendors and integrators must
complete several parallel processes, including completion of the standards, product development, field trials,
interoperability testing and larger scale trials, followed by deployment. Such an implementation is challenging and
it may not be possible for carriers to complete these tasks prior to the end of the three-year benchmark that was
proposed in the 700 MHz Further Notice.
386
More information on lands owned or administered by the Federal Government is available from the Department
of the Interior at http://www.doi.gov. In excluding these areas for purposes of calculating whether a licensee has met
the relevant build-out requirements, however, we do not intend to discourage deployment to populated tribal areas.
Accordingly, excluded areas do not include those populated lands held by tribal governments or those held by the
Federal Government in trust or for the benefit of a recognized tribe.
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geographic service area that includes land owned or administered by government may meet the
build-out benchmarks established herein by providing signal coverage and offering service to the
relevant percentages of land in the service area that is not owned or administered by government.
161. To the extent the licensee employs a signal level and provides service to land that
is owned or leased by government, the licensee may count this land area and coverage as part of
its service area for purposes of measuring compliance with the build-out benchmark, but it also
must add the covered government land to the total geographic area used for measurement
purposes. This approach ensures that licensees receive credit for land that they cover and gives
them flexibility to meet our benchmarks through a combination of covering government and
non-government land, given that in certain cases government lands may be a high traffic area or
include a significant portion of the population in a license area.
162. Specific Performance Requirements for REAG Licenses. We conclude that, for
licenses based on REAGs, licensees must provide signal coverage and offer service to: (1) at
least 40 percent of the population of the license area within four years, and (2) at least 75 percent
of the population of the license area by the end of the license term. Licensees must use the most
recently available U.S. Census Data at the time of measurement to meet these population based
build-out requirements.
163. In addition, for licenses based on REAGs, we will apply our performance
requirements on an EA basis.387 Accordingly, to meet their benchmarks, REAG licensees must
provide signal coverage and offer service to at least 40 percent of the population in each EA in
its license area within four years and 75 percent of the population of each of these EAs at the end
of the license term. REAG licensees that fail to meet the interim requirement in any EA within
their license areas will have their license term for the entire REAG reduced by two years, from
ten to eight years, thus requiring these licensees to meet the end-of-term benchmark at an
accelerated schedule. In applying the end-of-term coverage requirement to REAG licensees, the
Commission will evaluate the licensee’s coverage on an EA-by-EA basis. For those EAs in
which the end-of-term performance requirements have not been met, the unused portion of the
license will terminate automatically without Commission action and will become available for
reassignment by the Commission subject to the “keep-what-you-use” regime described below.
164. With regard to the use of population-based benchmarks for REAG licensees, we
agree with Dobson that this type of build-out requirement is appropriate for licensees with large
geographic areas to allow for roll out of advanced services on a nationwide or regional basis.388
In particular, we are mindful of the significant capital investment and logistical challenges
associated with building a regional or nationwide system without an existing infrastructure. The
use of benchmarks based on population, rather than geographic area, may best allow a potential
new entrant to achieve the economies of scale needed for a viable business model, while also
ensuring that a majority of the population in a given region may have access to these services.
Similarly, as compared to geographic benchmarks, the use of population benchmarks is more
consistent with the recommendations and likely business plans of existing nationwide service
387
See, e.g., Cellular South 700 MHz Further Notice Comments at 6.
388
See Dobson 700 MHz Further Notice Comments at 3-7.
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providers such as AT&T and Verizon Wireless.389 As these large providers expand into more
advanced services such as broadband, they, like new entrants, will need to spread the costs of
developing such operations over as many customers as possible. The use of population-based
benchmarks, rather than geographic benchmarks, allows these new and existing providers to
promptly and efficiently develop these new services, thus reaching more consumers more
quickly. Accordingly, to facilitate new entry as well as the expansion of service to as many
people as practicable, we combine the use of REAGs with population-based performance
requirements. These population-based benchmarks are similar to those proposed by Verizon
Wireless in its comments.390 Verizon Wireless proposes covering 50 percent of the population of
a license area within five years and 75 percent of the population of a license area by the end of
the license term. We have adjusted the interim population percentage figure to 40 percent
because we are making the first benchmark applicable at four years rather than five years.
Further, we are applying these requirements on an EA basis for REAG licenses in order to help
ensure that REAG licensees serve more rural consumers. If we were to apply these requirements
on a REAG basis, rather than an EA basis, REAG licensees would be able to meet their
performance requirements largely by serving urban areas only. Our use of EAs to measure
build-out for REAG licenses will avoid this result and best promote the development and
deployment of broadband services over such large license areas.
165. Reporting Requirements. In connection with the performance requirements
adopted in this Second Report and Order, we adopt an interim reporting requirement that will
obligate licensees to provide the Commission with information concerning the status of their
efforts to meet the performance requirements and the manner in which their spectrum is being
utilized. In addition, this information will be useful to monitor whether further assessment of the
rules or other actions are necessary in the event spectrum is being stockpiled or warehoused, or if
it is otherwise not being made available despite existing demand. For licensees that meet their
interim benchmarks, these reports will be filed at the end of the second and seventh years
following the end of the DTV Transition, i.e., February 17, 2011 and February 17, 2016. For
licensees that do not meet their interim benchmarks and have their license terms reduced, the
second report will be filed at the end of the sixth year following the end of the DTV Transition,
i.e., February 17, 2015. The information to be reported will include a description of the steps the
licensee has taken toward meeting its construction obligations in a timely manner, including the
technology or technologies and service(s) being provided and the areas in which those services
are available.
166. Procedures for Implementation. Licensees must demonstrate compliance with
our interim and end-of-term construction benchmarks by filing a construction notification with
the Commission within 15 days of the relevant benchmark certifying that they have met our
performance requirements or, if they have not met our performance requirements, they must file
a description and certification of the areas for which they are providing service.391 The
389
See AT&T 700 MHz Further Notice Comments at 19-20; Verizon Wireless 700 MHz Further Notice Comments
at 28-29.
390
See Verizon Wireless 700 MHz Further Notice Comments at 28-29.
391
See 47 C.F.R. § 1.946(d) (“The notification must be filed with Commission within 15 days of the expiration of
the applicable construction or coverage period.”).
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information contained in the licensee’s construction notification must include electronic
coverage maps and other supporting documentation.392 The construction notification, including
the coverage maps and supporting documents, must be truthful and accurate and must not omit
material information that is necessary for the Commission to make a determination of
compliance with its performance requirements.393 In addition, we recognize that demonstrations
of coverage may vary across licensees. For example, unlike with cellular service, which was
implemented pursuant to a uniform, Commission-mandated technical standard, licensees in the
700 MHz Band likely will use a variety of technologies to provide a range of services with this
spectrum. Accordingly, we delegate to the Wireless Bureau the responsibility for establishing
the specifications for filing maps and other documents (e.g., file format and appropriate data)
needed to determine a licensee’s geographic coverage area. We recognize that coverage
determinations may need to be made on a case-by-case basis so as to account for the potentially
wide variety of services and technologies that may be offered in the band.
167. As explained above, licensees with REAG-based licenses are required to meet
their applicable performance requirements on an EA basis and licensees with EA- or CMA-based
licenses must demonstrate coverage for their respective geographic license areas. The electronic
coverage maps must clearly and accurately depict the boundaries of each EA or CMA in the
licensee’s service territory, and the areas where the licensee is providing signal coverage and
offering service. If the licensee’s signal does not provide service to the entire EA or CMA, the
map must clearly and accurately display the boundaries of the area or areas within each EA or
CMA not being served. 394
168. In addition to filing electronic coverage maps, each licensee must file supporting
documentation certifying the type of service it is providing for each EA or CMA within its
license service territory and the type of technology it is utilizing to provide this service for each
EA or CMA in its service territory. The supporting documentation also must provide the
assumptions used by the licensee to create the coverage maps, including the propagation model
and the signal strength necessary to provide service with the licensee’s technology.395
169. When the licensee files its construction notification, including its coverage maps
and supporting documentation, the public will be given an opportunity to review and comment
on the construction notification, including the maps provided by the licensee and the technical
392
When the Commission adopted a benchmark approach for Personal Communications Service (PCS), it stated:
“Licensees must file maps and other supporting documents showing compliance with the respective construction
requirements within the appropriate five- and ten-year benchmarks of the date of their initial licenses.” 47 C.F.R. §
24.203(c). See, e.g., Cellular South 700 MHz Further Notice Comments at 5.
393
See, e.g., 47 C.F.R. § 1.17 (Truthful and accurate statements to the Commission); 47 C.F.R. § 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.”).
394
We decline to adopt the suggestion from RTG that we define a bright line test for what constitutes sufficient
signal strength, because we will be able to determine compliance with our build-out requirements on the basis of
these detailed filing requirements. See RTG 700 MHz Further Notice Comments at 8-12.
395
For EA and CMA licenses, if any part of the license area includes government lands, the licensee must certify in
the supporting documentation what percentage of the EA or CMA contains government lands exempted from
coverage.
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assumptions used to create the maps. After examining the notification and public comments,
Commission staff will make a final determination as to what areas within EAs and CMAs are,
and are not, deemed “served.” If the Commission determines that a licensee meets the applicable
interim benchmark, it will not have its license term reduced by two years. Likewise, if the
Commission determines that a licensee meets its applicable end of term benchmark requirement,
it will be deemed to have met our construction build-out requirement.
170. Under our “keep-what-you-use” rule, if a licensee fails to meet its end of term
benchmark, its authorization to operate will terminate automatically without Commission action
for those geographic areas of its license authorization in which the licensee is not providing
service, and those unserved areas will become available for reassignment by the Commission.
We will update our Universal Licensing System records to reflect those geographic areas for
which the licensee retains authority to operate, as well as those geographic areas that will be
made available for reassignment.
171. For purposes of reassigning these licenses, the Wireless Bureau is delegated
authority to announce by public notice that these licenses will be made available and establish a
30-day window during which third parties may file license applications to serve these areas.
During this 30-day period, licensees that lost their license authorizations for the areas that they
did not serve may not file applications to provide service to these areas. Applications filed by
third parties that propose areas overlapping with other applications will be deemed mutually
exclusive, and will be resolved through an auction. The Wireless Bureau, by public notice, may
specify a limited period before the filing of short-form applications (FCC Form 175) during
which applicants may enter into a settlement to resolve their mutual exclusivity.
172. Following this 30-day period, the original licensee and third parties can file
license applications for remaining unserved areas where licenses have not been issued or there
are no pending applications. If the original licensee or a third party files an application, that
application will be placed on public notice for 30 days. If no mutually exclusive application is
filed, the application will be granted, provided that a grant is found to be in the public interest. If
a mutually exclusive application is filed, it will be resolved through an auction. The Wireless
Bureau, by public notice, may specify a limited period before the filing of short-form
applications (FCC Form 175) during which applicants may enter into a settlement to resolve their
mutual exclusivity. We stress that any applications that are mutually exclusive under the
performance requirements we adopt in this Second Report and Order, as well as certain other
pleadings, will be subject to Section 1.935 of the rules.396 Under that rule, parties that have filed
applications that are mutually exclusive with one or more other applications must request
Commission approval to dismiss or withdraw the applications. Parties are required to submit any
written agreement related to the dismissal or withdrawal as well as affidavits certifying that no
money or other consideration in excess of certain “legitimate and prudent expenses” has or will
be exchanged in return for withdrawing or dismissing the applications.397
396
47 C.F.R. § 1.935. In addition to applications, Section 1.935 also addresses petitions to deny, informal
objections, or other pleadings.
397
Id.
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173. A licensee obtaining spectrum that was lost through our “keep-what-you-use” rule
will have one year from the date it is issued a license to complete its construction and provide
signal coverage and offer service to the entire new license area. If the licensee fails to meet this
construction requirement, its license will automatically cancel without Commission action and it
will not be eligible to apply to provide service to this area on the same frequencies at any future
date. We find that a one-year deadline is consistent with the period we provided to entrants
building out in unserved cellular areas,398 and will promote expedited provision of service to
remote and rural areas.
174. Under our “keep-what-you-use” rules, the Commission will determine whether an
area is unserved by applying a de minimis standard similar to that applied to cellular service,
which provides that the geographic service area to be made available to new entrants must
include a contiguous area of at least 130 square kilometers (50 square miles).399 Areas smaller
than this will not be deemed unserved by the Commission, because auctioning and licensing
smaller areas to new licensees could result in harmful interference to incumbent licensees.
Accordingly, unserved areas that are smaller than 130 kilometers will continue to be a part of the
licensee’s license area. In those geographic areas that the Commission deems as served, the
licensee will retain its exclusive spectrum rights, including the ability to transfer and lease these
areas. As explained below, the licensee also will have the opportunity to expand its service into
the unused parts of its original license area.
175. While we will enforce our performance requirements to make unserved areas
available to new entrants, we also will enforce all other Commission rules, including those
related to protecting licensees against interference and limiting strategic behavior. Our rule
governing field strength limits for licensees in this band, for example, serves the dual purposes of
permitting actual service to occur even at the edge of geographic market boundaries, and
establishing a baseline for licensees to negotiate technical parameters (e.g., higher or lower field
strengths, coordinated site placement) that will maximize coverage. This approach can be
successful so long as neighboring licensees not only have the flexibility to place facilities near
license boundaries, but also face the potential of harmful interference from neighboring licensees
facilities. A licensee, however, could decide to place transmitters along a market boundary, not
provide service to any system users, and cause interference to a neighboring licensee. Without
system users, such a licensee would not fear interference in return, and could use such operations
to gain an advantage in negotiations with the neighboring licensee. Examples of this type of
operation could include the placement of mobile system base station transmitters, or fixed
transmitters, near a market boundary, oriented in such a way as to meet the field strength limits
in the rules, but cause interference to a neighboring licensee's system users near the boundary.
Because of the potential for this scenario, we remind licensees that Section 333 of the
Communications Act, as amended,400 prohibits willful and malicious interference with or causing
interference to a licensed or authorized station, and we note that we will vigorously investigate
complaints of this nature and enforce this provision.
398
47 C.F.R. §§ 22.946(c), 22.949.
399
See 47 C.F.R. § 22.951.
400
47 U.S.C. § 333.
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176. Other Issues. In rejecting the arguments of parties advocating continuation of the
current substantial service standard,401 we note that there is no requirement that construction
build-out provisions be the same for all commercial wireless services, nor even for those of a
certain type.402 We determine that given the excellent propagation characteristics of this
spectrum,403 the benefits of service being offered before the end of the license term, and the
public interest that would be served by ensuring additional service in the more rural and remote
areas of this country, more rigorous performance requirements are appropriate for these 700
MHz commercial licenses.
177. Given these stringent performance requirements, we decline to adopt the proposal
that would allow third parties to access the unused portions of a licensee’s spectrum on a noninterfering basis. While several commenters raise this issue,404 we note that, in the TV White
Spaces Report and Order, the Commission specifically declined to apply to the 700 MHz Band
the unlicensed use rules that it adopted for the core TV spectrum. The Commission observed
that, as compared to the core TV bands, the 700 MHz Band will have different services, with
different interference considerations.405 The Commission also noted the difficulty of allowing
unlicensed use of white spaces in spectrum used by mobile devices.406 Moreover, we have taken
other steps in this Report and Order to promote access to the 700 MHz Band, especially in rural
areas, through the use of smaller geographic license areas and stringent build-out requirements.
(ii)
Partitioning and Disaggregation
178. Background. The Commission’s Part 27 rules permit geographic partitioning and
spectrum disaggregation by 700 MHz Commercial Services licensees.407 As the Commission
stated when first establishing partitioning and disaggregation rules: “We believe that such
flexibility will (1) facilitate the efficient use of spectrum by providing licensees with the
401
Some commenters argue that the details of implementation of “keep-what-you-use” will be overly burdensome
and contentious. See, e.g., Leap 700 MHz Further Notice Comments at 5-7; Verizon Wireless 700 MHz Further
Notice Comments at 19-31.
402
See, e.g., 47 C.F.R. § 24.203(b) (sets out different construction obligations for certain 15 MHz C Block PCS
licenses that result from disaggregation as compared to other 15 MHz C Block licenses that result from
disaggregation).
403
See, e.g., Aloha 700 MHz Commercial Services Notice Comments at 2; Blooston 700 MHz Commercial Services
Notice Comments at 3; Dobson 700 MHz Commercial Services Notice Comments at 3; Frontier 700 MHz
Commercial Services Notice Comments at 4; NTCA 700 MHz Commercial Services Notice Comments at 3-5; RCA
700 MHz Commercial Services Notice Comments at 3-4; RTG 700 MHz Commercial Services Notice Comments at
4-5.
404
See, e.g., Howard/Javed 700 MHz Commercial Services Notice Comments at 31-37; NextWave 700 MHz
Commercial Services Notice Reply Comments at 9-12; PISC 700 MHz Further Notice Comments at 37; see also
Google 700 MHz Further Notice Comments at 9.
405
TV White Spaces Report and Order, 21 FCC Rcd at 12275 ¶ 21.
406
For example, in addressing the issue of unlicensed use in the TV white spaces, the Commission noted that in 13
markets across the country Private Land Mobile Radio Service (PLMRS) licensees use some channels in the range
of channels 14-20, and it observed that personal/portable mobile devices could be easily transported into these areas.
Accordingly, the Commission prohibited such devices from operating on these channels in any part of the country.
See TV White Spaces Report and Order, FCC Rcd at 12275 ¶ 21.
407
47 C.F.R. § 27.15.
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flexibility to make offerings directly responsive to market demands for particular types of
service; (2) increase competition by allowing market entry by new entrants; and (3) expedite the
provision of service to areas that otherwise may not receive … service in the near term.”408
Licensees seeking to partition or disaggregate (“partitioners” or “disaggregators”) and parties
seeking to gain access to spectrum through partitioning or disaggregation (“partitionees” or
“disaggregatees”) may seek Commission authorization at any time following the grant of the
initial licenses.409 At the time of their applications, the original licensees and the parties seeking
to obtain new licenses of partitioned or disaggregated spectrum must establish how the
applicable performance requirements associated with the various license authorizations will be
met.410 The goal of these construction requirements in both the partitioning and disaggregation
context is “to ensure that the spectrum is used to the same degree that would have been required
had the partitioning or disaggregation transaction not taken place.”411
179. Section 27.15(d) implements the Commission’s existing rules pertaining to
construction obligations in the context of partitioning and disaggregation. Consistent with the
substantial service requirements that had previously been adopted for these licenses, the existing
rules address how the substantial service policies apply in this context. The partitioning rules,
set forth in Section 27.15(d)(1), provide parties with two different options for satisfying these
requirements. Under the first option, the partitioner and partitionee each must certify that it will
independently satisfy the substantial service requirement for its respective partitioned area. If a
licensee, either the partitioner or the partitionee, subsequently fails to meet the performance
requirements associated with the license authorization for its partitioned area, its license is
subject to automatic cancellation without further Commission action. Under the second option,
the partitioner must certify that it has met or will be responsible for meeting the performance
requirements for the entire, pre-partitioned geographic service area.412 We note that another Part
27 provision requires that the partitionee make a showing of substantial service at the end of the
license term.413
180. The disaggregation rules, set forth in Section 27.15(d)(2), also provide parties two
options for satisfying the substantial service requirements. Under the first option, the
disaggregator and disaggregatee each must certify that it will share responsibility for meeting the
substantial service requirement for the geographic service area. If the parties choose this option
and either party subsequently fails to meet this requirement, both parties’ licenses are subject to
forfeiture without further Commission action. Under the second option, both parties must certify
either that the disaggregator or the disaggregatee will meet the substantial service requirement
408
Geographic Partitioning and Spectrum Disaggregation by Commercial Mobile Radio Service Licensees, Report
and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21831 ¶ 1 (1996) (CMRS Partitioning and
Disaggregation Order).
409
See, e.g., 47 C.F.R. § 27.15 (partitioning and disaggregation rules for Part 27 licenses).
410
See id.
411
CMRS Partitioning and Disaggregation Order, 11 FCC Rcd at 21864 ¶ 61.
412
47 C.F.R. § 27.15(d)(1).
413
47 C.F.R.§ 27.14(a) (every Part 27 licensee must establish substantial service at the end of the license term).
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for the geographic service area.414 As provided by another provision of our Part 27 rules, the
other licensee must also make a showing of substantial service at the end of the license term.415
181. In the 700 MHz Commercial Services Notice, we sought comment on whether to
change any aspect of Section 27.15 on partitioning and disaggregation in order to help ensure the
provision of service to consumers, including any rural areas that are part of a partitioned or
disaggregated license.416 We received no comments regarding how the Commission should or
might revise these rules.
182. Discussion. Upon examination of the existing partitioning and disaggregation
rules set forth in Section 27.15(d), and in consideration of stricter performance obligations we
are establishing (as discussed above), we amend our rules to clarify how those obligations will
apply to the partitioning and disaggregation of 700 MHz Commercial Services licenses that
remain to be auctioned. In particular, having adopted stricter performance requirements for these
licensees, we establish how these rules will work with regard to the four-year and the end-ofterm benchmarks and the “keep-what-you-use” policies discussed above. These amendments
concern only the specific rules in Section 27.15(d) as they apply to the new 700 MHz
Commercial Services licenses, and only those Section 27.15 rules that specifically concern
construction requirements in the context of partitioning and disaggregation.417
183. These modifications seek to continue to provide flexibility to licensees and third
parties to enter into partitioning and disaggregation arrangements that will, inter alia, facilitate
the provision of new services to consumers, including consumers in unserved and underserved
areas. They also are consistent with our goal of ensuring that this 700 MHz spectrum is used at
least to the same extent as it would have been had partitioning or disaggregation not occurred.
184. Partitioning. Under our modifications of the Section 27.15(d) rules relating to
geographic partitioning of new 700 MHz Commercial Services licenses, we establish two
options for partitioners and partitionees with regard to the newly adopted performance
requirements discussed above.
185. Under the first option, the partitioner and partitionee must each certify to the
Commission that they will share responsibility for meeting the performance requirements for the
entire original geographic license area. Under this option, the partitioner, partitionee, or both the
partitioner and partitionee working together, can meet the four-year and end-of-term construction
benchmarks for the entire geographic license area.418 If the parties meet the end-of-term
414
47 C.F.R. § 27.15(d)(2).
415
47 C.F.R. § 27.14(a) (every Part 27 licensee must establish substantial service at the end of the license term).
416
Id.
417
Specifically, we will keep in place for new 700 MHz Commercial Services licensees the other existing Section
27.15 rules pertaining to geographic partitioning and spectrum disaggregation – Sections 27.15(a), (b), and (c).
These sections address eligibility, technical standards, and license term.
418
For applications seeking Commission approval for license partitioning that would occur before the four-year
performance requirements have become due, the partitioner and partitionee each must certify that they will share
responsibility for meeting the four- and ten-year benchmarks for the original geographic license area. For
applications seeking Commission approval for license partitioning after the four-year benchmark has been met, both
parties must certify that they will share responsibility for meeting the ten-year build-out requirement.
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construction benchmarks, they will retain the ability to continue to build out the unserved portion
of their license areas. Parties that fail to meet the end-of-term benchmarks will be subject to a
“keep-what-you-use” rule, under which they will lose their authorization for unserved portions of
their license areas, which will automatically cancel and return to the Commission for
reassignment. This option enables parties to share the cost of meeting the stricter buildout
benchmarks as required by the Commission under its new performance requirements, while
ensuring that buildout will occur over the original license area to the same extent as it would
have occurred had the license never been partitioned.
186. Under the second option, the partitioner and partitionee must each certify that it
will independently meet the applicable performance requirements for its respective partitioned
service area.419 If the partitioner or partitionee fails to meet the four-year build-out requirement
for its respective partitioned service area, then its license term will be reduced by two years.420 If
the parties meet the end-of-term construction benchmarks, they will retain the ability to continue
to build out the unserved portion of their license areas. Parties that fail to meet the end-of-term
benchmarks will be subject to a “keep-what-you-use” rule, under which they will lose their
authorization for unserved portions of their license areas, which will automatically cancel and
return to the Commission for reassignment. This option provides a way for partitioners and
partitionees to ensure that their licenses will not be affected by the other party’s conduct with
regard to meeting the applicable performance requirements.
187. Disaggregation. With regard to the rules relating to disaggregation of new 700
MHz Commercial Services Band licenses, we modify Section 27.15(d) to provide that the
disaggregator, disaggregatee, or both the disaggregator and disaggregatee working together, can
meet the four-year and end-of-term construction benchmarks for the entire geographic license
area.421 If either of the parties meets the four-year build-out requirement, then this requirement is
considered to be satisfied for both parties. If neither of the parties meets the four-year build-out
requirement, then each of their license terms will be reduced by two years.422 Similarly, if either
of the parties meets the end-of-term build-out requirement, then this requirement is considered to
be satisfied for both parties, and they will retain the ability to continue to build out the unserved
419
If the parties choose this option and enter into a partitioning agreement before the four-year build-out
requirements have become due, then each party must certify that it will meet both the four- and ten-year build-out
requirements for its respective partitioned geographic license area. If the parties enter into a partitioning agreement
after the four-year construction benchmark has been met, then each party must certify that it will meet the ten-year
build-out requirement for its respective partitioned license area.
420
To the extent that a REAG licensee partitions a license, and the four-year construction benchmark is not met with
regard to any EA area, the REAG licensee’s license term would be reduced to eight years, thus requiring that the
licensee meet the end-of-term benchmark at an accelerated schedule.
421
For a disaggregation that would occur before the four-year build-out requirement is due, the disaggregator,
disaggregatee, or both the disaggregator and disaggregatee working together must meet the four- and ten-year
benchmarks for the geographic license area. For disaggregation that would occur after the interim four-year
benchmark has been met, the disaggregator, disaggregatee, or both the disaggregator and disaggregate working
together must meet the ten-year build-out requirement.
422
Similar to the rules applicable to partitioning discussed above, to the extent that a REAG licensee disaggregates a
license and the four-year construction benchmark is not met with regard to any EA area, the REAG licensee’s
license term would be reduced to eight years, thus requiring that the licensee meet the end-of-term benchmark at an
accelerated schedule.
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portion of their license areas. However, parties that fail to meet the end-of-term benchmarks will
be subject to an automatic “keep-what-you-use” rule, under which they will lose their
authorization for unserved portions of their license areas, which will automatically cancel and
return to the Commission for reassignment..
188. This approach to our build-out requirements in the disaggregation context will not
create additional burdens for these arrangements because the parties need build out only to the
same extent as would have occurred if the spectrum for this area had not been disaggregated.
This approach also provides the opportunity for parties to enter into disaggregation agreements
where they would share the cost of meeting the construction requirement. By ensuring that the
performance obligation remains on both parties, we provide greater assurance that the
disaggregation agreement will result in compliance with these requirements. In addition, we
note that either party is able to satisfy our build-out requirements independently in the
disaggregation context because each will hold spectrum over the entire geographic area.
(iii)
Open Platforms for Devices and Applications
189.
Background. In the 700 MHz Further Notice, we sought comment on a proposal
filed by PISC that licenses for at least 30 megahertz of the unauctioned commercial 700 MHz
Band spectrum bear a condition requiring a licensee to provide open platforms for devices and
applications. 423 PISC described its proposal as including the right of a consumer to use any
equipment, content, application, or service on a non-discriminatory basis.424 PISC subsequently
expanded its proposal to recommend that these requirements should apply to all 60 megahertz of
the unauctioned spectrum.425
190. PISC argues that “incumbent wireless carriers . . . routinely choke bandwidth to
users, cripple features, and control the user experience” in order to protect their wireline
broadband offerings (e.g., DSL and cable modem).426 Supporters offer many examples of such
restrictions, including restrictions on the use of Voice Over Internet Protocol (VoIP), webcams,
and other media devices.427 Frontline cites the Apple iPhone device, which is designed to work
exclusively on one provider’s network.428 Other commenters refer to the record in a rule making
proceeding requested by Skype Communications S.A.R.L (Skype), where, as here, commenters
complain that incumbent wireless service providers impose restrictions on a range of devices and
features, such as VoIP,429 and “routinely choke bandwidth to users, cripple features, and control
423
The Ad Hoc Public Interest Spectrum Coalition consists of the Consumer Federation of America, Consumers
Union, Free Press, Media Access Project, New America Foundation, and Public Knowledge.
424
PISC’s proposal for the 700 MHz Band generally is more extensive than a similar proposal by Frontline for open
access in a portion of the Upper 700 MHz spectrum Frontline proposes to be used for a public/private partnership
license. See 700 MHz Further Notice, 22 FCC Rcd at 8167-68 ¶ 290.
425
PISC 700 MHz Further Notice Comments at 12.
426
PISC 700 MHz Further Notice Comments at 7.
427
WFCI June 7 Ex Parte at 4.
428
Frontline 700 MHz Further Notice Comments at 21-22.
429
MoveOn.org June 4, 2007 Reply Comments at 1; Skype July 10, 2007 Ex Parte at 3.
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the user experience.”430 In addition, Wireless Founders Coalition for Innovation (WFCI) also
complains that wireless providers impose an “arduous,” “difficult and time-consuming” set of
qualification and approval processes before applications can be run or devices attached to a
network.431
191. Proponents argue that without mandated open access, wireless broadband service
is unlikely to develop into a vigorous competitor for existing wireline broadband services,
because incumbent wireless service providers owned by wireline companies will instead limit the
quality of their wireless broadband offerings to protect their wireline broadband offerings.432
These commenters credit the open access model with creating a competitive environment in
which independent service and equipment providers flourished in this country under the
Carterfone decision,433 the Computer Proceedings, and the 1996 Telecommunications Act.434
They argue that the 700 MHz open access policies they advocate will facilitate competitive entry
for both wireless service providers and Internet service providers, which will foster innovation,
enhance services, and lower prices.435 For example, Google maintains that the only way to
guarantee new broadband platforms is through open platform requirements: open applications,
open devices, open services, and open networks.436
192. On the other hand, opponents dispute the need for open access requirements and
argue that these requirements could have adverse consequences. They maintain that, unlike the
monopoly wireline market in which the Carterfone decision was based, there is effective
competition in the mobile wireless market and that auction of the remaining commercial 700
430
PISC 700 MHz Further Notice Comments at 7. Handset or phone “locking,” for example, is one practice that
arguably prevents consumers from migrating otherwise technically compatible equipment from one wireless service
provider to another. Providers claim that it is a practice designed to combat fraud. See Verizon Wireless July 25
Exempt Ex Parte, Attach. at 22-23, and Verizon Wireless July 27 Exempt Ex Parte at 2 (locking restrictions should
be limited to locking or programming a device to prevent a user from activating device on another carrier's
network); see also, e.g., the following comments filed in the Skype proceeding, RM-11361: PISC Comments at ii, 8;
API Comments at 2; Consumers Union at i, 2-5, 11; NASUCA Comments at 3; PPH Comments at 2-3; PISC
Comments at 2-3, 8; Ram Fish Comments at 3, 9; BT Americas Reply Comments at 1, 8-10, 12; NASUCA Reply
Comments at 5.
431
WFCI July 3, 2007 Ex Parte, Attach. at 1-11.
432
PISC 700 MHz Further Notice Comments at 15, 22-26; MoveOn.org 700 MHz Further Notice Reply Comments
at 1; see also CCIA 700 MHz Further Notice Comments at 6; Frontline 700 MHz Further Notice Comments at 2122; Google 700 MHz Further Notice Comments at 2; Frontline 700 MHz Further Notice Comments on Google’s
Comments at 4; WFCI 700 MHz Further Notice Comments at 3.
433
Use of the Carterfone Device in Message Toll Telephone Service, 13 FCC 2d 420 (1968).
434
See, e.g., PISC 700 MHz Further Notice Comments at 16-19; Vanu 700 MHz Further Notice Comments at 4;
Google June 9, 2007 Ex Parte at 5-6; see also Frontline 700 MHz Further Notice Comments at 22. In addition,
approximately 250,000 individual citizens filed brief comments both during and after the formal comment periods
asking the Commission to ensure that large corporations will not stifle competition and innovation in Internet
markets over U.S. airwaves, and to set aside at least 30 MHz of spectrum for open and non-discriminatory Internet
access.
435
See, e.g., PISC 700 MHz Further Notice Comments at 20-22; Vanu 700 MHz Further Notice Comments at 5; The
Coalition for 4G in America July 20 Ex Parte at 1; Public Knowledge July 23 Ex Parte at 4-7; see also Frontline
700 MHz Further Notice Comments at 21; Frontline 700 MHz Further Notice Reply Comments at 32.
436
Google July 9 Ex Parte at 4-8.
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MHz Band spectrum will provide opportunities for additional competitors.437 Opponents assert
that open access advocates exaggerate the restrictions wireless providers impose on
consumers,438 and to the extent providers do engage in such practices, such practices are
reasonable measures to protect the integrity and efficiency of wireless networks.439 In addition,
some commenters argue that imposing open access requirements would directly contradict
Commission findings that bundling mobile handsets with wireless service contracts increases
wireless penetration, and that subjecting wireless broadband Internet access service providers to
access, price, or unbundling mandates is a disservice to consumers.440 Verizon Wireless
maintains that the “incumbent advantages” cited by Google are not anticompetitive, and result
from high-risk capital investments in a competitive market.441
193. Opponents also challenge open access requirements as a throwback to an obsolete
“command-and-control” regulatory regime, which they see as unnecessarily restricting mobile
wireless licensees’ flexibility to adapt to market conditions and effectively compete.442 Verizon
Wireless argues that imposing an open access business model undermines the auction process
and competitive bidding, which is designed to identify those bidders who place the highest value
on the licenses to ensure that this scarce resource is not wasted or underexploited.443 Verizon
437
CTIA 700 MHz Further Notice Comments at 24; Dobson 700 MHz Further Notice Comments at 9-10; MetroPCS
700 MHz Further Notice Comments at 39; Qualcomm 700 MHz Further Notice Comments at 11-12; CTIA 700
MHz Further Notice Reply Comments at 10, 13; MetroPCS 700 MHz Further Notice Reply Comments at 25-27;
Qualcomm 700 MHz Further Notice Reply Comments at 5; T-Mobile 700 MHz Further Notice Reply Comments at
4-5, 7-9; TCA 700 MHz Further Notice Reply Comments at 4-5; Verizon Wireless 700 MHz Further Notice Reply
Comments at 15; see also MetroPCS 700 MHz Further Notice Reply Comments at 35-36; Verizon Wireless 700
MHz Further Notice Comments at 46; U.S. Cellular July 24, 2007 Ex Parte at 2; Verizon July 25 Exempt ex parte,
attaching Verizon’s Comments in RM-11361. Cf. AT&T 700 MHz Further Notice Comments at 22, 28-33; AT&T
700 MHz Further Notice Reply Comments at 3-6. We note that although AT&T’s comments and reply comments
generally opposed “open access,” in recent filings AT&T states that it supports a limited access requirement so long
as there are safeguards addressing its earlier concerns. AT&T July 20 Ex Parte, Attach. at 2.
438
See, e.g., CTIA July 19, 2007 Ex Parte at 1-2 (noting CTIA’s demonstration of handsets from four largest
wireless carriers with integrated open Wi-Fi connectivity as well as ability to “easily run Skype application”).
439
CTIA 700 MHz Further Notice Comments at 23-24; Dobson 700 MHz Further Notice Comments at 10-11;
Qualcomm 700 MHz Further Notice Comments at 12; MetroPCS 700 MHz Further Notice Reply Comments at 2831; T-Mobile 700 MHz Further Notice Reply Comments at 10; see also Verizon Wireless 700 MHz Further Notice
Comments at 46-48; Verizon Wireless 700 MHz Further Notice Reply Comments at 21-22.
440
See, e.g., Verizon Wireless July 24 Ex Parte at 4.
441
Verizon Wireless July 24 Ex Parte at 3.
442
CTIA 700 MHz Further Notice Comments at 24; Dobson 700 MHz Further Notice Comments at 10; MetroPCS
700 MHz Further Notice Comments at 39-40; Qualcomm 700 MHz Further Notice Comments at 12; AT&T 700
MHz Further Notice Reply Comments at 3, 13-17; MetroPCS 700 MHz Further Notice Reply Comments at 25, 2728,40; Qualcomm 700 MHz Further Notice Reply Comments at 6; T-Mobile 700 MHz Further Notice Reply
Comments at 9; TCA 700 MHz Further Notice Reply Comments at 5; see also CTIA 700 MHz Further Notice
Comments at 17-19; Verizon Wireless 700 MHz Further Notice Comments at 46-47; MetroPCS 700 MHz Further
Notice Reply Comments at 40; Verizon Wireless 700 MHz Further Notice Reply Comments at 19-20.
443
See, e.g., Verizon Wireless July 24 Ex Parte at 2-3; MetroPCS July 16 Ex Parte at 1-2; see also CTIA June 29 Ex
Parte at 2 (open access proposals are premature); cf. Wireless Internet Service Providers Ass’n July 12 Ex Parte at 1
(opposed to open access proposals in markets where bidding credits are available, but notes that open access for
larger geographic spectrum blocks would provide opportunity for new entrants).
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Wireless asserts that imposing open access regulations runs contrary to the Commission’s “light
regulatory touch” for wireless services generally, and is inconsistent with the Commission’s
prior determinations regarding the regulation of broadband services.444 According to Verizon
Wireless, requiring winners of licenses in the 22 MHz block to provide open access would
impose an asymmetrical regulatory regime on only one segment of the industry, thus drawing
arbitrary distinctions by treating those licensees differently than other 700 MHz licensees, other
wireless providers and/or broadband Internet access providers.445 Also, according to Verizon
Wireless, the Commission cannot impose access requirements without violating various sections
of the Communications Act and affecting the First Amendment rights of existing providers.
AT&T, on the other hand, maintains that open access requirements for the 700 MHz C Block
would enable the introduction of an alternative wireless business model without requiring
changes in the business models of AT&T (and others) in the highly competitive wireless
industry.446 According to AT&T, the proposal provides an opportunity for new entrants to bid
and test their business models in the marketplace.447
194. Several commenters also note that PISC’s proposal involves issues also raised in
the Broadband Practices proceeding448 and in the Skype Petition.449 Opponents of open access
argue that such proposals affect the wireless industry at large, not just parties interested in the
700 MHz Band spectrum, and are more appropriately considered in a forum with a broad
perspective.450 In the Broadband Practices proceeding, we are exploring the nature of the market
for broadband and related services, including whether consumer choice of broadband providers
is sufficient to ensure that certain broadband policies ultimately benefit consumers and whether
any regulatory intervention is necessary.451 The Broadband Practices proceeding is premised on
an earlier Commission policy statement setting out the following principles to encourage
broadband deployment, and to preserve and promote the open and interconnected nature of the
public Internet to all consumers: (1) consumers are entitled to access the lawful Internet content
of their choice; (2) consumers are entitled to run applications and use services of their choice,
444
Verizon Wireless July 24 Ex Parte at 7-8.
445
Verizon Wireless July 24 Ex Parte at 9-12. Verizon Wireless compares the 22 MHz block licensees to the AWS1 licensees, where open access requirements were not imposed, arguing that spectrum allocation was intended for
the same type of service as 700 MHz and therefore these licensees should have the same regulatory requirements.
446
AT&T July 20 Ex Parte, Attach. at 1-2.
447
AT&T July 20 Ex Parte, Attach. at 2; but see CTIA June 29 Ex Parte at 1-2 (open access proposals effectively
remove availability of spectrum to small and rural providers); MetroPCS July 16, 2007 Ex Parte at 2.
448
Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894 (2007) (Broadband
Practices).
449
Petition to Confirm a Consumer’s Right to Use Internet Communications Software and Attach Devices to
Wireless Networks, RM-11361 (filed Feb. 20, 2007) (Skype Petition). Our discussion of the Skype Petition herein is
not intended to weigh the merits of Skype’s request.
450
CTIA 700 MHz Further Notice Comments at 24-25; MetroPCS 700 MHz Further Notice Comments at 40; TIA
700 MHz Further Notice Comments at 8-9; Verizon Wireless 700 MHz Further Notice Comments at 48-49; AT&T
700 MHz Further Notice Reply Comments at 4; CTIA 700 MHz Further Notice Reply Comments at 13; T-Mobile
700 MHz Further Notice Reply Comments at 10; see also CTIA 700 MHz Further Notice Comments at 18;
MetroPCS 700 MHz Further Notice Reply Comments at 40.
451
Broadband Practices, 22 FCC Rcd at 7894.
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subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of
legal devices that do not harm the network; and (4) consumers are entitled to competition among
network providers, application and service providers, and content providers.452 The Skype
Petition asks the Commission to: (a) declare that wireless services are subject to Carterfone
principles that consumers have the right to attach any non-harmful device of their choosing to the
network and run Internet applications of their choosing;453 and (b) enforce those principles by
initiating a rule making proceeding to determine whether wireless service providers are acting
consistently with the Carterfone principles.454
195. Discussion. Although we generally prefer to rely on marketplace forces as the
most efficient mechanism for fostering competition, we conclude that the 700 MHz spectrum
provides an important opportunity to apply requirements for open platforms for devices and
applications for the benefit of consumers, without unduly burdening existing services and
markets. For the reasons described below, we determine that for one commercial spectrum block
in the 700 MHz Band – the Upper 700 MHz Band C Block – we will require licensees to allow
customers, device manufacturers, third-party application developers, and others to use or develop
the devices and applications of their choice, subject to certain conditions, as described further
below. We conclude, however, that it would not serve the public interest to mandate, at this
time, requirements for open platforms for devices and applications for all unauctioned
commercial 700 MHz spectrum, or to impose broader requirements, such as wholesale or
interconnection requirements, for the C Block.
196. Rapid deployment and ubiquitous availability of broadband services across the
country are among the Commission’s most critical policy objectives. Broadband technology is a
key driver of economic growth. The ability to share increasing amounts of information at greater
speeds increases productivity, facilitates interstate commerce, and drives innovation. Perhaps
most important, broadband is changing how we communicate with each other, how and where
we work, how we educate our children, and how we entertain ourselves.
197. Wireless service is becoming an increasingly important platform for broadband
access. Over the past few years, U.S. service providers have been moving beyond secondgeneration (2G) wireless network technologies to deploy next-generation, or third-generation
(3G), network technologies. These technologies enable them to offer data services at higher data
transfer speeds, and to offer mobile broadband services that provide for a variety of new
capabilities and services, including broadband Internet access. As part of this evolution, “cell
phones” are evolving into multi-media devices capable of surfing the web, sending e-mails,
playing songs, taking pictures, playing games, and streaming video. As these devices become
more sophisticated, consumers have more opportunities to access broadband services both at
home and on the go.
452
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-33,
Policy Statement, 20 FCC Rcd 14986, 14988 (2005) (Broadband Policy Statement).
453
Skype Petition at 9-12; see Use of the Carterfone Device in Message Toll Telephone Service, 13 FCC 2d 420
(1968). Skype states that it offers consumers a way to reduce the costs of their conversations through VoIP and in
so doing, stimulates demand for wireless networks. It also claims that it has mobile versions of its software that are
optimized for wireless networks. Skype Skype Petition Reply Comments at 15-16.
454
Skype Petition at 28-32.
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198. Although wireless broadband services have great promise, we have become
increasingly concerned that certain practices in the wireless industry may constrain consumer
access to wireless broadband networks and limit the services and functionalities provided to
consumers by these networks. In our Wireless Broadband Classification Order, we recognized
that wireless IP-based multimedia content and services are typically sold through a service
provider-branded, service provider-controlled portal.455 We also noted that “in some cases,
providers use filters to limit the web sites that a customer can access, and, in other cases,
subscribers can enter any URL using a handset but the site may not be viewable due to software,
processing, or other constraints of the device.”456 In contrast, wireless broadband Internet access
services for laptop computers typically allow consumers to access the same applications that
would be available had they chosen a cable or wireline broadband Internet access connection.
199. We are also concerned that wireless service providers appear to have required that
equipment manufacturers disable certain capabilities in mobile devices, such as Wi-Fi
capabilities. Technologically, mobile devices capable of accessing 3G wireless networks can
also incorporate broadband Wi-Fi capabilities.457 The inclusion of Wi-Fi capabilities in 3G
wireless devices could improve the consumer experience by providing faster broadband data
rates in the vicinity of Wi-Fi “hotspots” and reducing network congestion. Despite these
technological possibilities and potential consumer advantages, wireless handsets with Wi-Fi
capabilities have been largely unavailable in the United States for reasons that appear unrelated
to reasonable network management or technological necessity.
200. The Commission generally relies on the competitive marketplace to deliver the
benefits of choice, innovation and affordability to American consumers, and regulates only when
market driven forces alone may not achieve broader social goals. The Commission has found
that the Commercial Mobile Radio Services (CMRS) market is effectively competitive, and that
competitive pressures continue to result in the introduction of innovative pricing plans and
service offerings.458 We have not found, however, that competition in the CMRS marketplace is
ensuring that consumers drive handset and application choices, especially in the emerging
wireless broadband market. For example, while it is easy for consumers to differentiate among
providers by price, most consumers are unaware when carriers block or degrade applications and
of the implications of such actions, thus making it difficult for providers to differentiate
themselves on this score.459 As a result, while many commenters assert that market forces
455
See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT
Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5908 ¶ 16 (2007).
456
Id.
457
Tim Wu, Wireless Net Neutrality: Cellular Carterfone and Consumer Choice in Mobile Broadband, New
America Foundation, Feb. 2007, at 9-12 .
458
Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 06-17,
Eleventh Report, 21 FCC Rcd 10947, 10950 ¶¶ 2-3 (2006) (Eleventh Annual CMRS Competition Report).
459
Tim Wu, Wireless Net Neutrality: Cellular Carterfone and Consumer Choice in Mobile Broadband, New
America Foundation, Feb. 2007, at 38 http://ssrn.com/abstract=962027 (“[T]aking the time to do comparisons on the
basis of whether the carrier cripples technological feature sets is something only a select group of consumers have
the time or expertise to do.”).
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require that wireless providers support handsets and applications that consumers want,460 there is
evidence that wireless service providers nevertheless block or degrade consumer-chosen
hardware and applications without an appropriate justification.461
201. We do not decide in this proceeding whether competition in the CMRS market
generally is sufficient to ensure that consumers have the ability to use wireless devices and
applications of their choice in the emerging wireless broadband market, especially since these
questions are being considered more broadly in other proceedings.462 Given the nature of this
spectrum and the lack of additional similar spectrum capacity that can be made available in the
near future, however, what we decide here is important to the evolution of the next generation of
wireless technology, industry structure and institutional arrangements. This auction provides a
window of opportunity to have a significant effect on the next phase of mobile wireless
technological innovation, and on the evolution of market and institutional arrangements—such as
arrangements regarding open platforms for devices and applications to the benefit of consumers
—that will go along with that innovation. As a result, in light of the evidence suggesting that
wireless service providers are blocking or degrading consumer-chosen hardware and applications
without an appropriate justification, we believe that it is appropriate to take a measured step to
encourage additional innovation and consumer choice at this critical stage in the evolution of
wireless broadband services, by removing some of the barriers that developers and
handset/device manufacturers face in bringing new products to market. By fostering greater
balance between device manufacturers and wireless service providers in this respect, we intend
to spur the development of innovative products and services.
202. To promote innovation in this spectrum band from the outset, we find it is
reasonable to impose certain conditions on the C Block in the Upper 700 MHz Band to provide
open platforms for devices and applications. While the Commission strives to apply a consistent
regulatory framework to like services, that does not obligate us to treat all spectrum-based
services identically.463 The Commission has applied different spectrum regulatory models as
warranted by different market conditions, ranging from licenses that largely grant exclusive
rights to use the spectrum to unlicensed approaches in which access to the spectrum is open and
subject to minimal rules.464 Particularly in developing markets, regulatory policies have played
460
See, e.g., Verizon Wireless July 25 Ex Parte, Attachment at 7-15.
461
See, e.g., PISC 700 MHz Further Notice Comments at 7; MoveOn.org Reply Comments at 1.
462
We note, for example, that the competitive characteristics of the wireless voice market may not be the same as
those of the wireless broadband market.
463
We disagree with Verizon Wireless’s contention that an open access requirement would be inconsistent with the
Commission’s precedent of deregulating broadband services and treating broadband platforms similarly. Verizon
Wireless July 23 Ex Parte at 7-8. As we note below, the Commission has not yet made a finding regarding whether
to apply open access requirements to wireless broadband services generally, and in this Order, defers that
determination to the appropriate pending proceedings.
464
See, e.g., Unlicensed Operation in the TV Broadcast Bands, , ET Docket No. 04-186, First Report and Order and
Further Notice of Proposed Rule Making, 21 FCC Rcd 12266 (2006) (Unlicensed Operation in the TV Broadcast
Band First Report and Order); Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151,
Memorandum Opinion and Order, 22 FCC Rcd 10421, 10425-30 (2007) (3650 MHz Reconsideration Order);
Revision of Part 15 of the Commission’s Rules Regarding Ultra-Wideband Transmission Systems, ET Docket No.
98-153, First Report and Order, 17 FCC Rcd 7435, 7441-46 (2002).
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an important role in encouraging new competitive services to emerge. Many technologies, such
as Wi-Fi services, have developed as a result of regulatory policies established by the
Commission in particular spectrum bands. Rather than adopt a single regulatory model to assign
spectrum rights in all bands, the Commission has pursued a balanced spectrum policy that
recognizes that, in certain instances, it may be necessary to vary the regulation of spectrum use to
achieve certain critical public interest objectives. 465
203. We are taking a similarly balanced approach here by requiring the licenses for one
of the remaining spectrum blocks to be auctioned to provide open platforms for devices and
applications. We are mindful that some of the restrictive practices set forth in the record appear
to be used by wireless service providers for purposes other than simply protecting the network
from harm. We also recognize supporters’ argument that the 700 MHz Band offers an
opportunity to encourage innovation in network devices and applications in spectrum with
valuable propagation characteristics, without adversely affecting 700 MHz Band licensees’
network operations or viability.466 The 700 MHz Band provides a rare opportunity to implement
pro-consumer concepts without disrupting an existing service, given that there will not be any
incumbents in the band after the DTV transition and that bidders for the spectrum will have
notice of these obligations at the outset. In these circumstances, we conclude that prohibiting a
provider’s ability to unreasonably limit applications and devices on its network in a portion of
the 700 MHz Band is both appropriate and feasible.
204. We believe that the C Block is the most reasonable block for applying a new
regulatory model that attempts to give consumers additional choices. The C Block is a large 22megahertz block (comprised of paired 11-megahertz blocks). As discussed above, we believe
that a block of this size and scope will provide an environment conducive to the development
and deployment of 4G services designed to compete with wireline broadband alternatives.
Imposing such a requirement on a band with these characteristics should provide an opportunity
for innovators and entrepreneurs to develop equipment and applications that require substantial
bandwidth to realize their full potential. It should also provide sufficient potential market
penetration to attract investment and achieve economies of scale in the equipment marketplace.
Without access to a block capable of supporting high data rates and the potential for substantial
market penetration, the requirements we impose here would be less likely to result in rapid
innovation at the edge of the network. Thus, more than any other spectrum block in the 700
MHz Band, it is the C Block that would benefit from our intervention to help ensure that access
to anticipated 4G services is not unduly inhibited or foreclosed.
205. While we adopt a requirement for the C Block licensees to provide open
platforms for devices and applications, we decline at this time to impose these same principles or
465
3650 MHz Reconsideration Order, 22 FCC Rcd 10421 (2007); Unlicensed Operation in the TV Broadcast Bands
First Report and Order, 21 FCC Rcd 12266 (2006); Spectrum Policy Task Force Report, ET Docket No. 02-135
(2002). Also see the special requirements adopted herein for the Upper 700 MHz D Block, related to its operation
under a Public/Private Partnership.
466
E.g., PISC notes that the licensing of the new 700 MHz spectrum presents a unique opportunity to affirmatively
facilitate the creation of new broadband competitors. PISC also claims that favorable propagation characteristics of
the 700 MHz spectrum—compared with the higher frequencies allocated to the PCS, AWS and unlicensed wireless
services—could make this spectrum “many consumers’ primary source of high speed Internet access and low-cost
voice service.” PISC 700 MHz Further Notice Comments at 14-15, and App. A at 15.
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other openness obligations broadly in the 700 MHz Band, as recommended in PISC’s open
access and Google’s broader proposals.467 Given the state of the record, we believe that a more
measured approach is appropriate. While the open platform requirement for devices and
applications in the C Block holds the potential to foster innovation, we cannot rule out the
possibility that such a requirement may have unanticipated drawbacks as well. Therefore, we
think that it is appropriate to impose the open platform requirement only on a limited basis.
While the record in this proceeding regarding the potential merits or drawbacks of the open
platform requirement for devices and applications is not so clear as to warrant adopting such
conditions for the entire 700 MHz Band, the approach that we take today will allow both the
Commission and industry to observe the real-world effects of such a requirement. Moreover, we
note that to the extent the results of our C Block requirements prove attractive to consumers, we
would anticipate that providers in other 700 MHz Band blocks and other bands will have
competitive incentives to offer similar choices. We disagree with PISC’s suggestions that the
wireless market is not competitive.468 We also reject Google’s argument that mandatory
wholesale and other broad regulatory models are necessary at this time to provide incentives for
new entry and innovation. We have not established wireless regulatory policies based solely on
“leveling the playing field” against incumbent operators, as suggested by Google, and we decline
to do so here.469 In addition, the record is not sufficient to adopt broader obligations here or even
to decide the specifics of such mandates.
206. Accordingly, consistent with the broadband principles set out above, we will
require only C Block licensees to allow customers, device manufacturers, third-party application
developers, and others to use or develop the devices and applications of their choosing in C
Block networks, so long as they meet all applicable regulatory requirements and comply with
reasonable conditions related to management of the wireless network (i.e., do not cause harm to
the network). Specifically, a C Block licensee may not block, degrade, or interfere with the
ability of end users to download and utilize applications of their choosing on the licensee’s C
Block network, subject to reasonable network management. We anticipate that wireless service
providers will address this requirement by developing reasonable standards, including through
participation in standards setting organizations, as discussed below. Finally, for the reasons
noted above, we will not impose additional requirements on the C Block, including wholesale
and interconnection requirements.
207. Commission’s Authority to Impose Requirements for Open Platforms for Devices
and Applications. As a general matter, the Commission has the authority to establish license
conditions and operational obligations, such as the requirements we adopt here, if the condition
467
See PISC 700 MHz Further Notice Comments at 12-29 (urging adoption of wholesale service, net neutrality and
Carterfone requirements); Google July 9 Ex parte at 4-9 (advocating “open platform” requirements).
468
Eleventh Annual CMRS Competition Report, 21 FCC Rcd at 10950-51 ¶¶ 1-5, 11029-31 ¶¶ 213-216.
469
Google July 9 Ex Parte at 4 (supporting the need for open access to level the playing field because of large
incumbents’ “significant built-in advantages [of] economic and operational barriers to entry”); Verizon Wireless
July 24 Ex Parte at 2 (opposing Google’s “level playing field” argument). The Commission has historically
required that, to the extent practical, technical and operational rules should be comparable for CMRS services.
However, we have also recognized that with different policy goals – or under different circumstances – we may
come to different conclusions regarding the extent of competition. See Implementation of Sections 3(n) and 332 of
the Communications Act, Regulatory Treatment of Mobile Services, 9 FCC Rcd 7988, ¶ 14 (1994).
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or obligation will further the goals of the Communications Act without contradicting any basic
parameters of the agency’s authority.470 As we have demonstrated above, the record is sufficient
to conclude that current practices in the industry may be impeding the development and
deployment of devices and applications that consumers want to use. Thus, a requirement to
allow consumer use of any such devices and applications (limited by reasonable requirements to
protect the network and to enable the wireless service provider to comply with its regulatory
obligations) in a band like the C Block holds the potential to foster the development of
innovative devices and applications, and as a result, promises to benefit consumers. This type of
initiative – in terms of purpose, scope, and method of implementation – falls squarely within a
number of the Commission’s statutory sources of authority.471
208. Verizon Wireless raises a host of legal arguments with respect to the
Commission’s statutory authority to implement such open access requirements. It argues, among
other things, that open access requirements for wireless services place unnecessary burdens on
the wireless industry and impair the value of the affected spectrum, and that therefore such
regulation is contrary to the public interest as well as inconsistent with various goals specified in
the Communications Act, including Section 309(j).472 It challenges our authority to impose open
access requirements on the ground that such requirements would be inconsistent with various
Title III-based obligations, such as E911 requirements.473 It also argues that imposing open
access requirements is inconsistent with the Commission’s prior determinations regarding the
470
See, e.g., 47 U.S.C. § 303 (stating that if “the public convenience, interest, or necessity requires [, the
Commission] shall . . . (r) . . . prescribe such restrictions and conditions, not inconsistent with law, as may be
necessary to carry out the provisions of this Act”); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1048 (7th
Cir. 1992) (Communications Act invests Commission with “enormous discretion” in promulgating licensee
obligations that the agency determines will serve the public interest).
471
See, e.g., 47 U.S.C. § 309(j)(3) (requiring that, “in specifying eligibility and other characteristics of . . . licenses
[to be issued by competitive bidding] . . . , and in designing the methodologies for use under this subsection, the
Commission shall include safeguards to protect the public interest in the use of the spectrum and shall seek to
promote the purposes specified in section 1 of this Act and [in six] . . . objectives [enumerated in subsection
(j)(3)(A)-(F)]”); 47 U.S.C. § 309(j)(3)(A) & (D) (listing as subsection (j)(3) objectives “(A) the development and
rapid deployment of new technologies, products, and services for the benefit of the public . . . without administrative
or judicial delays; . . . [and] (D) efficient and intensive use of the electromagnetic spectrum”); 47 U.S.C. § 151
[Section 1 of the Communications Act] (stating that one of the purposes for the creation of the FCC is to foster “a
rapid, efficient . . . radio communication service with adequate facilities at reasonable charges”); 47 U.S.C. § 303
(authorizing the Commission, “as public interest, convenience, or necessity requires,” to “(b) [p]rescribe the nature
of the service to be rendered by each class of licensed stations and each station within any class . . . (g) [s]tudy new
uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective
use of radio in the public interest”); 47 U.S.C. § 157 nt (directing the FCC to encourage the deployment of advanced
telecommunications capability through regulatory measures that promote competition or remove barriers to
infrastructure investment). In addition, the Communications Act provides the Commission with broad powers to
take action necessary to execute its functions and to carry out the provisions of the Act. 47 U.S.C. §§ 154(i) (stating
that the Commission “may perform any and all acts, make such rules and regulations, and issue such orders, not
inconsistent with this Act, as may be necessary in the execution of its functions”) and 303(r) (listing, as one of the
Commission’s general powers, the authority to “[m]ake such rules and regulations and prescribe such restrictions
and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act”).
472
Verizon Wireless July 24 Ex Parte at 7-8.
473
See Verizon Wireless July 24 Ex Parte at 19-20.
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regulation of broadband services,474 violates various sections of the Communications Act, and
affects the First Amendment rights of existing providers. 475 Finally, Verizon Wireless asserts
that we are setting aside this spectrum as a “pioneer’s preference block,” or providing a special
bidding credit to new entrants in the upcoming auction for this spectrum.476
209. Verizon Wireless’s arguments fail for two primary reasons: (1) many of its
arguments are directed at a broader set of openness requirements than those that we adopt here;
and (2) Verizon Wireless’s other arguments are either based on erroneous interpretations of
relevant statutory provisions or erroneous factual assumptions.
210. To begin with, many of Verizon Wireless’s objections focus on broader openness
requirements than what is contemplated here. Thus, Verizon Wireless argues that the
Commission is attempting to impose the same regulatory access model on wireless service
providers that Congress, in the Section 251 interconnection provisions of the Communications
Act, applied to the ILECs. According to Verizon Wireless, this approach contradicts the
Commission’s “Congressional mandate to apply a light regulatory touch to the wireless industry”
and would “unwind the careful regulatory balance struck by Congress by applying ILEC
obligations piecemeal on non-ILECs.”477 The Commission, however, is not promulgating new
interconnection (or quasi-interconnection) requirements for wireless providers here. Rather, the
requirements that we adopt today are limited to devices and applications. Section 251478 simply
does not address restrictions by ILECs and CLECs on the use of non-provider supplied devices
or applications. Verizon Wireless’s concern that the Commission is extending Section 251
requirements to wireless service providers is, therefore, without merit.
211. Similarly, to the extent that Verizon Wireless’s arguments rely on the alleged
negative effects of (and/or lack of need for) the broader requirements proposed by PISC and
Google, these arguments are moot in light of the limited focus of the requirements that we
actually adopt. Accordingly, we need not address whether such broad requirements would, in
fact, work against the goals of Section 706 of the 1996 Telecommunications Act,479 or Sections
4(i), 303(r), or 309(j)(3) of the Communications Act.480
212. Verizon Wireless further asserts that the very statutory provisions we have cited
as the sources of our authority to promulgate these limited openness requirements in fact bar us
from doing so.481 As we have explained in detail above, however, we disagree with Verizon
474
Verizon Wireless July 24 Ex Parte at 7-8.
475
Id. at 12-15.
476
Verizon Wireless July 24 Ex Parte at 20-21.
477
Verizon Wireless July 24 Ex Parte at 16.
478
Id.
479
47 U.S.C. § 157 nt (directing the Commission to encourage the deployment of advanced telecommunications
capability through regulatory measures that promote competition or remove barriers to infrastructure investment).
480
47 U.S.C. §§ 154(i), 303(r), 309(j)(3).
481
For example, Verizon Wireless points to these alleged negative effects in arguing that open access requirements
work against the Section 309(j)(3)(D) objective of promoting efficient and intensive use of the spectrum and are
unsupported by the Commission’s Section 4(i) and 303(r) powers to impose regulations that are necessary to carry
(continued….)
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Wireless’s assessment of the need for and likely effects of limited openness requirements. We
agree with Verizon Wireless that one of the main statutorily based principles of our regulatory
approach is to limit our regulatory intervention as much as possible and to rely, in the first
instance, on marketplace forces to direct the development of the communications industry.482
However, Verizon Wireless’s citation of generalized statements to this effect and its references
to our application of this principle to particular aspects of the wireless industry not at issue in this
proceeding do not alter our conclusion here. Limited openness requirements are an appropriate
response to certain practices in the emerging wireless broadband market and are consistent with
the Commission’s general approach toward regulation.
213. Verizon Wireless also suggests that adoption of limited openness requirements
would exceed the Commission’s statutory authority because such requirements would frustrate
the objectives set forth in Section 309(j)(3)(C) and (D). More specifically, Verizon Wireless
contends that these requirements will reduce the value of the spectrum, and will undermine the
statutory goals of recovering for the public a portion of the value of the spectrum and of
promoting efficient and intensive use of the spectrum.
214. However, we do not agree with Verizon Wireless that the requirements we adopt
here will necessarily frustrate any of the objectives set forth in Section 309(j)(3). It is not clear
that these requirements will significantly deter bidders and thus hinder in any meaningful way
the Commission’s ability to recover for the public “a portion of the public spectrum resource.”
Additionally, we do not consider the possible reduction in the monetary value of the spectrum
contradictory to the letter or spirit of the objective of subsection (j)(3)(C), since that objective
only seeks recovery of “a portion of the value of the public spectrum resource.” Indeed, the
focus of the statutory language on recovery of “a portion” rather than the full value of the
spectrum supports the conclusion that the Commission serves the objective of Section
309(j)(3)(C) if it recovers less than maximum market value if necessary to obtain the benefits of
other statutory objectives.483 As for the Section 309(j)(3)(D) objective of promoting the efficient
and intensive use of the electromagnetic spectrum, we believe that our use of these requirements
here may result in a net gain of efficiency, given the potential that it holds for encouraging the
(Continued from previous page)
out the provisions of the Communications Act and to execute the agency’s functions. Verizon Wireless July 24 Ex
Parte at 17-20.
482
For example, our 1992 order permitting the bundling of handsets with wireless service contracts was based on the
status of the wireless marketplace at that time, not on any limit to our regulatory authority. Interestingly, that order
noted that “current nondiscrimination requirements preclude a cellular carrier from refusing to provide service to a
customer on the basis of what CPE the customer owns,” which is one of the very objectives we seek to obtain here.
See Bundling of Cellular Customer Premises Equipment and Cellular Service, CC Docket No. 91-34, Report and
Order, 7 FCC Rcd 4028, 4032 (1992).
483
Cf. 47 U.S.C. § 309(j)(7)(A) (“In making a decision pursuant to Section 303(c) of this title to assign a band of
frequencies to a use for which licenses or permits will be issued pursuant to this subsection, and in prescribing
regulations pursuant to paragraph (4)(C) of this subsection, the Commission may not base a finding of public
interest, convenience, and necessity on the expectation of Federal revenues from the use of a system of competitive
bidding under this subsection.”); id. § 309(j)(7)(B) (“In prescribing regulations pursuant to paragraph (4)(A) of this
subsection, the Commission may not base a finding of public interest, convenience, and necessity solely or
predominantly on the expectation of Federal revenues from the use of a system of competitive bidding under this
subsection.”).
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development of new and innovative devices and applications in connection with such spectrum
use.484
215. But even if Verizon Wireless’s claims about spectrum value and network
efficiency were correct, Section 309(j)(3) requires the Commission to balance several statutory
objectives.485 Therefore, Section 309(j)(3) does not preclude regulation that may serve one of
these objectives more than another.486 Looking to the specific goals set forth in Section
309(j)(3), we believe the requirements for open platforms for devices and applications adopted
here further the objectives of Section 309(j)(3)(A) – developing and rapidly deploying new
technologies, products, and services for the benefit of the public. We believe the benefits
stemming from these requirements outweigh whatever possible negative effect they might have
with respect to the other objectives set forth in the statutory provision. Thus, even if the limited
requirements we impose today have some potential for reducing the monetary value and
decreasing efficient use of spectrum in some respects, we believe that they are in the public
interest and consistent with Section 309(j)(3).487
216. Verizon Wireless also challenges our authority to impose open access
requirements on the ground that such requirements would be inconsistent with various Title IIIbased obligations that the Commission has imposed on wireless providers, such as handset radio
frequency emission standards, CALEA obligations, and E911 requirements, which, according to
Verizon Wireless, would be difficult or impossible to meet under an open access regime for
devices and applications.488 As reflected below, however, we have taken this concern into
account. Wireless providers are not required to permit attachment of any device or application
that would interfere with the provider’s obligations to comply with applicable regulatory
requirements, including those mentioned above. In addition, while Verizon Wireless also claims
that our requirements are inconsistent with the Title III regulatory regime that “is premised on a
484
We also reject Verizon Wireless’s assertion that the requirements we adopt here are designed to unjustly enrich
Google in violation of Section 309(j)(3)(C). See Verizon Wireless July 24 Ex Parte at 17. As indicated above, we
do not implement today all of the requirements proposed by Google, and our rules are designed to enhance
innovation and consumer choice, not to benefit any particular company.
485
See Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s
Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Order on Reconsideration of the Second
Report and Order, 21 FCC Rcd 6703, 6708, ¶ 12.
486
See, e.g., U.S. Airwaves, Inc. v. FCC, 232 F.3d 227 (D.C. Cir. 2000) (recognizing that statutory goals of Section
309(j)(3), as well as goals of maintaining the integrity of the auctions process and ensuring fairness to all market
participants, may be competing and potentially in opposition, and that a “regulatory decision in which the
Commission must balance competing goals is . . . [nevertheless] valid if the agency can show that its resolution
‘reasonably advances at least one of those objectives and [that] its decisionmaking process was regular.’ Fresno
Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C. Cir. 1999)”); Melcher v. FCC, 134 F.3d 1143, 1154 (D.C. Cir.
1998) (recognizing that even within one of the Section 309(j)(3) objectives – subsection (B) – Congress set forth “a
number of potentially conflicting objectives,” and that the Commission has the discretion to decide how much
precedence particular policies will be granted when several will be implicated in a single decision).
487
For similar reasons, we believe that our decision to impose requirements for open platforms for devices and
attachments is consistent with other statutory provisions that direct the Commission to promote new and advanced
technologies, see, e.g., 47 U.S.C. § 157, Pub. L. No. 104-104, § 706, 110 Stat. 56 (1996), notwithstanding Verizon
Wireless’s claim to the contrary, see Verizon Wireless July 24, 2007 Ex Parte at 15-16.
488
See Verizon Wireless July 24, 2007 Ex Parte at 19-20.
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licensee’s ability (and corresponding responsibility) to ensure the proper operation of all
transmitters operating on its spectrum,”489 this is not the case. We specifically allow providers to
utilize reasonable network management practices and “restrict particular non-carrier devices and
applications on their networks, specifically to ensure the safety and integrity of their
networks.”490
217. We also reject arguments by Verizon Wireless that the requirements that we adopt
today for devices and applications for the Upper 700 MHz C Block violate the First
Amendment.491 First, Verizon Wireless has not demonstrated that our requirement that licensees
in the Upper 700 MHz Band C Block allow customers, device manufacturers, third-party
application developers, and others to use or develop devices and applications of their choice
(subject to certain limitations) implicates the First Amendment. Our rules regulate the
functionality of the spectrum and the conduct of the licensee – activities that we believe are “not
sufficiently imbued with elements of communication to fall within the scope of the First …
Amendment.”492 Indeed, Verizon Wireless has cited no authority supporting the proposition that
activities such as “locking” handsets to prevent their transfer from one system to another or
blocking Wi-Fi access, MP3 playback ringtone capability, or other applications that compete
with wireless providers’ own offerings are protected speech under the First Amendment.
Moreover, our rules in no way limit the licensee in the Upper 700 MHz C Block from offering its
preferred devices and applications to its customers; rather, the licensee simply will not be able to
force customers to use such devices or applications if those customers would prefer to use others.
493
To the extent that a choice of device or application implicates First Amendment values at all,
we think that our requirements promote rather than restrict expressive freedom because they
provide consumers with greater choice in the devices and applications they may use to
communicate. Accordingly, we believe that Verizon Wireless has not met its burden of
demonstrating that any First Amendment scrutiny is even applicable to our provisions for open
platforms for devices and applications.494
218. However, even if these rules do implicate the First Amendment, they withstand
the applicable “intermediate scrutiny” test. The Supreme Court has held that “[a] content-neutral
regulation will be sustained under the First Amendment if it advances important governmental
489
Id. at 19.
490
See infra, ¶ 223.
491
We note that many of Verizon Wireless’s First Amendment arguments relate to proposed open access
requirements that we do not adopt today, such as open access requirements for networks and services. See infra, ¶¶
222-228, and Verizon Wireless July 24 Ex Parte at 12-14. We address only those arguments that are relevant to the
requirements we adopt, which are limited to devices and applications.
492
Spence v. State of Washington, 418 U.S. 405, 409 (1974).
493
Cf. Hill v. Colorado, 530 U.S. 703, 716-717 (2000) (“The unwilling listener’s interest in avoiding unwanted
communication has been repeatedly identified in our cases.”) and Rowan v. U.S. Post Office Dept., 397 U.S. 728,
737 (1970) (“Nothing in the Constitution compels us to listen or view any unwanted communication.”).
494
See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, n.5 (1984) (“Although it is common to
place the burden upon the Government to justify impingements on First Amendment interests, it is the obligation of
the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even
applies.”).
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interests unrelated to the suppression of free speech and does not burden substantially more
speech than necessary to further those interests.”495 First, our regulations advance an important
governmental interest unrelated to the suppression of free speech. As we note above, there is
evidence in the record that wireless service providers block or degrade consumer-chosen
hardware and applications, including Wi-Fi capabilities, for reasons that appear unrelated to
reasonable network management or technological necessity. We believe that imposing
requirements related to open platforms for devices and applications to the large 22-megahertz C
Block will promote innovation in new technologies and products and help ensure that consumers
drive handset and application choices. This balanced approach is intended to achieve the public
interest objectives we outline above and thus advances important governmental interests.
219. With respect to the second prong of the intermediate scrutiny test, the
requirements do not burden substantially more speech than necessary to further those interests.
These rules will only apply to a 22-megahertz block of spectrum in the Upper 700 MHz band.
We impose these requirements in this particular block so that innovators and entrepreneurs will
be able to develop equipment and applications that require substantial bandwidth to realize their
full potential. As we indicated above, without access to a block capable of supporting high data
rates and the potential for substantial market penetration, the requirements we impose here would
be less likely to result in rapid innovation at the edge of the network.496 Furthermore, we limit
our requirements to licenses large enough to allow the licensees to achieve economies of scale
that will minimize the ongoing operating costs of determining whether particular third-party
equipment and applications would operate satisfactorily on their networks. Significantly, we will
not disrupt an existing service because there will be no incumbents in the band after the DTV
transition. In addition, bidders will have notice of these obligations at the outset. Finally, we
reiterate that our rules do not limit the wireless provider’s ability to offer its preferred devices
and applications on its network in the C Block spectrum. Rather, our rules ensure that in the C
Block spectrum, consumers can choose to use devices and applications offered by the C Block
licensee or opt to use devices and applications offered by others. Such an approach is clearly
less restrictive than directly limiting the devices and applications that the C Block licensee can
provide.497
220. In addition, for the same reasons that we discuss above, we reject Verizon
Wireless’s argument that the provisions we adopt today constitute an impermissible burden on
commercial speech. As a threshold issue, we do not believe that the conduct we are regulating
implicates protected commercial speech. Verizon Wireless cites no precedent to support its
implicit assertion that it has a constitutional right to exclude devices and applications from its
network that are not part of its branding campaign. We are unaware of any precedent, for
instance, suggesting that the application of Carterfone principles to the wireline telephone
network violates providers’ free speech rights. But even if Verizon Wireless does have such a
495
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189 (1997).
496
See supra, ¶ 204.
497
See Mainstream Marketing Services, Inc. v. FTC, 358 F.3d 1228, 1242 (10th Cir. 2004), citing Rowan v. United
States Post Office Dep’t, 397 U.S. 728 (1970) and Martin v. City of Struthers, 319 U.S. 141 (1941) (“The Supreme
Court has repeatedly held that speech restrictions based on private choice (i.e., an opt-in feature) are less restrictive
than laws that prohibit speech directly.”).
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right, our regulations pass muster under the test governing First Amendment challenges to
commercial speech,498 for the same reasons we find that they withstand intermediate scrutiny
applicable to content-neutral regulation as described above.
221. Finally, we reject Verizon Wireless’s arguments that we are setting aside this
spectrum as a “pioneer’s preference block,” or providing a special bidding credit to new entrants
in the upcoming auction for this spectrum.499 Our imposition of requirements for open platforms
for devices and applications is intended not to benefit particular companies, but consumers, who
will have the freedom of using any device or application they choose, subject to certain
conditions. Unlike the Commission’s former pioneer preference program where a license could
be obtained outside of the auction process under certain circumstances, the C Block will be
subject to auction and open to all qualified bidders.
222. Scope of the requirement for open platforms for devices and applications.
Wireless service providers subject to this requirement will not be allowed to disable features or
functionality in handsets where such action is not related to reasonable network management and
protection, or compliance with applicable regulatory requirements.500 For example, providers
may not “lock” handsets to prevent their transfer from one system to another. We also prohibit
standards that block Wi-Fi access, MP3 playback ringtone capability, or other services that
compete with wireless service providers’ own offerings. Standards for third-party applications
or devices that are more stringent than those used by the provider itself would likewise be
prohibited. In addition, C Block licensees cannot exclude applications or devices solely on the
basis that such applications or devices would unreasonably increase bandwidth demands. We
anticipate that demand can be adequately managed through feasible facility improvements or
technology-neutral capacity pricing that does not discriminate against subscribers using thirdparty devices or applications. In that regard, we emphasize that C Block licensees may not
impose any additional discriminatory charges (one-time or recurring) or conditions on customers
who seek to use devices or applications outside of those provided by the licensee. Finally, C
Block licensees may not deny access to a customer’s device solely because that device makes
498
See Zaunderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 637 (1985) (“[C]ommercial
speech” is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that
afforded “noncommercial speech.”); see also Central Hudson v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 564
(1980), which provides a three-part test applicable to regulations restricting non-misleading commercial speech that
relates to lawful activity: (1) the government must assert a substantial interest to be achieved by the regulation; (2)
the regulation must directly advance that governmental interest, meaning that it must do more than provide “only
ineffectual or remote support for the government’s purpose;” and (3) the regulation must be narrowly tailored not to
restrict more speech than necessary. We believe our analysis above clearly demonstrates that (1) a substantial
interest is achieved by our rules for open platforms for devices and attachments; (2) the rules directly advance the
government interest; and (3) the rules are narrowly tailored.
499
Verizon Wireless July 24 Ex Parte at 20-21.
500
We note that the Copyright Office has granted a three-year exemption to the anti-circumvention provisions of
Section 1201 of the Digital Millennium Copyright Act, for “computer programs in the form of firmware that enable
wireless telephone handsets to connect to wireless telephone communication network, when circumvention is
accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.” It found
that software locks on mobile handsets adversely affect the ability of consumers to make non-infringing use of the
software in those handsets. 17 Fed. Reg. 68472 (Nov. 27, 2006). We also note that a court appeal of the exemption
ruling is ongoing.
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use of other wireless spectrum bands, such as cellular or PCS spectrum.501 However, we also
note that, in accepting a multi-band device for use on its network, a C Block licensee is not
required to extend the requirement for open platforms for devices and applications to other
spectrum bands on which the provider operates.
223. We emphasize that we are not requiring wireless service providers to allow the
unrestricted use of any devices or applications on their networks. In particular, we are mindful
of the risks network operators face in protecting against harmful devices and malicious software.
Wireless service providers may continue to use their own certification standards and processes to
approve use of devices and applications on their networks so long as those standards are
confined to reasonable network management. For example, providers are free to choose their air
interface technology, and to deny service to devices or applications that cannot operate on the
same technology, since such a restriction permits significant network efficiencies without
significantly reducing consumer access to services and features.502 We also recognize that
wireless providers have legitimate technical reasons to restrict particular non-carrier devices and
applications on their networks, specifically to ensure the safety and integrity of their networks.
In particular, we believe that it is reasonable for wireless service providers to maintain network
control features that permit dynamic management of network operations, including the
management of devices operating on the network, and to restrict use of the network to devices
compatible with these network control features. Standards to ensure that network performance
will not be significantly degraded would also be appropriate.503
224. We will not at this time specify a particular process for C Block licensees to
develop reasonable network management and openness standards, but we will require certain
minimum steps to ensure that device manufacturers and application developers have the ability
to design products for this spectrum in a timely manner. Specifically, a C Block licensee must
publish504 standards no later than the time at which it makes such standards available to any
preferred vendors (i.e., vendors with whom the provider has a relationship to design products for
the provider’s network). We also require the C Block licensee to provide to potential customers
notice of the customers’ rights to request the attachment of a device or application to the
licensee’s network, and notice of the licensee’s process for customers to make such requests,
including the relevant network criteria. We expect that any standards adopted by a C Block
licensee will be non-proprietary, such that they would be open to any third party vendors and that
the standards applied to third parties will be no more restrictive than those applied to the
provider’s preferred vendors. We believe that standards transparency should greatly reduce the
501
See Google July 24 Ex Parte at 3-4 (raising concerns about whether providers can avoid an open access
requirement by refusing to attach multimode devices).
502
We also note that wireless service providers may continue to use their choice of operating systems, and are not
required to modify their network infrastructure or device-level operating systems to accommodate particular devices
or applications. Device manufacturers and applications developers are free to design their equipment and
applications to work with providers’ network infrastructure and operating systems, and must be given the applicable
parameters as part of the standards provided to third parties.
503
For example, a provider could exclude devices such as signal boosters and repeaters to the extent they are
inconsistent with the technical or operational parameters of the network.
504
Publication could be accomplished, for example, by posting on the provider’s website.
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potential for manipulative “white-listing,” i.e., providers creating complex and vague
qualification and approval processes for third parties before approval to attach devices or run
applications on the network. In addition to publishing any applicable standards, providers must
establish a reasonable process for expeditiously reviewing requests from manufacturers,
application developers and consumers to employ devices and applications on their networks. If a
provider denies such a request, it must offer a specific explanation and an opportunity for
amendment of the request to accommodate the provider's concerns. Finally, the Commission
will ensure the sufficient openness of any network management practices and selected technical
standards in the event the approach outlined above proves unsatisfactory.
225. While we are not aware of any current industry-wide standards specifically
focusing on network management, we encourage the development of such standards by an
appropriate standard-setting body at the earliest possible date. There is a rich history of
standards-setting bodies whose work draws on industry experts and other interested parties to
ensure that consumer devices operate efficiently in their networks, including, for instance, the
Network Reliability and Interoperability Council (NRIC)505 and the Open Mobile Alliance
(OMA).506 In particular, we encourage the industry, in its development of fourth generation (4G)
air interface standards, to include within those standards reasonable network management criteria
relating to devices and applications. As discussed below, where a provider bases its network
restrictions on industry consensus standards, we would afford the restrictions a presumption of
reasonableness in the event that a complaint is raised with the Commission.
226. Application of other regulatory requirements. We also recognize that wireless
providers play an important role in supporting public safety and homeland security. The
measures we are imposing shall not override wireless service providers’ obligations to ensure
that their networks and devices comply with applicable regulatory requirements (e.g., power and
emission limits, E911, CALEA, etc.). For instance, if a provider is implementing E911 using a
handset-based solution, its obligation to connect handsets to its network would not extend to
handsets that are not capable of providing automatic location information to the network.507
Similarly, if a provider relies on a network-based E911 solution, it can reject any devices or
applications that would hamper or defeat the network-based E911 solution.508 If a network
provider accepts a non-carrier device or application and if the device or application subsequently
causes a violation of our rules, we will apply the same third-party liability provisions as in the
wireline context.509
227. We find that a wireless service provider’s obligations under our hearing aid
compatibility rule, Section 20.19, are not affected by the obligations we impose here. Because
equipment manufacturers have an independent obligation to satisfy our hearing aid compatibility
505
Information about NRIC can be found at http://www.nric.org.
506
OMA’s website is at http://openmobilealliance.org.
507
47 C.F.R. § 20.18.
508
47 C.F.R. § 20.18.
509
See Wireless Communications and Public Safety Act of 1999, Pub. L. No. 106-81, enacted Oct. 26, 1999, at Section
4 (911 Act).
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rules,510 a wireless service provider may not refuse to connect a handset on the grounds that it is
not hearing aid-compatible.511 Under the Commission’s rules, the extent of a wireless service
provider’s compliance with such obligations is not affected by handsets that connect to its
network but that the provider does not itself “offer” to its subscribers. Section 20.19(c)(2)(ii)
currently requires that, by February 18, 2008, non-nationwide providers subject to the rule must
ensure that 50 percent of their models meet a specified hearing aid compatibility standard,
calculated based on the number of handsets a provider “offers nationwide.”512 Thus, handsets
connected to the network but not actually offered by the provider do not alter the extent to which
the provider has complied with this requirement (although the manufacturer of such handsets
will be required to meet the 50 percent requirement).513 Other aspects of the rule applicable to
wireless service providers are similarly tied exclusively to handsets offered, such as the
obligation to make hearing aid compatible handsets available in a provider’s retail store and the
applicability of the de minimis exception.514 Accordingly, because the connection to the network
of a handset that a provider does not offer has no effect on the provider’s compliance with the
Commission’s hearing aid compatibility obligations, the need to comply with Section 20.19 of
our rules would not justify a provider’s refusal to connect a device.
228. We decline at this time to alter our hearing aid compatibility obligations to
specifically impose an obligation on C Block licensees to ensure the hearing aid compatibility of
handsets that are connected to the network but not offered by the provider. Given that we have
not sought comment on whether such an extension is appropriate and, if so, how it should be
implemented, and that hearing aid compatibility obligations will not in any case be imposed in
the 700 MHz Band until after the period for developing a technical standard has passed, taking
such a step now would be premature. In any event, as noted above, once hearing aid
compatibility obligations are extended to the 700 MHz Band, handset manufacturers will have
independent requirements to offer a certain number of hearing aid compatible handsets. We also
believe the requirements themselves will help ensure that customers may use available hearing
aid compatible handsets regardless of whether they are offered by a wireless service provider or
directly by an equipment manufacturer, subject only to the reasonable restrictions described
above. We nevertheless direct the staff to consider in its upcoming report assessing the impact
of our hearing aid compatibility rules whether any additional hearing aid compatibility
510
47 C.F.R. § 20.19(c)(1). This section, among other things, provides that handset manufacturers must “[e]nsure at
least 50 percent of their handset offerings for each air interface offered comply” with the Commission’s hearing aid
compatibility standards by February 18, 2008.
511
We note that wireless service providers in the 700 MHz Band will not immediately be subject to hearing aid
compatibility obligations. Although we determined in the 700 MHz Report and Order that hearing aid compatibility
requirements should be extended to 700 MHz licensees, among others, we declined to do so immediately because of
the lack of an applicable technical standard for the band, and instead established a two-year period for the
development of such a standard. 700 MHz Report and Order, 22 FCC Rcd at 8117-21 ¶¶ 142-150. In addition, we
note that under our current rules, wireless providers subject to these obligations that offer fewer than three handsets
per air interface to customers are not obligated to provide hearing aid compatible handsets. See 47 C.F.R §
20.19(e)(1).
512
47 C.F.R. § 20.19(c)(2)(ii).
513
See 47 C.F.R. § 20.19(c)(1).
514
See 47 C.F.R. §§ 20.19(c)(2)(i)(A), 20.19(e).
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requirements should be imposed on C Block licensees as a result of the obligations we adopt
here.515 Interested parties may also file ex parte comments in the hearing aid compatibility report
docket on this issue.516
229. Enforcement processes. We intend to vigorously enforce the requirement adopted
in this section. A person or entity who believes that the C Block licensee’s refusal to attach a
proposed device or application is a violation of the rules we adopt here may file a complaint
pursuant to the Commission’s existing enforcement rules, including the Commission’s formal
and informal complaint processes, where applicable.517 Through review of complaints and other
relevant information, we will monitor the ability of consumers, device manufacturers, and
application developers to use or develop devices and applications for C Block networks. We will
take appropriate enforcement action where necessary pursuant to the remedies available under
our statutory authority as appropriate, including forfeitures,518 license revocations,519 and ceaseand-desist orders.520
230. We do not see any basis for modifying our existing enforcement rules, as
proposed by some commenters,521 to establish special requirements for addressing complaints
related to open platforms for devices and applications. However, we commit to rule on these
complaints within 180 days of receipt of such complaints. In addition, we believe it would be
useful to set forth certain presumptions for these complaints. Specifically, once a complainant
sets forth a prima facie case that the C Block licensee has refused to attach a device or
application in violation of the requirements adopted in this section, the licensee shall have the
burden of proof to demonstrate that it has adopted reasonable network standards and reasonably
applied those standards in the complainant’s case. As noted above, where the licensee bases its
network restrictions on industry-wide consensus standards, we would afford the restrictions a
presumption of reasonableness. Lastly, we note that, as suggested by Google,522 interested
515
See Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, WT Docket No.
01-309, Report and Order, 18 FCC Rcd 16753, 16782-83 ¶ 74 (2003). This order directed Commission staff to
“deliver to the Commission a report that assesses the impact of our rules in achieving greater compatibility between
hearing aids and digital wireless phones” shortly after three years from the order’s effective date. Id.
516
On November 8, 2006, the Wireless Bureau released a public notice seeking comment on topics to be addressed
in the hearing aid compatibility report to be prepared by Commission staff. See Wireless Telecommunications
Bureau Seeks Comments on Topics to be Addressed in Hearing Aid Compatibility Report, WT Docket No. 06-203,
Public Notice, 21 FCC Rcd 13136 (2006).
517
Formal complaints are filed pursuant to Section 208 of the Communications Act, 47 U.S.C. § 208, and are
governed by Sections 1.720-1.736 of the Commission’s rules, 47 C.F.R. §§ 1.720-1.736. Informal complaints are
governed by Sections 1.716-1.719 of the Commission’s rules, 47 C.F.R. §§ 1.716-1.719.
518
See 47 U.S.C. § 503.
519
See 47 U.S.C. § 312(a).
520
See 47 U.S.C. § 312(b).
521
See Skype July 24 Ex Parte at 1-2 (requesting rule modifications so that complainants would be required to make
only a prima facie case of violation, and the agency would be required to resolve all complaints within 180 days of
filing); Google July 24 Ex Parte at 4 (requesting rule modifications so that complainants would be required to make
only a prima facie case of violation).
522
See Google July 24 Ex Parte at 4.
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parties may file a petition for declaratory ruling where a particular practice has broad market
impact. 523
(iv)
Use of Dynamic Spectrum Management Techniques
231. Background. On May 21, 2007, Google filed an ex parte letter in this proceeding
in which it requests that the Commission declare that existing rules governing commercial
spectrum in the 700 MHz Band already permit licensees to institute dynamic spectrum
management techniques, such as what it terms “dynamic auction mechanisms.”524 Google asserts
that licensees could use these techniques to institute a practice whereby access to spectrum is
provided on an as-needed basis, and payments would be made as the spectrum is being used.525
Google explains that a licensee using such mechanisms could recover its costs in obtaining the
license at the Commission’s auction by charging third parties for their real-time and place use of
the licensed spectrum.526 In addition, Google requests that the Commission consider whether it
would be in the public interest to mandate the use of such techniques for some, or even all, of the
commercial spectrum to be auctioned in the 700 MHz Band.527
232. As a further elaboration of its term “dynamic auction mechanism,” Google states
that “[w]hile dynamic auctions can take many forms, the central concept is to utilize intelligent
devices to resolve spectrum access contention.”528 Google provides examples of a “real-time
airwaves auction model” and “per-device registration fees.” Under a real-time airwaves auction
model, the licensee could bestow the right to transmit an amount of power for a unit of time, with
the total amount of power in any location being limited to a specified cap. This cap would be
enforced by measurements made by the communications devices. Under this model, bands
should be allocated in chunks as large as possible for channel capacity efficiency reasons, and
the airwaves auction would be managed via the Internet by a central clearinghouse.529 According
523
See 47 C.F.R. § 1.2.
524
Letter from Richard S. Whitt, Esq., Washington Telecom and Media Counsel, Google, Inc. to Marlene H. Dortch,
Secretary, FCC, filed May 21, 2007 (Google Ex Parte); see also Google 700 MHz Band Further Notice Comments
at 7 (Google Ex Parte “seek[s] confirmation that successful bidders in the 700 MHz auction have the requisite
authority to conduct dynamic auctions of their spectrum holdings”), Appendix A (incorporating Google Ex Parte as
part of its comments). Google states that for every inquiry using the Google “search engine,” the company
separately performs its own real-time auction to determine the market price of a particular advertisement linked to a
particular search term. Google asserts that, in the same way, an auction could be performed for a radio transmission
in a pertinent place and time to determine the economic value that the market would support for that transaction.
Google Ex Parte at 6.
525
Google Ex Parte at 3.
526
Google Ex Parte at 6.
527
Google Ex Parte at 6. Google also proposed that the Commission require that the unpaired 6-megahertz Lower
700 MHz Band E Block should be reserved for broadband platforms. Id. This particular proposal is discussed
elsewhere in this Second Report and Order. As noted above, on May 24, 2007, the Wireless Bureau issued a Public
Notice seeking comment on Google’s service rules proposals. Public Notice, Comment Sought on Google Proposals
Regarding Service Rules for 700 MHz Band Spectrum, WT Docket 06-150 et al., DA 07-2197 (WTB, rel. May 24,
2007).
528
Google Ex Parte at 3.
529
Google Ex Parte at 4.
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to Google, with a per-device registration process, the communications device itself could become
a key to the payment process, and that a consumer’s price to purchase a device could include an
airwaves registration fee which would grant the ability to gain unlimited use at a specified power
level. Google also states that the device could include collision-detection and back-off features
to limit congestion.530
233. Google contends that the use of dynamic spectrum management practices such as
real-time auctions would maximize the use of underutilized spectrum resources, reduce barriers
to entry, and thereby provide access to innovators to offer the consumer new applications,
devices, and services at reasonable prices. According to Google, such practices also would spur
broadband deployment.531
234. Several commenters oppose, on procedural grounds, our consideration of any of
Google’s proposals at this time. These commenters argue that consideration of the proposals in
Google’s ex parte letter comes too late in this proceeding and would further delay to the 700
MHz auction.532
235. CCIA supports Google’s request for clarification that the use of dynamic
spectrum management techniques is consistent with Commission rules.533 Several parties
comment more generally on the potential usefulness of dynamic spectrum management
techniques, including but not limited to what Google references as dynamic spectrum auctions.534
Commenters that support the use of dynamic spectrum management techniques such as real-time
auctions claim that these techniques would promote innovation by creating a transparent,
present-value market for spectrum, lowering up-front costs, and offering greater opportunities for
entrepreneurial companies to access the spectrum resource.535 These commenters also agree with
Google that managing spectrum access to the licensed spectrum through the use of dynamic
auction mechanisms could facilitate in the allocation of spectrum for maximum efficiency at
lower costs to consumers.536
236. Other commenters, however, express concern that Google’s specific proposal on
spectrum management techniques is unclear in many respects and does not provide sufficient
530
Google Ex Parte at 4-5.
531
Google Ex Parte at 2-5.
532
See, e.g., CTIA Google Ex Parte Comments at 14; MetroPCS Google Ex Parte Comments at 13 (maintaining
that, while Google’s proposal may have merit, it comes too late in a proceeding “with tight statutory deadlines” to be
considered); AT&T Google Ex Parte Comments at 6; Verizon Wireless Google Ex Parte Comments at 8.
533
CCIA Google Ex Parte Comments at 2;
534
See, e.g., CCIA Google Ex Parte Comments at 2, 4; Frontline Google Ex Parte Comments at 11; Wireless
Founders Coalition for Innovation Google Ex Parte Comments at 4-5 (supporting use of “open auctions” with
regard to the proposed commercial public-private partnership license); Vanu Google Ex Parte Comments at 2
(supporting “any rulemakings that can contribute to the goal of making spectrum a more accessible commodity,
including but not limited to, the concept of dynamic spectrum auctions” ).
535
See, e.g., Wireless Founders Coalition for Innovation Google Ex Parte Comments at 4; CCIA Google Ex Parte
Comments at 1, 3; Vanu Google Ex Parte Comments at 2, 5.
536
See, e.g., Frontline Google Ex Parte Comments at 5-6; Wireless Founders Coalition for Innovation Google Ex
Parte Comments at 4; CCIA Google Ex Parte Comments at 3-4.
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detail for Commission evaluation.537 Some of these commenters also contend that, depending on
what Google is proposing, the Commission may either already permit Google and others to use
these mechanisms or the Commission has prohibited these practices. Verizon Wireless, for
instance, asserts that, to the extent Google seeks confirmation that a licensee is permitted
dynamic use of its spectrum, the Commission previously has confirmed this right in the flexible
use rules applicable to commercial 700 MHz Band licensees, wherein licensees have the
flexibility to reduce noise levels, lower power of their own transmissions, collaborate with
equipment vendors to develop new devices, and engage in secondary market transactions to
facilitate the shared use of spectrum.538 Verizon Wireless, AT&T, and CTIA point out that
Google’s proposal may already be permitted under the Commission’s spectrum leasing rules,
where licensees and spectrum lessees are permitted to enter into a variety of dynamic forms of
spectrum leasing that take advantage of advanced technologies that enable shared use of licensed
spectrum, subject to compliance with specified regulatory requirements.539 Verizon Wireless
notes, too, that the Commission permits licensees to establish “private commons” arrangements
with spectrum users under specified procedures.540 In its comments, MetroPCS interprets
Google’s proposal as a scheme to provide “end user access on an as-needed basis,” and contends
that, if so, it raises a host of potential legal and regulatory issues in the implementation of that
business model that Google fails to address in its proposal.541 To the extent that Google may be
proposing involuntary or unlicensed use of licensed spectrum, Verizon Wireless and CTIA
oppose the proposal, stating that this concept recently was rejected by the Commission in its
“Interference Temperature” proceeding.542 To the extent dynamic spectrum management
techniques that Google discusses would be applied to commercial spectrum shared with public
537
Verizon Wireless Google Ex Parte Comments at 2; CTIA Google Ex Parte Comments at 6; AT&T Google Ex
Parte Comments at 3-6; MetroPCS Google Ex Parte Comments at 5, 10.
538
Verizon Wireless Google Ex Parte Comments at 2-4.
539
Verizon Wireless Google Ex Parte Comments at 3-4; AT&T Google Ex Parte Comments at 4-5 (noting statutory
obligations such as foreign ownership and control limitations and compliance with CALEA, as well as other
requirements under the secondary markets rules); CTIA Google Ex Parte Comments at 6-8 (expressing concerns
that dynamic auctions could make it difficult to determine whether spectrum users were in compliance with Title II
obligations, cripple enforcement against parties causing out of band harmful interference, and allow evasion of
various license qualification requirements).
540
Verizon Wireless Google Ex Parte Comments at 3-4.
541
MetroPCS Google Ex Parte Comments at 2, 5-9. MetroPCS interprets Google’s dynamic auction mechanisms as
“contemplat[ing] demand-based pricing in which consumers will be charged different prices.” Id. at 5. MetroPCS
notes that such discriminatory pricing would be forbidden to common carriers, raising a classification issue. Id. at 89. In the view of MetroPCS, these ambiguities foreclose Google from receiving the relief it seeks. Id. at 8-10.
Moreover, MetroPCS argues that Google is in effect petitioning for a declaratory ruling without shouldering a
proponent’s burdens: nowhere does Google demonstrate how its proposals comport with the core legal
requirements, such as those relating to Title II obligations, and other Commission rules. MetroPCS therefore
concludes that it would be premature to consider Google’s request. Id. at 9-10. In its reply comments, Google
contends that MetroPCS’s objections are “peripheral speculations.” See Google Google Ex Parte Reply Comments
at 5-6.
542
Verizon Wireless Google Ex Parte Comments at 2-4.
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safety users, such as under the Frontline proposal, NPSTC and NENA express concerns that
critical public safety standards and operations not be undermined.543
237. Vanu comments that, as a general matter, it supports any rulemakings that can
contribute to the goal of making spectrum a more accessible commodity, including, but not
limited to, the concept of dynamic spectrum auctions.544 Vanu asserts that the key to making
dynamic spectrum access work is having a single local mechanism for coordinating the real-time
spectrum access, and emphasizes that, at this time, the licensee must exercise some form of
centralized control, from a frequency planning and interference protection perspective, to ensure
compliance with the Commission’s existing rules.545 Vanu asks that the Commission grant
licensees “the right to offer their spectrum to short term lessees in dynamic auction proceedings”
under the following conditions: the spectrum licensee retains ultimate responsibility for
compliance with Commission rules; the spectrum licensee is responsible for administering a
system that can be shown to cause mobile devices attached to the licensee’s network to comply
with FCC regulations within the licensee’s coverage area; and the spectrum licensee must
demonstrate mechanisms by which devices capable of operating in the dynamic spectrum access
environment can be temporarily or permanently removed from dynamic spectrum access mode
via centralized control.546
238. In Google’s reply to these comments, Google states that it is not asking for the
Commission “to attempt to peer into the future and assess what specific business models and
technologies should be encouraged, or even allowed,” and instead is indicating that “the concept
of dynamic spectrum management potentially covers many different technologies and
commercial models, many of which have not been invented.”547 Google states that, as an
example, its proposal contemplates that the end-users could gain temporary access to the licensed
spectrum through these management techniques much as cellphone subscribers do today.548
With regard to NPSTC’s and NENA’s concerns about protecting public safety spectrum, Google
states that it does not intend its proposals to suggest placing mandatory conditions on 700 MHz
Band spectrum assigned for public safety use.549
239. As for whether the Commission should mandate the use of “dynamic spectrum
management techniques” in some or all of the 700 MHz Band, the majority of commenters
object to any such requirement.550 These commenters argue that, irrespective of whether
543
NPSTC Google Ex Parte Comments at 3-5; NENA Google Ex Parte Reply Comments at 4-5.
544
Vanu Google Ex Parte Comments at 2.
545
Vanu Google Ex Parte Comments at 3-4.
546
Vanu Google Ex Parte Comments at 4-5.
547
Google Google Ex Parte Reply Comments at 4.
548
Google Google Ex Parte Reply Comments at 4.
549
Google Google Ex Parte Reply Comments at 9-10.
550
See, e.g., AT&T Google Ex Parte Comments at 8-11; CTIA Google Ex Parte Comments at 3; MetroPCS Google
Ex Parte Comments at 9; NENA Google Ex Parte Reply Comments at 3-5 (opposing use in public safety-related
spectrum); NPTSTC Google Ex Parte Comments at 4 (same); RTG Google Ex Parte Comments at 2; Qualcomm
Google Ex Parte Comments at 3; Qualcomm Google Ex Parte Reply Comments at 3; Verizon Wireless Google Ex
Parte Comments at 4-5.
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Google’s proposed uses are permissible under the Commission’s rules, mandating licensees to
employ particular spectrum management techniques, such as one that Google uses for its own
business model with regard to such uses or reserving any portion of the commercial 700 MHz
spectrum for the exclusive use of parties seeking to implement any type of dynamic spectrum
management business plan would run counter to the Commission pro-competitive, technology
neutral, and flexible use policies. AT&T and Qualcomm contend that the Commission’s marketdriven policies have worked over the last 15 years to encourage the highly competitive wireless
environment of today and that mandating or restricting uses would run counter to that effective
policy.551 Several commenters express doubts about whether it is currently technically feasible to
conduct dynamic spectrum auctions as proposed by Google.552
240. Commenters supporting such a requirement generally focus on mandating such
mechanisms specifically on the commercial spectrum block designated for the public-private
partnership, in the event the Commission was to establish such a partnership. For example,
Frontline proposes that such a partnership licensee be required to “implement promptly” such an
open auction mechanism. In particular, Frontline argues, the licensee should be required to
dedicate at least 25% of the public-private partnership commercial license to real-time auctions
for three years, with annual written reports to be submitted to the Commission along the lines
required of experimental licensees.553 CCIA supports Google’s proposal as necessary to generate
sufficient revenue to build a nationwide broadband network.554
241. Discussion. In response to Google’s first request, we affirm that nothing in the
Commission’s rules generally prohibits 700 MHz licensees from using dynamic spectrum
management practices. Dynamic spectrum management techniques, such as those contemplated
in Google proposals, appear to be in accord with the Commission’s flexible use policies and
secondary market mechanisms, which provide licensees with significant flexibility in managing
access and use of the licensed spectrum in a dynamic and efficient manner consistent with the
rights given to, and obligations imposed on, licensees under the Communications Act and our
rules. Based on the current record, of course, we cannot address any particular manner in which
a licensee might implement any such practice, and whether any of our specific rules, such as our
technical and equipment rules, would need to be modified. In response to Google’s second
suggestion, we decline to mandate the use of dynamic spectrum management practices for 700
MHz Band licensees.
551
Qualcomm 700 MHz Further Notice Reply Comments at 2; Qualcomm Google Ex Parte Comments at 6-8;
AT&T Google Ex Parte Comments at 8 (mandating rules designed to promote particular technologies or services is
inconsistent with the Commission’s long-standing policies of maintaining technical and service neutrality in its rules
and allowing flexible spectrum use by licensees).
552
MetroPCS Google Ex Parte Comments at 10 and n.25 (indicating that dynamic auctions may be 5 or 10 years
away); Vanu Google Ex Parte Comments at 3-4 (noting that “it is not yet technically feasible for a wireless device
to calculate interference temperature in a meaningful way”); NPSTC Google Ex Parte Comments at 9-10 (no
sensing technologies yet exist able to meet acceptable public safety standards).
553
Frontline 700 MHz Further Notice Comments at 23-24.
554
CCIA Google Ex Parte Comments at 1 (sharing risk and investment up front and over time would help to finance
actual construction costs and facilitate entry of new licensees).
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242. In adopting flexible spectrum use policies for the commercial spectrum in the 700
MHz Band, and in establishing policies and rules that facilitate the development of secondary
markets in spectrum usage rights, the Commission has sought to remove regulatory impediments
in order to enable more efficient use of licensed spectrum.555 Under existing rules, 700 MHz
Band licensees have wide latitude to adopt and implement spectrum management techniques to
manage access to and use of their spectrum, so long as they are consistent with the
Commission’s rules relating to the spectrum and the prevention of harmful interference. As a
matter of practice, licensees continually devise and update the types of advanced devices they
deploy, and improve the management of the dynamic spectrum use between and among their
subscribers, consistent with the applicable service rules and their respective business models.
Further, as Google notes, the concept of dynamic spectrum management potentially covers many
different technologies and commercial models, many of which have not been invented.556
243. In the Commission’s Secondary Markets proceeding, the Commission has taken
several actions to enable more dynamic access and use of spectrum by licensees and other
spectrum users, facilitating spectrum use across various dimensions (frequency, space, and time)
and spectrum access employing advanced technologies.557 In the Secondary Markets Second
Report and Order, the Commission took specific steps, which apply to the 700 MHz Band, to
facilitate the development of spectrum usage arrangements that employ advanced technologies
that can more efficiently share use of licensed spectrum.558 In particular, the Commission
clarified that licensees and spectrum lessees may enter into a wide variety of dynamic spectrum
leasing arrangements that enable users to share use of the licensed spectrum based on the
particular parameter and arrangements that the licensee and spectrum lessee(s) have agreed
upon.559
555
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 483-487 ¶¶ 15-25; Lower 700 MHz Band Report
and Order, 17 FCC Rcd at 1051-52 ¶¶ 70-71; Order Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets, WT Docket 00-230, Report and Order and Further Notice of
Proposed Rulemaking, 18 FCC Rcd 20604 (2003) (Secondary Markets First Report and Order) (applying secondary
market spectrum leasing rules to commercial 700 MHz Band services); Erratum, 18 FCC Rcd 24817 (2003); Second
Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, 19 FCC Rcd
17503 (2004) (Secondary Markets Second Report and Order); Third Report and Order, 22 FCC Rcd 7209 (April 11,
2007) (Secondary Markets Third Report and Order); see also 47 C.F.R. §§ 27.2 (Part 27 rules applicable to
commercial 700 MHz Band services), §§ 1.9001 et seq. (Subpart X rules concerning “Spectrum Leasing”).
556
Google Google Ex Parte Reply Comments at 4.
557
See Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary
Markets, WT Docket 00-230, Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 20604
(2003) Secondary Markets First Report and Order); Erratum, 18 FCC Rcd 24817 (2003); Second Report and Order,
Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, 19 FCC Rcd 17503 (2004)
(Secondary Markets Second Report and Order); Third Report and Order, 22 FCC Rcd 7209 (April 11, 2007)
(Secondary Markets Third Report and Order); see also 47 C.F.R. §§ 1.9001 et seq. (Subpart X rules concerning
“Spectrum Leasing”).
558
Secondary Markets Second Report and Order, 19 FCC Rcd at 17545-54 ¶¶ 85-99.
559
Secondary Markets Second Report and Order, 19 FCC Rcd at 17546-48 ¶¶ 88-90 (explaining that “a variety of
dynamic forms of spectrum leasing arrangements” are permitted, and providing a number of illustrative, but nonexhaustive, examples of permissible dynamic forms of spectrum leasing utilizing advanced technologies).
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244. As the Commission explained, a licensee and spectrum lessee may, under existing
rules, enter into dynamic spectrum leasing arrangement in which use of the same spectrum is
shared between both the licensee’s and spectrum lessee’s users by employing opportunistic
devices. In another variation, a licensee could enter into a spectrum leasing arrangement that
gives one spectrum lessee access to the spectrum on a priority basis, while also leasing use of the
same spectrum to another spectrum lessee on a lower-priority basis, with the requirement that the
lower-priority spectrum lessee employ certain opportunistic technology to avoid interfering with
the priority spectrum lessee. The flexibility provided under our dynamic spectrum leasing rules
permits arrangements that could facilitate opportunistic use by parties operating at the same
power level and under similar technical parameters as the licensee, or they could promote such
use at lower power levels.560 In another secondary markets arrangement permitted under our
rules, licensees and spectrum lessees may, under certain specified conditions, make spectrum
available to individual users or groups of users through “private commons” arrangements that do
not fit squarely within the traditional end-user arrangements associated with the licensee’s (or
spectrum lessee’s) subscriber-based services and network infrastructures or under the secondary
markets spectrum leasing policies and rules.561
245. These secondary market policies and rules are intended to facilitate the use of
advanced technologies, including “smart” or “opportunistic” devices, that have the potential to
increase access and use of unused licensed spectrum.562 Although the Commission has not
endeavored to provide an exhaustive list of all the possible arrangements that could involve the
use of opportunistic devices and the management of spectrum sharing among users, the
Commission’s existing rules provide significant flexibility to licensees and spectrum lessees to
take advantage of advanced technologies in the access to and sharing of spectrum use, pursuant
to the terms and conditions that licensees and spectrum lessees establish, so long as they fall
within the licensee’s spectrum usage rights under the license authorization and are not
inconsistent with applicable technical and other regulations imposed by the Commission to
prevent harmful interference to other licensees.563
246. Based on the current record, of course, we cannot address any particular manner
in which a licensee might seek to implement any of the types of dynamic spectrum management
techniques suggested by Google, and whether any of our specific rules, such as our technical and
equipment rules, would need to be modified in that instance.564 Indeed, Google is not asking the
560
Secondary Markets Second Report and Order, 19 FCC Rcd at 17547-48 ¶¶ 88-89.
561
Secondary Markets Second Report and Order, 19 FCC Rcd at 17549-53 ¶¶ 91-99; see also Secondary Markets
Third Report and Order, 22 FCC Rcd at 7209-12 ¶¶ 3-9 (discussing rules applicable to “private commons”
arrangements).
562
Secondary Markets Second Report and Order, 19 FCC Rcd at 17545-54 ¶¶ 85-99.
563
Secondary Markets Second Report and Order, 19 FCC Rcd at 17546 ¶ 86.
564
For instance, one possibility Google envisions is that the communications device itself measures and enforces
regulatory requirements that the total amount of power being transmitted by all devices in any location be limited to
a specified cap. Google Ex Parte at 3. Based on the current record, we do not consider whether there would need to
be any changes to our technical rules or equipment authorization rules for a licensee to implement that specific
suggestion.
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Commission to assess what specific business models and technologies should be allowed.565 We
also are not addressing any possible regulatory classification issues that might arise from a
licensee’s provision of spectrum access using dynamic spectrum management techniques.566
247. We will not mandate that licensees employ the particular types of spectrum
management mechanisms that Google proposes. Consistent with many commenters on this
point, we conclude that licensees should retain significant flexibility with regard to the precise
mechanisms they utilize when it comes to managing spectrum access to the network and among
users. Mandating any particular dynamic spectrum management mechanism on a licensee may
impose unanticipated or unnecessarily burdensome requirements on a particular licensee,
including requirements for the network, and the devices deployed on it, that may not be
consistent or appropriate for that licensee’s business model. Of course, to the extent any licensee
believes that the specific spectrum management mechanisms that Google proposes is appropriate
or preferable, it is free to choose to utilize these mechanisms, consistent with our guidance
above.
248. Finally, we decline to adopt Vanu’s request that the Commission establish
specific conditions for the particular type of dynamic auction proceedings it proposes. While we
agree that licensees (or spectrum lessees) bear the responsibility for ensuring that users and
devices using licensed spectrum comply with the rules that apply to the particular spectrum in
which they operate,567 we are in no position, based on the record before us, to make any specific
determination by rule in this proceeding along the lines that Vanu proposes.
(v)
Protection of 700 MHz Public Safety Operations
249. Background. The initial rules for the Upper 700 MHz Band were adopted in part
to ensure that appropriate interference protection was provided to 700 MHz public safety
operations. Specifically, the Commission adopted strict out-of-band emission (OOBE) limits for
C and D Block licensees – i.e., requiring C and D Block base stations and mobiles/portables to
attenuate their emissions by 76 + 10log P and 65 + 10logP, respectively, into a 6.25 kHz
bandwidth within the public safety bands. In addition, the Commission placed guard bands
between the public safety bands and the C and D Blocks to prevent C and D Block transmissions
from causing receiver overload interference to public safety operations and required guard band
licensees to coordinate with public safety entities to minimize the likelihood of such
interference.568 In adopting our new band plan for the 700 MHz Band, we must take all
necessary steps to ensure continued protection of the public safety bands from C and D Block
transmissions.
565
Google Google Ex Parte Reply Comments at 4.
566
MetroPCS Google Ex Parte Comments at 8-9.
567
See, e.g., Secondary Markets Second Report and Order, 19 FCC Rcd at 17547-54 ¶¶ 88-99 (providing guidance
for licensees and spectrum lessees who provide dynamic spectrum access to their networks through secondary
market mechanisms); Secondary Markets Third Report and Order, 22 FCC Rcd 7209 (providing additional
guidance).
568
Guard band licensees were also restricted from employing systems with cellular architectures to minimize the
frequency coordination activities that would be required of public safety licensees.
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250. Discussion. We shall continue to require Upper 700 MHz Band C Block
licensees to meet the 76 + 10 log P and 65 + 10 log P OOBE limits with respect to the public
safety bands. Both Alcatel-Lucent and Ericsson suggest that we adopt the less stringent 43 + 10
log P OOBE limit to protect the public safety broadband block from commercial broadband
transmissions.569 However, we agree with Motorola that the possible use of similar architectures
by public safety and commercial broadband systems will not ensure interference protection to
public safety broadband operations. 570 Furthermore, given the steps the Commission has taken
to provide increased protection to 700 MHz public safety operations, we do not believe that the
43 + 10 logP OOBE limit, used to prevent 700 MHz commercial broadband systems from
interfering with one another, should be employed as the out-of-band emission limit to protect
700 MHz public safety broadband systems from interference. We shall therefore retain the
existing 76 + 10 log P and 65 + 10 log P OOBE limit for C Block licensees.
251. We will not require the Upper 700 MHz Band D Block licensee, however, to meet
OOBE limits with respect to the public safety broadband spectrum. We reach this conclusion
because the D Block licensee, through the 700 MHz Public/Private Partnership, will operate on
adjacent spectrum and use the same infrastructure as the public safety broadband licensee, and
meeting OOBE was a measure designed to protect public safety operations from interference
from unaffiliated commercial systems. The D Block licensee will still, however, be required to
satisfy the 76 and 65 + 10 log P OOBE limits with respect to the narrowband portion of the
public safety spectrum. Finally, we shall not require the D Block licensee and Public Safety
Broadband Licensee to coordinate with one another to address potential overload interference,
even though such licensees will be authorized on adjacent spectrum, because under the
public/private partnership, as discussed above, the D Block licensee and Public Safety
Broadband Licensee will be sharing the same infrastructure.
(vi)
Licensee Eligibility
252. Background. In the 700 MHz Further Notice, we requested comment on the
proposal presented by Media Access Project and PISC to encourage the entry of new competitors
by excluding incumbent local exchange carriers (ILECs), incumbent cable operators, and large
wireless carriers from eligibility for licenses in the 700 MHz Band.571 We also sought comment
on whether eligibility to hold one or more blocks of the Upper 700 MHz C Block spectrum
should be limited to parties not affiliated with existing wireline broadband service providers,
including both DSL and cable providers, or, alternatively, limited to parties not affiliated with inregion wireline broadband service providers.572
569
Alcatel-Lucent argues that “with the likelihood that similar architectures will be deployed in the commercial and
public safety spectrum, the potential for commercial broadband interference into the adjacent public safety spectrum
is significantly reduced.” Alcatel-Lucent 700 MHz Further Notice Comments at 19-20; see also Ericsson 700 MHz
Further Notice Comments at 29-30.
570
Motorola states that “[i]n adopting the existing standard, the Commission recognized the inadequacy of the
commercial standard 43 +10log P to adequately protect public safety. Ignoring this fact and subjecting public safety
receivers to higher interference risks requires more consideration than a simple expectation that system architectures
may be similar.” Motorola 700 MHz Further Notice Reply Comments at 11-12.
571
700 MHz Report and Order, 22 FCC Rcd at 8143-44 ¶ 221.
572
700 MHz Report and Order, 22 FCC Rcd at 8144 ¶ 221.
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253. In all but one of the proceedings in which the Commission considered eligibility
restrictions for licenses in recent years, it has imposed such restrictions only when open
eligibility would pose a significant likelihood of substantial competitive harm in specific markets
and when eligibility restrictions were an effective way to address the harm.573 This standard
considers factors beyond market power, such as economic incentives, entry barriers, and
potential competition.574
254. PISC is virtually alone in advocating excluding otherwise qualified applicants
from eligibility for 700 MHz Band licenses based on their status as incumbent service
providers.575 PISC argues that the current market for wireless service and broadband is
concentrated and that incumbents have little incentive to build a wireless broadband network that
would compete directly with their existing wireless or broadband services. In connection with
advocating a bidding credit for new entrants as a potential response to these market conditions,
PISC notes the difficulty in properly prohibiting relationships between new entrants and parties
that should be excluded from receiving a bidding credit.576 PISC does not propose a definition of
573
See, e.g., Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to Facilitate the Provision of
Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690
MHz Bands, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165, 14227-32 ¶¶ 16576 (2004) (finding that parties favoring restricting eligibility of cable operators and ILECs to acquire BRS/EBS
licenses for the provision of non-video services had not shown that eligibility of such service providers is likely to
result in substantial competitive harm or that, even if specific markets experienced harm to competition, the
eligibility restrictions advocated would be effective in eliminating that harm), Third Memorandum Opinion and
Order, 21 FCC Rcd 5606, 5701-02 ¶¶ 229-31 (2006); Allocations and Service Rules for the 71-76 GHz, 81-86 GHz
and 92-95 GHz Bands, Report and Order, 18 FCC Rcd 23318, 23345-47, ¶¶ 68-70 (2003) (finding no significant
likelihood of competitive harm in any markets and therefore declining to impose eligibility restrictions);
Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems CoFrequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range, Amendment of the Commission's
Rules to Authorize Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees
and Their Affiliates, and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers,
Ltd. to Provide A Fixed Service in the 12.2-12.7 GHz Band, Memorandum Opinion and Order and Second Report
and Order, 17 FCC Rcd 9614, 9677-82, ¶¶ 159-70 (2002) (concluding that open eligibility for MVDDS licenses
for DBS service providers and distributors will not result in substantial competitive harm but that open eligibility for
in-region cable operators poses a significant likelihood of substantial competitive harm; and therefore prohibiting
any cable operator, or any entity owning an attributable interest in a cable operator, from holding an attributable
interest in an MVDDS license if such cable operator’s service area significantly overlaps the MVDDS license area);
Amendment of the Commission’s Rules Regarding the 37.0-38.6 GHz and 38.6 -40.0 GHz Bands, Implementation
of Section 309(j) of the Communications Act – Competitive Bidding, 37.0-38.6 GHz and 38.6-40.0 GHz, Report
and Order and Second Notice of Proposed Rule Making, 12 FCC Rcd 18600, 18619-20, ¶¶ 32-35 (1997) (finding it
unlikely that substantial anticompetitive effects would result from LEC eligibility); cf. Auction of Direct Broadcast
Satellite Licenses, 19 FCC Rcd 23849, 23856, 23869-71 (2004) (making DBS incumbents ineligible for two DBS
licenses that afford a last opportunity for new entry in the DBS market).
574
Rulemaking to Amend Parts 1, 2, 21 and 25 of the Commission’s Rules to Redesignate the 27.5-29.5 GHz
Frequency Band, to Reallocate the 29.5-30-0 GHz Frequency Band, to Establish Rules and Policies for Local
Multipoint Distribution Service and for Fixed Satellite Services, Third Report and Order and Memorandum Opinion
and Order, 15 FCC Rcd 11857, 11861-62 ¶¶ 7-12 (2000) (explaining why this standard, and not the substantial
market power test, is the appropriate standard to use in determining whether LMDS eligibility restriction previously
imposed on ILECs and cable companies should be allowed to sunset).
575
PISC 700 MHz Further Notice Comments at 7-12, 35. Cf. AT&T 700 MHz Further Notice Reply Comments
(summarizing comments for and against eligibility restrictions).
576
PISC 700 MHz Further Notice Comments at 35.
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all the parties that it believes should be excluded from eligibility. However, in arguing that the
Commission should prohibit relationships between new entrants and entities that it asserts have
incentives to exclude new competitors, PISC appears to suggest that ILECs, cable operators and
large wireless carriers should be ineligible to acquire 700 MHz Band licenses.577 Frontline also
argues that the markets for wireless service and broadband service are concentrated and submits
an economic study supporting its contentions.578 Frontline, however, does not advocate
restricting the applicants that may be eligible for licenses. Rather, Frontline proposes, and PISC
supports, mandating open access rules to address market concentration.579 We address potential
open access requirements elsewhere. CCIA proposes that, rather than restrict incumbents from
eligibility for licenses absolutely, the Commission should mandate that in-region wireline
incumbents be permitted to hold licenses only through structurally separate affiliates.580
255. A variety of commenters strongly oppose eligibility restrictions for a host of
reasons.581 Opponents contend that the record does not provide data sufficient to meet our
standard for imposing an eligibility restriction.582 Parties argue to the contrary that there is ample
and growing competition in wireless broadband.583 Several parties argue that restricting
incumbents would run directly contrary to the Commission’s goal of assigning licenses to the
parties that value the licenses the most.584 In many cases, certain commenters assert, that party
may well be an incumbent service provider, including either a rural provider or a national
carrier.585
256. Discussion. On the present record, we do not find a significant likelihood of
substantial competitive harm in a specific market, and therefore we decline to impose eligibility
restrictions for the licenses in the 700 MHz Band. At present, it appears most likely that the
commercial non-Guard Band spectrum in the 700 MHz Band will be used for the provision of
broadband services. Accordingly, we analyze whether open eligibility would pose a significant
likelihood of substantial competitive harm in the broadband services market. The record does
577
PISC 700 MHz Further Notice Comments at 35.
578
Frontline 700 MHz Further Notice Comments at 9-16, Ex. 1 at 6-11.
579
Frontline 700 MHz Further Notice Comments at 17; PISC 700 MHz Further Notice Comments at 12.
580
CCIA 700 MHz Further Notice Comments at 5.
581
See, e.g., TIA 700 MHz Further Notice Comments at 3, 5 and 7; CTIA 700 MHz Further Notice Comments at 10;
RTG 700 MHz Further Notice Comments at 12; NCTA 700 MHz Further Notice Comments at 2-3; 700 MHz
Independents 700 MHz Further Notice Comments at 10; MetroPCS 700 MHz Further Notice Comments at 38;
USCC 700 MHz Further Notice Comments at 21; AT&T 700 MHz Further Notice Comments at 20; Verizon
Wireless 700 MHz Further Notice Comments at 31; SpectrumCo 700 MHz Further Notice Comments at 7;
Qualcomm 700 MHz Further Notice Comments at 9-10; Motorola 700 MHz Further Notice Comments at 35.
582
CTIA 700 MHz Further Notice Comments at 11-12; TIA 700 MHz Further Notice Comments at 6.
583
NCTA 700 MHz Further Notice Comments at 4 (citing WiMax and BPL); AT&T 700 MHz Further Notice
Comments at 32-33 (citing WiMax, BPL, and satellite).
584
NCTA 700 MHz Further Notice Comments at 3; TIA 700 MHz Further Notice Comments at 6; WISP 700 MHz
Further Notice Comments at 7; MetroPCS 700 MHz Further Notice Comments at 43; Qualcomm 700 MHz Further
Notice Comments at 10; Verizon Wireless 700 MHz Further Notice Comments at 31-32.
585
Blooston 700 MHz Further Notice Comments at 5-6; Frontier 700 MHz Further Notice Comments at 13; CTIA
700 MHz Further Notice Comments at 17.
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not demonstrate that open eligibility is likely to result in substantial competitive harm in the
provision of broadband services. First, there are numerous actual and potential broadband
service providers. Currently, consumers can obtain broadband service from wireline providers,
cable companies, satellite, and wireless providers, including Wireless Internet Service Providers
(WISPs) that use unlicensed spectrum.586 While ILECs and incumbent cable operators may lead
in the provision of broadband internet access at the present, new entrants wishing to offer
wireless broadband internet access have numerous potential platforms to use for a wireless “third
pipe,” both among different 700 MHz Band blocks and among other wireless bands. There is
potential for additional entry into the broadband market by carriers operating on spectrum in the
Wireless Communications Services (WCS), Advanced Wireless Service (AWS), Broadband
Radio Service (BRS), and 3650-3700 MHz bands.587 Further, the Commission has facilitated
deployment of broadband service to be offered over electric lines.588 Satellite, wireless, and
broadband over power lines (BPL) have been used to provide broadband services on a
widespread basis for a relatively short period of time, and the number of high speed lines
deployed by these technologies has increased substantially.589 Between June 2005 and June 2006
the number of high speed lines offered by satellite, wireless, and BPL technologies increased by
over 1,000 percent, and as of June 2006 reflect approximately 18 percent of all high speed
lines.590 Given the number of actual wireless providers and potential broadband competitors, it is
unlikely that ILECs, cable providers, or large wireless carriers would be able to behave in an
586
Satellite broadband providers include WildBlue and Hughes. See http://www.wildblue.com/
http://www.hughes.com/HUGHES/Rooms/DisplayPages/LayoutInitial?pageid=HNS_home&Container=com.webrid
ge.entity.Entity[OID[48D310485DF714449F65AAD3E8CE2313]] (last visited May 18, 2007). Wireless providers
include not only the large national mobile telephony providers (Verizon Wireless, AT&T Mobility, Sprint Nextel,
and T-Mobile) but also smaller regional mobile telephony providers such as Alltel and USCC. Further, there are
various other wireless Internet service providers such as Clearwire, as well as Wi-Fi (hot spot) providers. See
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, WT Docket No. 06-17, Eleventh
Report, 21 FCC Rcd 10947, 10961-62 ¶ 30-32, 10993 ¶ 112 (2006) (Eleventh Competition Report);
http://easyedge.uscc.com/easyedge/Home.do.
587
See “FCC’s Advanced Wireless Services (AWS) Spectrum Auction Concludes,” News Release (rel. Sept. 18,
2006), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-267467A1.doc (last visited May 18,
2007); Consolidated Request of the WCS Coalition for Limited Waiver of Construction Deadline for 132 WCS
Licenses, Request of WCS Wireless, LLC for Limited Waiver of Construction Deadline for 16 WCS Licenses,
Request of Cellutec, Inc. for Limited Waiver of Construction Deadlines for stations KNLB242 and KNLB216 in
Guam/Northern Mariana and American Samoa, WT Docket No. 06-102, Order, 21 FCC Rcd 14134, 14140-41 ¶ 12
(2006); Wireless Operations in the 3650-3700 Band, ET Docket No. 04-151, Report and Order and Memorandum
Opinion and Order, 20 FCC Rcd 6502 ( 2005).
588
See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband
over Power Line Systems, Carrier Current Systems, including Broadband over Power Line Systems, ET Docket No.
04-37, Memorandum Report and Order, 21 FCC Rcd 10413 (2006); Amendment of Part 15 Regarding New
Requirements and Measurement Guidelines for Access Broadband over Power Line Systems, Carrier Current
Systems, including Broadband over Power Line Systems, ET Docket No. 04-37, Report and Order, 19 FCC Rcd
21265 (2004).
589
Industry Analysis and Technology Division, Wireline Competition Bureau, “High-Speed Services for Internet
Access: Status as of June 2006,” January 2007 at Table 1.
590
Industry Analysis and Technology Division, Wireline Competition Bureau, “High-Speed Services for Internet
Access: Status as of June 2006,” January 2007 at Table 1.
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anticompetitive manner as a result of any potential acquisition of 700 MHz spectrum. Moreover,
existing competition, such as that between ILECs and cable providers with respect to broadband
internet access services, limits any one party’s incentives to attempt unilaterally to block new
entrants from acquiring 700 MHz spectrum. Absent a monopoly on broadband service, an
incumbent attempting to block new entrants would bear all the costs of doing so, while other
incumbents would capture much of the gain.
257. Also, we find that the revised band plan for the 700 MHz Band and the associated
buildout rules will help discourage foreclosure in the market. First, this spectrum is being
auctioned in five spectrum blocks ranging in size from a 6-megahertz unpaired block to a 22megahertz block (comprised of paired 11-megahertz blocks) and over various geographic market
sizes ranging in size from CMAs to REAGs. Given the number and diversity of available
licenses, it is unlikely that any ILEC, cable company, or large wireless carrier would be able to
acquire enough spectrum to foreclose the broadband market to potential competitors, even if it
should attempt to do so. Second, the build out requirements adopted in this Second Report and
Order will help prevent warehousing, requiring auction winners to bear the cost of providing
service, in addition to the cost of acquiring licenses, in order to prevent entry by potential
competitors.
258. There are potential competitive benefits to not imposing the proposed eligibility
requirement. Allowing ILECs and cable companies to hold 700 MHz Band licenses would
provide opportunities for these carriers to extend their services to rural and hard-to-serve areas
where transmission by cable or wire may be prohibitively expensive. Also, as reflected by many
comments, the proposed eligibility restriction would create impediments to small and rural
carrier acquisition of spectrum and deployment of broadband services.591 These carriers may
have limited access to capital, and the proposed eligibility restriction would prevent the
formation of alliances, partnerships, and joint ventures that could provide these firms with
needed capital.
259. We also note that restricting eligibility for licenses without adequate justification
could harm the public interest. The use of competitive bidding to assign licenses, such as the
commercial 700 MHz licenses, serves the public interest by assigning licenses to the parties that
value the licenses the most. Such parties are presumed to be most likely to put the public
spectrum resource to its most effective use.592 If, however, we exclude categories of potential
licensees, we risk reducing the likelihood that the party valuing the license the most will win the
license and put it to use for the benefit of the public. This unavoidable uncertainty in assessing
prospective competitive harms is heightened here by the substantial spectrum capacity being
made available and the uncertainty regarding how that spectrum capacity ultimately will be used.
591
See, e.g., Blooston 700 MHz Further Notice Comments at 5-6; RTG 700 MHz Further Notice Comments at 13;
700 MHz Independents 700 MHz Further Notice Comments at 9-11.
592
See Implementation of Section 309(j) of the Communications Act – Competitive Bidding, Second Report and
Order, 9 FCC Rcd 2348, 2349-50 ¶¶ 3-7 (1994).
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700 MHz Guard Bands
(i)
Treatment of Reconfigured A Block
260. Background. In setting forth the rules governing the Upper 700 MHz Band, the
Commission indicated that a primary goal was to ensure that 700 MHz public safety operations
are protected from harmful interference from commercial systems in adjacent bands.593 Because
the occurrence and severity of interference increases as an interfering source comes spectrally
closer to a receiver’s assigned frequencies, the Commission was particularly concerned about the
effect of commercial operations on adjacent public safety narrowband systems.594 To address
one form of interference to public safety systems – receiver overload595 – the Commission
established the 700 MHz Guard Bands between commercial and public safety spectrum. The
Commission also adopted a package of stringent interference protections modeled on the
interference standards used for the 700 MHz public safety spectrum.596 Specifically, the
Commission required that operations in the Guard Bands must adhere to the rigorous out-of-band
emission criteria—adjacent channel power (ACP) limits—used by 700 MHz public safety
operations.597 The Commission also required that spectrum users in the Guard Bands employ
frequency coordination procedures in cooperation with 700 MHz public safety coordinators,598
and prohibited the use of cellular architectures in the Guard Bands.599
261. In their comments, Access Spectrum/Pegasus and Arcadian argue that in the event
that the Commission chooses to reconfigure the Guard Band A Block, the Commission should
apply to the reconfigured A Blocks the same technical rules that apply to other commercial
licensees.600 Access Spectrum/Pegasus argue that in the case where Guard Band A Block
transmitters are no longer next to public safety narrowband channels,601 transmitter power should
be attenuated out-of-band by at least 43 +10log P dB, and that, in order to protect public safety
593
Upper 700 MHz First Report and Order, 15 FCC Rcd at 490 ¶ 33.
594
Although filtering is used to minimize interference, no receiver filter can confine emissions to a specific channel;
some signals will inevitably “spillover” into nearby spectrum. Compounding the problem, public safety narrowband
receivers often are not sufficiently selective to reject undesired signals that may be present under these conditions.
595
Overload (also known as receiver or front-end overload) is an informal term describing situations where a
receiver is exposed to very strong signal levels leading to a loss of receiver sensitivity.
596
See Upper 700 MHz Second Report and Order, 15 FCC Rcd at 5307 ¶ 16. The Commission reasoned that
applying the same out-of-band emissions limits in both the Guard Bands and the public safety bands will provide the
same effective technical interference protection to public safety users as users of public safety equipment provide to
themselves. Id.
597
47 C.F.R. § 27.53.
598
Frequency coordination permits Guard Bands and public safety operators to select frequencies that are as far
from one another as possible.
599
See Upper 700 MHz Second Report and Order, 15 FCC Rcd at 5308-09 ¶¶ 18-19.
600
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 17; Arcadian 700 MHz Further Notice Reply
Comments at 9.
601
Although Access Spectrum/Pegasus’s argument was made in the context of the alternative Access
Spectrum/Pegasus proposal (Proposal 3), it can similarly be applied in the context of a reconfigured A Block placed
between the commercial C and D Blocks.
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wideband and narrowband, A Block transmissions should be attenuated to at least 76 + 10log P
dB, in a 6.25 kilohertz bandwidth for base stations, and 65 + 10log P dB for mobile units.602
According to this proposal, which assumes that the A Block is adjacent to the Public Safety
Broadband allocation, A Block licensees would need to meet the 76 +10logP/65+10logP
attenuation requirement either 1 or 1.5 megahertz into the public safety broadband block
depending on whether the Commission permits wideband operations in the public safety
broadband spectrum.603 Access Spectrum/Pegasus argue that by applying these emissions limits,
the Commission would promote public-private partnerships, as well as adequately protect public
safety spectrum from interference.604
262. Discussion. Because the reconfigured Guard Band A Block will now be located
at 757-758/787-788 MHz between the Upper 700 MHz Band C and D Blocks, and will no longer
be adjacent to public safety narrowband spectrum, we conclude that it is no longer necessary to
apply the ACP emissions criteria to the A Block. Instead, we will apply OOBE limits, which are
consistent with emission limits applicable to the C Block. Thus, A Block licensees are required
to attenuate out-of-band by at least 43 +10log P dB. Further, as explained above, we continue to
believe that we should continue to apply heightened out-of-band emissions criteria in order to
provide adequate protection to public safety. Therefore A Block transmitter power must be
attenuated to at least 76 + 10log P dB, in a 6.25 kilohertz bandwidth for base stations at 763
MHz, and 65 + 10log P dB for mobile units at 793 MHz. We agree with Access
Spectrum/Pegasus that reconfiguring the public safety block and applying OOBE rules that are
consistent with those applicable to the C Block will help to promote more efficient use of the 700
MHz Band and could lead to the combined use of multiple spectrum blocks for the provision of
broadband services.605 We find that the OOBE limits we are applying here are readily achievable
by the A Block licensees, yet will provide appropriate out-of-band protection to other Upper 700
MHz operations. Accordingly, we will no longer require the reconfigured A Block licensees to
comply with the ACP limits set forth in Section 27.53(d) of our rules.
263. Frequency Coordination and the Cellular Architecture Prohibition. In addition to
imposing the more stringent OOBE limits, the Upper 700 MHz Second Report and Order
required that guard band users employ frequency coordination procedures in cooperation with
602
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 17-19. Access Spectrum/Pegasus propose that
we apply OOBE limits as recommended in WT Docket No. 06-169 by Access Spectrum/Pegasus and the 700 MHz
Technical Working Group. See Ex Parte from Ruth Milkman, Counsel for Access Spectrum, LLC and Kathleen
Wallman, Adviser to Pegasus Communications Corporation, to Marlene H. Dortch, Secretary, FCC in WT Docket
Nos. 06-169 and 96-86 (filed Jan. 26, 2007) (Second Report of the 700 MHz Technical Working Group or Second
TWG Report).
603
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 19. Specifically, in the event that wideband
operations are permitted, Access Spectrum/Pegasus recommend that the 76 + 10log P/65 + 10log P attenuation
requirement begin 1 megahertz inside the public safety spectrum, or 764/794 MHz, respectively. Access
Spectrum/Pegasus state that, in the event that we do not permit wideband operations in the public safety broadband
block, we should require A Block licensees to meet the 76 + 10log P/65 + 10log P attenuation requirement 1.5
megahertz inside the public safety broadband block, i.e. 764.5/794.5 MHz, respectively. Access Spectrum/Pegasus,
however, do not provide a basis for this difference.
604
Id.
605
See Access Spectrum/Pegasus 700 MHz Further Notice Comments at 17.
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700 MHz public safety coordinators, and prohibited the use of cellular architectures in the Guard
Bands.606 Given the elevated risk of receiver overload interference to public safety posed by the
Guard Bands’ adjacency to narrowband operations, the Commission felt that it was advisable to
provide a process through which a Guard Bands licensee and a public safety licensee could select
operating frequencies that are as far from one another as possible, thereby minimizing the risk of
harmful interference to the public safety operation.607 The Commission concluded that frequency
coordination was an essential requirement for Guard Bands users given the spectral proximity of
public safety operations.608 Further, because the Commission required such frequency
coordination, the Commission restricted operation in the Guard Bands to entities that do not use
cellular system architectures.609 Interference between public safety operations and systems using
similar architectures—e.g., high-power base stations providing coverage to a large geographic
area—can generally be resolved through the required frequency coordination without much
difficulty. Systems employing cellular architectures, however, create a high density of potential
interference sources to public safety operations.610 The Commission concluded that attempting
to remedy such interference would be a complex, difficult task of coordinating frequencies
between each commercial base station, and the various public safety systems operating in the
area.611 The Commission therefore prohibited the use of cellular architectures in the Guard
Bands spectrum.
264. Access Spectrum/Pegasus argue that we should no longer apply the stringent
coordination requirements,612 and Access Spectrum/Pegasus and Arcadian argue that the
606
See Upper 700 MHz Second Report and Order, 15 FCC Rcd at 5307-08 ¶ 17. The Commission noted that the
significant interference problems arising from the adjacency of 700 MHz commercial and public safety spectrum are
further compounded by the conflicting network architectures typically employed by public safety narrowband
operations and commercial systems. Cellular systems, by design, are composed of large numbers of base stations
within a relatively small geographic area. Public safety systems, on the other hand, are typically composed of highpowered base stations operating at a few sites that provide coverage to a large geographic area. This mix of network
architectures often result in an interference scenario—sometimes referred to as “near-far”—that arises when a
cellular system operates in close proximity to a public safety system. In the near-far scenario, interference occurs
where a public safety mobile/portable unit receives a stronger signal from a nearby, adjacent channel commercial
base station rather than from the desired, distant public safety transmitter. The Commission found it necessary to reband the 800 MHz band to resolve this type of “near-far” interference, which, in that band, was “caused by a
fundamentally incompatible mix of two types of communications systems: cellular-architecture multi-cell systems—
used by ESMR and cellular telephone licensees—and high-site non-cellular systems—used by public safety, private
wireless and some SMR licensees . . . .” See 800 MHz Report and Order, 19 FCC Rcd at 14972-73 ¶ 2.
607
700 MHz Guard Bands Notice, 21 FCC Rcd at 10421 ¶ 18.
608
Id.
609
The Commission defined a cellular system architecture as “one where large geographic service areas are
segmented into many smaller areas or cells, each of which uses its own base station, to enable frequencies to be
reused at relatively short distances.” Upper 700 MHz Second Report and Order, 15 FCC at 5306 ¶ 14 n.34.
The Commission noted that its definition is similar to that established in 47 C.F.R. ¶ 22.99. Id.
610
Id. at 5308-09 ¶ 19.
611
Id.
612
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 20.
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prohibition on cellular architecture should be removed.613 Access Spectrum/Pegasus assert that
deployment across the 700 MHz Band will likely be low-site, low-power systems, and that
maintaining the cellular architecture prohibition will prevent the deployment of next-generation
broadband operations, including any network that may be shared with public safety operations.614
Because the reconfigured Guard Band A Block will no longer be located adjacent to public
safety spectrum, we find that it is no longer necessary to apply our frequency coordination
requirement, and, consequently, our prohibition against cellular architecture with respect to A
Block licenses. We believe that continuing to apply such rules would interfere with the ability of
licensees and other users of A Block spectrum to deploy broadband service, enter into
arrangements with other 700 MHz commercial entities, as well as prevent any efficiencies or
economies of scale that may result from network sharing. Accordingly, we will no longer apply
Sections 27.601(d) and 27.2(b) to reconfigured A Block licenses.615
265. Removal of the 746-747 MHz A Block Guard Band. The power limit for base
stations operating in the Lower and Upper 700 MHz Band commercial spectrum is 1 kW ERP.616
Base stations in the Lower 700 MHz Band, however, may operate at power levels up to 50 kW
ERP provided they meet a power flux density (PFD) limit of 3 mW/m2 on the ground within 1
kilometer of the station.617 Through the use of this PFD limit, a transmission from a 50 kW ERP
base station would appear, to an adjacent band receiver operating in the vicinity of the base
station, like a transmission from a 1 kW ERP base station operating without a PFD constraint. It
is therefore unnecessary to retain the A Block Guard Band at 746-747 MHz to shield Upper 700
MHz Band C Block operations from interference from high power operations allowed in the
Lower 700 MHz Band C Block.618 Moreover, if the winner of the 22 MHz Upper 700 MHz
Band C Block were concerned about potential interference from higher power operations in the
adjacent Lower 700 MHz Band C Block despite the PFD limit, it would have more than ample
spectrum to employ an internal guard band.619 We also note that the 746-747 MHz Guard Band
was not adopted, as Ericsson implies, “to create a buffer between incompatible [commercial]
spectrum blocks.”620 Rather, the Commission allocated the Guard Bands “to ensure that the
613
Access Spectrum/Pegasus 700 MHz Further Notice Comments at 20; Arcadian 700 MHz Further Notice Reply
Comments at 9.
614
See id.
615
See 47 C.F.R. §§ 27.2(b), 27.601(d).
616
See 47 C.F.R. §§ 27.50(b), (c).
617
See 47 C.F.R. §§ 27.50(c), 27.55(b).
618
See AT&T 700 MHz Further Notice Comments at 5.
619
See Verizon Wireless 700 MHz Further Notice Comments at 16 (removal of A Block Guard Band at 746-747
MHz “can be undertaken without creating new interference to commercial users, because the C Block is increased in
size, to 22 MHz, allowing for some of the spectrum to be used for an ‘internal guard band.’”); see also AT&T 700
MHz Further Notice Comments at 5 n.5 (“it is critical that the Upper 700 MHz C Block license be allocated 11 MHz
(2 x 5.5 MHz) so as to provide the licensee with the capability of utilizing an internal guard band”).
620
Ericsson 700 MHz Further Notice Comments at 20.
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public safety bands are protected from interference,”621 and it placed a 1-megahertz block at 746747 MHz “to allow for a paired block” architecture.622
(ii)
Treatment of Reconfigured B Block
266. Background. While the reconfiguration of the Upper 700 MHz Band and
placement of the Guard Band A Block between commercial spectrum blocks permit us to
liberalize the technical rules applicable to A Block licensees, similar relaxation of technical
requirements for the reconfigured Guard Band B Block is not feasible as it remains adjacent to
public safety narrowband spectrum. We received no comment supporting additional flexibility
for future operations in the reconfigured B Block in this context.
267. Discussion. We find that it would not be prudent to make any changes that would
introduce the possibility of increased interference to adjacent public safety operations. Because
all existing Guard Band A and B Block licensees, with the exception of grandfathered PTPMS II
licenses discussed below, are voluntarily repacking their spectrum into a new A Block, the
reconfigured B Block allocation will be vacant for the time being. Any future operations in the
Guard Band B Block will continue to be bound by our existing Guard Bands technical rules
requiring frequency coordination and prohibiting the use of cellular system architectures. These
continued technical restrictions on the B Block can be fully taken into account as the
Commission considers future uses for the block. We will, however, create additional flexibility
by providing operations in the reconfigured B Block the option of employing either the existing
ACP limits set forth in Section 27.53(d) of the Commission’s rules, or the same OOBE limits
used by other commercial licensees to protect public safety, i.e. 76 + 10log P dB per 6.25 kHz
for base stations, and 65 + 10log P dB per 6.25 kHz for mobile units.623
(iii)
Treatment of PTPMS II Licenses
268. Background. As discussed above, PTPMS II is not participating in the
“repacking” of incumbent Guard Bands licenses, and instead has chosen to retain its licenses
under the terms of their current authorizations.624
269. Discussion. To ensure interoperability in border areas with Canada we are
modifying the PTPMS II licenses by relocating its Guard Band A Block license to 757-758 MHz
and 787-788 MHz along with the “repacked” Guard Band A Block licenses, and by shifting its
Guard Band B Block licenses down 1 megahertz to 761-763 MHz and 791-793 MHz.625
Although PTPMS II has elected to remain under the existing terms of its licenses, we conclude
that, for purposes of regulatory parity, we should apply to the PTPMS II A Block the same
technical rules that will apply to the reconfigured A Block licenses. As noted, the new spectral
621
Upper 700 MHz First Report and Order, 15 FCC Rcd at 491 ¶ 33.
622
Id. at ¶ 34.
623
By permitting B Block licensees the option of complying with the 76 + 10log P/65 + 10log P attenuation
requirement, we resolve the issue identified in the 700 MHz Guard Bands Notice with respect to the appropriate
emission limits that Guard Band licensees should use for channel bandwidths greater than 150 kHz. See 700 MHz
Guard Bands Notice, 21 FCC Rcd at 10428 ¶ 34.
624
See supra Section III.A.1.b.ii.a.
625
Id.
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position of the A Block between the commercial Upper 700 MHz Band C and D Blocks makes it
no longer necessary to apply stringent Guard Bands technical rules to such licenses. Because the
PTPMS II A Block will be situated similarly to the reconfigured A Block operations, we find
that it is in the public interest to apply the same technical rules.
270. The PTPMS II B Block licenses, however, will remain adjacent to the public
safety allocation in two markets. We continue to find it necessary to ensure that public safety
operations remain free from harmful interference from commercial systems. Accordingly, we
conclude that the existing B Block technical rules continue to apply to PTPMS II’s B Block
licenses given their adjacency with public safety spectrum. We note that although the PTPMS II
B Block licenses will occupy the same spectrum as the D Block in two markets, we do not have
the same concerns regarding interference by the D Block because the D Block will operate in
concert, and share facilities, with the Public Safety Broadband Licensee pursuant to the 700 MHz
Public/Private Partnership discussed in this order.
(iv)
License Terms
271. Background. In the 700 MHz Report and Order, we revised the license terms for
non-Guard Band commercial spectrum in the 700 MHz Band from January 1, 2015 to February
17, 2019.626 We did not, however, apply to the Guard Bands the same revised license term.627
272. Discussion. In light of the changes we are making to the Upper 700 MHz band
plan, we find that revision to the license term with respect to the reconfigured Guard Band A
Block is appropriate in order to provide regulatory parity with other commercial licensees and to
provide A Block licensees with a reasonable opportunity to deploy systems under their revised
technical rules. Accordingly, the license terms for the A Block licenses, including the PTPMS II
A Block, shall extend to 10 years after the end of the DTV transition, through February 17, 2019,
and subsequent renewal terms will be 10 years.
273. With respect to the incumbent PTPMS II B Block operations, however, we do not
believe it is in the public interest to permit these grandfathered B Block licensees to operate
indefinitely at the critical juncture between the public safety broadband spectrum and the D
Block spectrum, preventing the latter from deploying a ubiquitous nationwide footprint.
Therefore, we will retain the existing license terms for the grandfathered PTPMS II B Block
licenses, rather than extending them to match the other commercial licensees. Furthermore, we
do not provide a renewal expectancy to the PTPMS II B Block licenses, the terms of which will
expire in 2015.
3.
Auctions-Related Issues
a.
Anonymous Bidding
274. Background. In the 700 MHz Further Notice, we sought comment on whether to
use anonymous bidding (or “limited information”) procedures in the auction of new 700 MHz
licenses, in order to deter anticompetitive behavior that may be facilitated by the release of
information on bidder interests and identities.628 Current competitive bidding rules permit
626
See 700 MHz Report and Order, 22 FCC Rcd at 8096 ¶ 84.
627
Id.
628
700 MHz Report and Order, 22 FCC Rcd at 8153 ¶ 246.
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withholding information on bidder interests and identities prior to the close of the auction.629
Accordingly, the Commission could wait to make a final decision regarding the information
procedures for the auction as part of the pre-auction process, in which specific procedures are
adopted after seeking public comment on proposed auction designs. In prior auctions, the
Commission has adopted procedures, made contingent on pre-auction assessments of likely
competition in the auction, for withholding public release until the close of the auction of: (1)
bidders’ license selections on their short form applications; and (2) the identities of bidders
placing bids.630
275. We noted in the 700 MHz Further Notice that revealing all information during the
auction process potentially may result in harms as well as benefits.631 Those harms and benefits
depend in part on how licenses offered in the auction will be used. Accordingly, we expressly
sought comment on whether the potential to use new 700 MHz Band licenses to create
alternatives to existing broadband networks increases the benefits from anonymous bidding by
making it harder for existing providers to identify and impede the efforts of potential new
entrants to win.632 We also sought comment on whether the lack of readily available
technologies for use in the band, relative to existing broadband networks in other bands, reduces
the potential benefit to bidders and the public of bidders using information about the identities of
other bidders to guess what technologies will be deployed.633
276. In prior auctions, the Commission has adopted anonymous bidding procedures
and made final implementation of those procedures contingent on a pre-auction measure of the
likely competitiveness of the auction. More specifically, the Commission has assessed likely
competition in the auction based on the level of upfront payments, which establish the eligibility
of auction participants to bid on licenses.634 The level of upfront payments roughly reflects the
likely level of competition for licenses offered in the auction. Assuming other factors are
consistent, a higher level of competition in the auction may reduce the potential for bidders to
use bidding information in an anti-competitive manner. Consequently, we asked commenters to
address whether we should make the use of anonymous bidding in the 700 MHz auction
contingent on a pre-auction assessment of likely competition in the auction, in light of the
balance of potential harms and benefits from releasing information on bidder identities and
interests during the auction of new 700 MHz Band licenses.635 We further sought comment on
629
47 C.F.R. § 1.2104(h).
630
700 MHz Report and Order, 22 FCC Rcd at 8153 ¶ 247; see, e.g., Auction of 1.4 GHz Band Licenses, Scheduled
for February 7, 2007, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other
Procedures for Auction No. 69, Public Notice, 21 FCC Rcd 12393, ¶¶ 4-6 (2006); Auction of Advanced Wireless
Services Licenses Scheduled for June 29, 2006, Notice and Filing Requirement, Minimum Opening Bids, Upfront
Payment and Other Procedures for Auction No. 66, Public Notice, 21 FCC Rcd 4562, ¶¶ 140-157 (2006) (“Auction
No. 66 Procedures Public Notice”).
631
See 700 MHz Further Notice, 22 FCC Rcd at 8153 ¶ 247; see also Auction No. 66 Procedures Public Notice at ¶¶
140-157.
632
700 MHz Further Notice, 22 FCC Rcd at 8154 ¶ 248.
633
Id.
634
See, e.g., Auction No. 66 Procedures Public Notice, 21 FCC Rcd at ¶ 142.
635
700 MHz Further Notice, 22 FCC Rcd at 8154 ¶ 248.
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the appropriate method of assessing likely competition in the 700 MHz Band auction.636 Finally,
we sought comment on whether the use of anonymous bidding should be a factor in determining
the final band plan, given the potential importance of the band and the band plan with respect to
competition in broadband services.637
277. We received comments both in support of and in opposition to the use of
anonymous bidding in the 700 MHz Band auction. Commenters supporting anonymous bidding
in response to the 700 MHz Further Notice elaborate on arguments made in this proceeding prior
to the 700 MHz Further Notice. Some parties have previously asserted that anonymous bidding
for new 700 MHz licenses is critical to promoting competitive entry in wireless broadband.638 In
response to the 700 MHz Further Notice, supporters contend that anonymous bidding would
protect bidders against the possibility of retaliatory or “blocking” bids.639 Frontline asserts that
the Commission should use anonymous bidding in the auction of 700 MHz Band licenses
because the benefits of disclosing bidding information will be limited but the harms will be
substantial.640 Google notes that anonymous bidding such as the Commission proposes is “not
uncommon” in commercial auctions.641 Another commenter argues from his experience that
anonymous bidding is necessary to “level the playing field” between large and small bidders.642
Verizon Wireless notes that “[i]mposing limitations on the release of bidder information prior to
and during the course of an auction ensures that bidders will be appropriately focused on the
licenses and their value, not on other bidders and their bidding strategies.”643 In an attempt to
buttress the logical and anecdotal arguments supporting anonymous bidding, PISC submitted
studies by Gregory Rose that purport to demonstrate that incumbents engaged in retaliatory
636
Id.
637
700 MHz Further Notice, 22 FCC Rcd at 8153 ¶ 246. PISC contends that the more licenses the Commission
offers, the greater the need for anonymous bidding, to thwart bidders using additional licenses to “signal” other
bidders and to protect new entrants attempting to aggregate a larger number of licenses. PISC 700 MHz Further
Notice Comments at 33-34. However, PISC supports anonymous bidding generally, and does not make this position
contingent on the band plan adopted. In opposition, MetroPCS notes that the availability of multiple blocks in the
band plan makes “blocking” bidding strategies more difficult to implement, thereby lessening any perceived need
for anonymous bidding to protect against such strategies. MetroPCS 700 MHz Further Notice Comments at 47-48.
While this observation suggests that the need for anonymous bidding may be less for band plans with larger number
of blocks, MetroPCS opposes anonymous bidding generally, and does not make this position contingent on the band
plan adopted.
638
PISC April 3, 2007 Ex Parte Comments in PS Docket No. 06-229 and WT Docket Nos. 06-150, 05-211, 96-86 at
13; Letter from Harold Feld, counsel to Media Access Project, to Marlene H. Dortch, Secretary, FCC, Ex Parte in
WT Docket No. 06-150 (filed Apr. 19, 2007) (contending that accompanying Affidavit of Dr. Gregory Rose
demonstrates that the open auction structure of Auction No. 66 permitted incumbents to engage in retaliatory
bidding).
639
See PISC 700 MHz Further Notice Comments at 30-34; Frontline 700 MHz Further Notice Comments at 56;
Google 700 MHz Further Notice Comments at 10; McBride 700 MHz Further Notice Comments at 11; Verizon
Wireless 700 MHz Further Notice Comments at 35-36.
640
Frontline 700 MHz Further Notice Comments at 56.
641
Google 700 MHz Further Notice Comments at 10.
642
McBride 700 MHz Further Notice Comments at 11.
643
Verizon Wireless 700 MHz Further Notice Comments at 36.
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bidding and used strategies to block new entrants in Auction No. 66, the recent Commission
auction of AWS-1 licenses.644 With respect to how to implement anonymous bidding, several
supporters contend that the use of anonymous bidding should not be contingent on a pre-auction
assessment of likely competition. PISC contends that participants in Auction No. 66
manipulated the Commission’s pre-auction assessment in Auction No. 66,645 while Verizon
Wireless contends that the assessment is insufficient and potentially subject to manipulation.646
644
PISC 700 MHz Further Notice Comments, Attach. B, C. We do not find that the Rose studies support the claims
made by PISC. To support the claim of retaliatory bidding, Rose applies procedures used by Cramton and Schwartz
to study an earlier auction and identifies less than two-tenths of one percent of the bids placed in Auction No. 66 as
“retaliatory.” PISC 700 MHz Further Notice Comments, Attach. B at 7-9. The Cramton and Schwartz study,
however, relied heavily on “code bids” to help focus the search for likely retaliatory bids. Cramton, P. and J.
Schwartz, “Collusive Bidding in FCC Spectrum Auctions,” Contributions to Economic Analysis and Policy I:1
(2002) (“Cramton and Schwartz”). Auction No. 66 did not permit bidders to customize bid amounts to place “code
bids.” PISC 700 MHz Further Notice Comments, Attach. B at 8. As a result, Rose’s application of the Cramton and
Schwartz methodology to Auction No. 66 is less likely to produce reliable results. In addition, unlike the Cramton
and Schwartz study, Rose does not control for alternative hypotheses before making conclusions about the effects of
retaliatory bidding on the auction outcome. Cramton and Schwartz at 9. In his study, Rose finds 31 retaliatory bids
but does not identify the bidders placing those bids or whether they are incumbents. PISC 700 MHz Further Notice
Comments, Attach. B at 8. Absent such information, the study does not demonstrate its claim that incumbents
engaged in retaliatory bidding. Moreover, Rose finds no instances of retaliatory bidding in the REAG block, which
appears to be inconsistent with claims in the study that incumbents directed their efforts at denying a national
footprint to Wireless DBS, which bid primarily in the REAG blocks. Id. at 9.
To argue that bidders in Auction No. 66 engaged in blocking behavior, Rose presents pages of “challenge rates,”
without defining how the rates are calculated. PISC 700 MHz Further Notice Comments, Attach. C at 6-9. Without
a basic definition, it is impossible to determine whether the numbers are meaningful. Rose asserts that a higher
challenge rate indicates blocking behavior. However, a more careful investigation of the bidding activity behind
some of the highest rates of challenge suggests nothing irregular. For example, Cellco bid against Command
Connect, LLC, six times in rounds 121-132 on the Louisiana-3 (CMA 456) license, which is adjacent to an REAG
license on which Cellco was the provisional winner. This behavior earned them an unusually high challenge rate of
8.884 (compared to challenge rates generally between 0 and -1). Id. at 8. Atlantic Wireless bid against NTELOS
only once, but this single bid somehow earned a very high challenge rate of 4.2286. Id. at 16. These examples
undermine claims that challenge rates capture any meaningful information, especially in the absence of information
on how the rates are derived. Given these and other shortcomings in the Rose studies, the studies do not
demonstrate that incumbents engaged in retaliatory and blocking bidding behavior to deter entry in Auction No. 66.
645
PISC 700 MHz Further Notice Comments at 33. We note that PISC’s theory appears premised on a
misunderstanding of the pre-auction application process and the Commission pre-auction assessment of competition.
PISC speculates that “[b]ecause the Commission allows parties to correct imperfect applications, parties willing to
front ‘dummy bidders’ to drive up the ratio have the opportunity to game the system with precision. After the initial
application round, the parties fronting dummy bidders will correct a sufficient number of applications to ensure that
– as happened in the AWS auction – just enough bidders qualify to trigger the open bidding rules.” Id. Contrary to
PISC, the Commission has not based the use of anonymous bidding on the number of qualified applications but
rather on the total amount of upfront payments received from qualified bidders. And while the Commission affords
applicants an opportunity to correct the data submitted in applications, there is not an analogous opportunity to
“correct” upfront payments. Thus, contrary to PISC, the Commission’s procedures do not enhance the ability of any
party to “game” the system.
646
Verizon Wireless 700 MHz Further Notice Comments at 37-38.
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278. A number of commenters contend that anonymous bidding would disadvantage
smaller bidders.647 These commenters argue that smaller bidders rely on information regarding
the identity of other parties placing bids to assess the likely post-auction market, with respect to
technologies likely to be deployed and potential partnerships with other licensees, and to provide
sufficient assurances to their financiers regarding market valuations.648 RTG notes that bidders
are subject to other sanctions for the anti-competitive behavior that anonymous bidding seeks to
prevent.649 MetroPCS states that it relies on information regarding parties interested in particular
markets to assess its ability to differentiate itself from potential competitors in a market.650
Several opponents of anonymous bidding deny any inference that their bidding in past auctions
was motivated by “blocking” strategies.651
279. A few opponents of anonymous bidding suggest revisions to the Commission’s
procedures, in the event that the Commission employs anonymous bidding. Alltel proposes that
the Commission should disclose round-by-round changes in the bidding eligibility of auction
participants.652 USCC proposes that the Commission make the use of anonymous bidding
contingent on a pre-auction assessment of likely competition based on the eligibility ratio, as it
did in Auction No. 66.653 Further, USCC contends that the eligibility ratio of 3.0 used in Auction
No. 66 was unnecessarily high and should be lowered to 2.5.654
280. Discussion. Based on the current record, we conclude that the public interest will
be served if the upcoming auction of 700 MHz Band licenses for which we establish service
rules today is conducted using anonymous bidding procedures. We further conclude, based on
the current record, that implementation of anonymous bidding procedures during the upcoming
auction of new 700 MHz Band licenses should not be contingent on a pre-auction measurement
of likely competition based on an eligibility ratio. We find that the record in this proceeding
indicates that implementing anonymous bidding procedures will reduce the potential for anti647
See USCC 700 MHz Further Notice Reply Comments at 16-18 (citing comments filed in opposition to
anonymous bidding). Prior to the 700 MHz Further Notice, one party contended that smaller auction participants
may encounter difficulties with financing if the Commission withholds information during the auction. See Letter
from George Y. Wheeler, counsel to United States Cellular Corp., to Marlene H. Dortch, Secretary, FCC, Ex Parte
in WT Docket Nos. 06-150, 06-169, 96-86, 05-265, and 00-139, and PS Docket No. 06-229 (filed Mar. 27, 2007) at
7.
648
See USCC 700 MHz Further Notice Reply Comments at 16-18.
649
RTG 700 MHz Further Notice Comments at 14-15; USCC 700 MHz Further Notice Reply Comments at 17.
RTG also speculates that larger bidders will have sufficient resources to analyze available bidding information and
determine bidder identities, leaving smaller bidders at a relative disadvantage. RTG 700 MHz Further Notice
Comments at 9; USCC 700 MHz Further Notice Reply Comments at 17.
650
MetroPCS 700 MHz Further Notice Comments at 47 (“MetroPCS might decide to continue bidding at a higher
per pop price in this market, as compared to moving to a lower cost market containing new entrants with business
plans less distinguishable from that of MetroPCS.”)
651
See USCC 700 MHz Further Notice Reply Comments at 18-19 & n.37 (summarizing comments by Aloha,
AT&T, MetroPCS, and SpectrumCo).
652
Alltel 700 MHz Further Notice Comments at 9-10.
653
USCC 700 MHz Further Notice Reply Comments at 16.
654
USCC 700 MHz Further Notice Reply Comments at 17.
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competitive bidding behavior, including bidding activity that aims to prevent the entry of new
competitors.655 The Commission has delegated to the Wireless Bureau authority to establish
auction procedures based on comment solicited shortly prior to the auction.656 Consistent with
that authority, we delegate to the Wireless Bureau the discretion to adopt specific procedures
implementing these conclusions, taking into account the further record developed during our
standard pre-auction process for establishing auction procedures and the possibility that
alternative licenses may be offered at auction as described below.
281. As the Commission noted prior to the AWS-1 auction (Auction No. 66), in the
years since the Commission’s simultaneous multiple round auction design was developed,
economists have observed, as a potential drawback to disclosing information, that bidders could
use the information revealed over the multiple rounds to signal each other and implement a
division of the licenses at lower than market prices, and in some cases, to retaliate against
competing bidders.657 Since some types of signaling and coordinated bidding are very hard to
detect in auction data, making it difficult to pursue enforcement actions after such alleged
activity has occurred, it is important to reduce the potential for such collusive bidding behavior
to occur in the first place, in circumstances in which we believe collusion is most likely to occur.
In addition, it is important to reduce the potential for anti-competitive unilateral behavior, such
as retaliatory bidding, which may be used by incumbents to foreclose new entry into a market,
even when there is a significant level of competition in an auction. The potential for these types
of anti-competitive bidding behavior is greater when an auction offers multiple, substitutable
blocks of licenses for sale, when license prices are expected to be relatively high, and when the
auction outcome may have a significant effect on post-auction market structure. Given that the
auction of new 700 MHz Band licenses is likely to meet these criteria, the potential harm from
both coordinated and unilateral behavior that is facilitated by full information on bidders’
interests and bidding behavior appears likely to outweigh the benefits. We note that the
Commission has successfully conducted bidding using procedures to limit disclosure of certain
information on bidder interests and identities prior to the close of the auction.658
282. Although some potential bidders may find information regarding bidding by other
parties useful, on balance this benefit likely is substantially outweighed by the enhanced
competitiveness and economic efficiency of the auction that will result from withholding public
release of certain information about bids and bidder identities prior to and during the upcoming
700 MHz Band auction. We disagree with those commenters that contend that use of the
information outweighs potential anti-competitive uses of bidding information to deter or exclude
655
As discussed earlier, we do not rely on the Rose studies as a basis for this conclusion.
656
47 C.F.R. §§ 0.131, 0.331.
657
“Auction of Advanced Wireless Services Licenses Scheduled for June 29, 2006; Comment Sought on Reserve
Prices or Minimum Opening Bids and Other Procedures,” Public Notice, 21 FCC Rcd 794, 799 (2006).
658
See, e.g., “Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No.
71,” Public Notice, 22 FCC Rcd 9247 (2007). The Commission also established anonymous bidding procedures for
two other auctions (Auctions 66 and 69) contingent on a pre-auction assessment on the likely competitiveness of the
auction. Since the competitiveness threshold was met in those two auctions, the bidding was conducted with full
information disclosure between bidding rounds. We note that with respect to three of the four auctions for which
comment has been sought on anonymous bidding procedures, there were no comments at all submitted on the
anonymous bidding issue.
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new entrants. Given the inherent uncertainties regarding future technologies that may be used in
the 700 MHz Band, we conclude that the benefit to some bidders of having detailed information
regarding bidding by others cannot outweigh the potential anti-competitive use of such
information. The potential benefit of knowing the identity of other parties placing bids for
particular licenses appears likely to be less in this auction than in past Commission auctions, in
light of the early stage of development with respect to new services in these frequencies.659 We
are not persuaded by USCC’s contention that such uncertainties only heighten the importance of
bidding information.660 Uncertainties regarding what market leaders and equipment
manufacturers might do in this band after it is licensed will not be substantially mitigated during
the auction by information regarding the identities of parties placing bids. Moreover, bidding
information during the auction is not the only source of information regarding technologies
likely to be deployed in this band. Anonymous bidding does not “blackout” all information
about the plans of market leaders and equipment suppliers in 700 MHz, any more than bidding
information provides certainty regarding what those plans ultimately will be. Furthermore, even
under anonymous bidding procedures, the Commission has disclosed the identity of parties
participating in the auction.661 Finally, we find Alltel’s proposal to disclose round-by-round
changes in the bidding eligibility of auction participants to be inconsistent with our conclusions
here.
283. As indicated above, for several reasons we also conclude that we should employ
anonymous bidding procedures even if the pre-auction eligibility ratio indicates that competition
in the auction will be significant. First, anonymous bidding is unlikely to result in the loss of
significant benefits from disclosing detailed bidding information during the auction, given that
existing uncertainties make the likelihood of any such benefits relatively low in this band.
Second, even in an auction with many competitors, individual bidders still could use retaliatory
bidding unilaterally to block market entry. Finally, we also note that the eligibility ratio is
inherently a very rough measure of competition in an auction, as it is not unusual for a bidder to
submit an upfront payment and never place a bid or for a bidder to fail to utilize the full
eligibility its upfront payment provides. Accordingly, we conclude that the Commission’s final
implementation of anonymous bidding procedures should not be made contingent on any preauction eligibility ratio assessment of likely competition in the auction.
284. For all the above reasons, we conclude that the record regarding the available 700
MHz Band licenses and our recent experience with anonymous bidding in other auctions indicate
that the Commission's statutory mandates under Section 309(j)(3) of the Communications Act
would better be served by adopting anonymous bidding procedures for the upcoming auction of
700 MHz Band licenses. Such procedures should withhold from public release until after the
auction closes any information that may indicate specific applicants’ interests in the auction,
including information such as their license selections and the identities of bidders placing bids or
taking other bidding-related actions, such as withdrawals. We further conclude that the
implementation of anonymous bidding procedures in the upcoming auction of new 700 MHz
659
PISC 700 MHz Further Notice Comments at 32.
660
USCC 700 MHz Further Notice Reply Comments at 18.
661
See Auction of Broadband PCS Spectrum Licenses, 23 Bidders Qualified to Participate in Auction 71; Limited
Information Procedures to be Used,” DA 07-1921, Public Notice, 22 FCC Rcd 8347 (2007).
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Band licenses should not be contingent on the likely level of auction competition indicated by
pre-auction bidder eligibility. Accordingly, we direct the Wireless Bureau to propose and seek
comment on detailed anonymous bidding procedures for the upcoming auction of the 700 MHz
Band licenses consistent with these conclusions, including how anonymous bidding would
impact a potential re-auction of one or more spectrum blocks if the reserve prices for the
individual blocks are not met, and any additional continuation or alteration to the anonymous
bidding rules necessary to preserve the integrity of the subsequent auction.
b.
Declaratory Ruling on Anti-Collusion Rule Reporting
Requirement
285. To further our policy of preventing collusive behavior in Commission auctions,
we take this opportunity to clarify by declaratory ruling and conforming textual edit the
obligation that applicants in Commission auctions have to report any communications of bids or
bidding strategies that are prohibited by Section 1.2105(c)(1) of the Commission’s rules.662
Pursuant to Section 1.2105(c)(6), any applicant that makes or receives such a communication
shall report such communication in writing to the Commission immediately, and in no case later
than five business days after the communication occurs.663 As noted in the Commission’s Order
adopting Section 1.2105(c)(6), the Commission cannot “take on the impossible task of screening
all applicant communications” and, therefore, “the responsibility for identifying potentially
unauthorized communications [must fall] on auction applicants.”664 The reports provided by
applicants are essential to the Commission’s ability to enforce its rule. Absent such reports,
parties might find it easy to evade enforcement for extended periods of time, and possibly
altogether.
286. Accordingly, the reporting requirement “obligate[s] parties to notify the
Commission of communications that appear to violate the anti-collusion rule and to allow the
Commission to determine whether a violation has occurred.”665 Consistent with this purpose,
applicants have a continuous obligation to make such reports extending beyond the five business
days after the communication occurs. This declaratory ruling, and the conforming modification
of Section 1.2105(c)(6), expressly state the continuing nature of this obligation. We thus clarify
that the Commission can and will enforce the obligation so long as it remains unfulfilled. We
emphasize the continuing nature of the duty to report to preclude any attempt to evade the
obligation by waiting out the expiration of the statute of limitations applicable for the
enforcement of forfeitures666 and to reinforce our ability to detect collusion, which is critical to
our ability to enforce and thereby discourage collusive behavior in our auctions.
662
See 47 C.F.R. § 1.2105(c)(1).
663
47 C.F.R. § 1.2105(c)(6).
664
Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, Seventh Report and Order,
16 FCC Rcd 17546, 17554 ¶ 15 (2001).
665
Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, Seventh Report and Order,
16 FCC Rcd 17546, 17554 ¶ 15 (2001).
666
See 47 U.S.C. § 503(b)(6).
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FCC 07-132
Package Bidding
287. Background. In the 700 MHz Further Notice, we sought comment on whether to
permit package bidding for one or two Upper 700 MHz blocks in some proposed band plans in
order to facilitate license aggregation providing a nationwide footprint of 11- or 22-megahertz
spectrum blocks.667 With package bidding, a bidder may place an all-or-nothing bid on multiple
licenses, and thereby avoid the risk of winning less than all the licenses needed to justify its bid.
For example, a bidder whose business plan is premised on realizing economies of scale may need
to win a large number of licenses in order to justify the bid that it would make if it could win all
of them. The risk of winning less than all the licenses needed to support the amount of the
aggregate bid is sometimes known as the “exposure problem.” As noted in the 700 MHz Report
and Order, our current competitive bidding rules authorize the use of package bidding.668
Consequently, no modifications to the competitive bidding rules are needed in order to conduct
package bidding as contemplated herein.
288. Commenters are divided on the issue of package bidding for the upcoming
auction of new 700 MHz Band licenses. Commenters that support package bidding contend that
it is essential for a new entrant seeking to aggregate licenses and offer service nationwide.669
AT&T asserts that “a bidder whose business model requires nationwide coverage to achieve
adequate scale for new technologies and new devices may not be able to participate in the
bidding unless package bidding is an option.”670 The 4G Coalition notes that by increasing the
range of potential bidders and competition for the licenses package bidding may enhance the
Commission’s licensing process, regardless of whether any of the ultimate licensees use package
bidding.671 In addition, an exhibit to Frontline’s comments observes that, absent package
bidding, the exposure problem creates an opportunity for competitors to block a would-be
package bidder without actually competing for all of the licenses in the package.672 In the event
the Commission adopts package bidding, a few additional commenters support package bidding
in bands with small licenses.673
289. Most commenters that oppose package bidding contend that any form of package
bidding will disadvantage bidders not bidding on packages.674 Alltel contends that package
667
See 700 MHz Further Notice, 22 FCC Rcd at 8134 ¶ 191 (Band Plan Proposal 1, package bidding for 22
megahertz REAG C Block); ¶ 202 (Band Plan Proposal 4, package bidding for 11 megahertz REAG C Block and/or
11 megahertz REAG or EA D Block), 8139 ¶ 206 (Band Plan Proposal 5, package bidding for 11 megahertz C
Block).
668
700 MHz Report and Order, 22 FCC Rcd at 8091 ¶ 69.
669
See, e.g., Google 700 MHz Further Notice Comments at 7-8.
670
AT&T 700 MHz Further Notice Comments at 35.
671
4G Coalition 700 MHz Further Notice Comments at 10-12.
672
Frontline 700 MHz Further Notice Comments, Exhibit 1 at 22-23.
673
Embarq 700 MHz Further Notice Comments at 5-7; see Alltel 700 MHz Further Notice Comments at 9-10
(otherwise opposed to package bidding generally, Alltel asserts that if used package bidding should be used with
blocks licensed by CMA).
674
See Aloha 700 MHz Further Notice Comments at 7-8; Blooston 700 MHz Further Notice Comments at 10;
Cellular South 700 MHz Further Notice Comments at 16; Leap 700 MHz Further Notice Comments at 9; MetroPCS
(continued….)
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bidding to facilitate a nationwide package amounts to “giving away the spectrum on a
nationwide basis.”675 Others contend that the Commission’s auction provides sufficient
opportunities to assemble a nationwide footprint without package bidding.676 Finally, some
commenters contend that the Commission does not have sufficient time to address outstanding
design issues regarding an appropriate form of package bidding for the 700 MHz auction,
particularly if the Commission elects to permit package bids on some, but not all, blocks of
licenses.677 USCC and Verizon Wireless, in particular, make various assumptions about the
potential details of the auction design and raise concerns based on their assumptions.678
290. Discussion. Based on the current record, we conclude that package bidding with
respect to licenses in the Upper 700 MHz Band C Block would serve the public interest by
reducing the exposure problem that might otherwise inhibit bidders seeking to create a
nationwide footprint. Minimizing the exposure problem with package bidding should facilitate
the entry of applicants whose business plans require the economies of scale that only can be
obtained with nationwide operation. We anticipate that package bidding can be implemented so
as to shield such bidders from a potential significant exposure problem. Importantly, we also
anticipate that it can be implemented without imposing disadvantages on parties that wish to bid
on individual licenses comprising the nationwide footprint. Thus, the use of package bidding for
licenses in the Upper 700 MHz Band C Block facilitates direct competition between competing
business plans, without predetermining the outcome or favoring one business plan over the other.
291. We further conclude that the public interest in minimizing the exposure problem
for applicants whose business plans require nationwide economies of scale is satisfied by
providing package bidding solely with respect to licenses for the Upper 700 MHz Band C Block
spectrum. The C Block provides applicants with 22 megahertz of bandwidth (comprised of
paired 11-megahertz blocks), enough to enable a new entrant to offer a wide range of service
without any additional licenses. Limiting package bidding to licenses for C Block spectrum will
prevent package bidding from deterring participation by bidders, if any, that for any reason are
completely unwilling to compete against package bids. The variety of blocks and licenses not
subject to package bidding provides bidders unwilling to compete with package bids with a wide
array of opportunities.679 Finally, while it is in the public interest to enable bidders to minimize
their exposure risk to an extent consistent with other public interest goals, we do not conclude
that we need auction all 700 MHz Band licenses in a manner that minimizes the exposure risk.
Although they would be subject to some exposure risk, bidders seeking to aggregate multiple
(Continued from previous page)
700 MHz Further Notice Comments at 22; RCA 700 MHz Further Notice Comments at 18; RTG 700 MHz Further
Notice Comments at 16.
675
Alltel 700 MHz Further Notice Comments at 10.
676
SpectrumCo 700 MHz Further Notice Comments at 16; Verizon Wireless 700 MHz Further Notice Comments at
39; USCC 700 MHz Further Notice Reply Comments at 10.
677
Verizon Wireless 700 MHz Further Notice Comments at 43.
678
Verizon Wireless 700 MHz Further Notice Comments at 38-43 (objecting to the assumed details of a purported
“hybrid” auction); USCC 700 MHz Further Notice Comments at 14-16 (assuming that recently released experiments
present all the pertinent details of a package bidding auction design).
679
Google 700 MHz Further Notice Comments at 8.
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licenses in other blocks of 700 MHz Band spectrum will not be precluded from attempting to
aggregate licenses in the absence of package bidding.
292. Accordingly, we direct the Wireless Bureau, pursuant to its delegated authority
and pre-auction process, to propose and implement detailed package bidding procedures for the
auction of the Upper 700 MHz Band C Block licenses, taking into account the goals we have
articulated for package bidding and the concerns raised in this record.680 More specifically, the
Wireless Bureau should propose an auction design that includes package bidding for the C Block
licenses to facilitate the entry of a new nationwide competitor in that block, while not
introducing undue difficulties for bidders on licenses in that block that do not desire a nationwide
license. The Wireless Bureau should also explore the use of package bidding for any blocks
subject to re-auction in the event that a reserve price is not met. The Wireless Bureau, consistent
with its delegated authority and pre-auction process, may revise its proposal prior to
implementation in the auction. In order to facilitate compliance with the statutory deadlines
applicable to the auction of 700 MHz Band licenses, the Wireless Bureau has delegated authority
to conduct an auction without package bidding for the Upper 700 MHz Band C Block licenses in
the event that currently unforeseen difficulties make it impracticable to implement package
bidding for the C Block consistent with the goals we have articulated here. Finally, consistent
with our conclusions today, we direct the Wireless Bureau to adopt procedures for the auction of
licenses in other blocks of 700 MHz Band spectrum without the use of package bidding.
d.
“New Entrant” Bidding Credit
293. Background. As discussed elsewhere, we have concluded that we should not
restrict eligibility to hold any licenses in the 700 MHz Band based upon concerns about
competition in the market for broadband services. As an alternative to limiting the parties
eligible for new licenses in the 700 MHz Band, we also sought comment on whether parties
unaffiliated with incumbent wireline broadband service providers should receive a bidding credit
on licenses in one or more blocks of the Upper 700 MHz Band spectrum.681 Further comment
was requested regarding how any such new entrant bidding credits should be coordinated with
existing bidding credits for small businesses, i.e., should new entrant credits be cumulative or
exclusive of small business bidding credits.682
294. The possibility of granting “new entrant” bidding credits attracted far less
comment than other issues relating to the auction of the 700 MHz licenses. Those parties that
responded are divided on the need for a “new entrant” bidding credit.683 PISC supports such a
680
47 C.F.R. §§ 0.131, 0.331.
681
700 MHz Further Notice, 22 FCC Rcd at 8144 ¶ 221.
682
700 MHz Further Notice, 22 FCC Rcd at 8144 ¶ 221.
683
Some parties responded with alternatives appear to be beyond the scope of the 700 MHz Further Notice. Alltel
proposed that rather than grant a credit to new entrants, the Commission charge incumbents a premium. Alltel 700
MHz Further Notice Comments at 14; see also AT&T 700 MHz Further Notice Reply Comments at 9, n.30 (arguing
that the perimum is beyond the scope of the notice provided for by the 700 MHz Further Notice. WISPA proposes a
20 percent credit for existing broadband service providers, identified as parties filing FCC Form 477, that do not
have “material relationships” with a “large wireless carrier” or a “large cable operator,” when bidding on licenses in
rural CMAs. WISPA 700 MHz Further Notice Comments at 7-12; see also USA Broadband 700 MHz Further
(continued….)
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credit, while acknowledging difficulties in implementing one.684 Google also supports such a
credit, arguing that existing infrastructure gives incumbents a material advantage against other
competitors, regardless of their relative financial resources.685 Although Frontline itself does not
advocate such a credit, a study it submitted with its comments does.686 Finally, McBride also
supports the idea of such a credit, to “level the playing field.”687
295. In its comments, Wirefree Partners argues that the Commission should limit
bidding credits to designated entities.688 In its reply comments, AT&T opposed a new entrant
bidding credit as poorly defined, unsupported by the record, and not necessary to serve the public
interest.689
296. Discussion. Particularly given the scant record on a “new entrant” bidding credit,
and the open issue of how to define a “new entrant” in this context, we are not persuaded that we
should grant a “new entrant” bidding credit for 700 MHz Band licenses. Various aspects of the
licensing process to be used for new 700 MHz Band licenses will facilitate the entry of new
service providers. First and foremost, the Commission will make available multiple licenses in
each and every market. Moreover, the varied geographic sizes of the licenses offered in this
band, coupled with the large number of licenses, should offer new ventures a variety of
opportunities to provide service. In addition, we have directed the Wireless Bureau to develop a
package bidding proposal to facilitate new entrants hoping to operate on a nationwide scale.
Furthermore, we offer substantial bidding credits to small businesses, many of which may be
new entrants in the spectrum services market. In light of all these provisions, we are not
persuaded that an additional “new entrant” bidding credit is necessary to serve the public
interest. Google’s observation that parties with existing infrastructure may have an advantage
over other bidders does not, by itself, justify granting a bidding credit to parties without such
infrastructure. Accordingly, we conclude that we do not need to compound the discounts already
offered to small new entrants by existing designated entity bidding credits, or to offer large,
nationwide new entrants significant discounts on their bids.
e.
Reserve Prices
297. Background. In the Balanced Budget Act of 1997, Congress directed the
Commission to prescribe methods by which to establish reasonable reserve prices or minimum
opening bids for licenses subject to auction, unless the Commission determines that such reserve
prices or minimum opening bids are not in the public interest.690 This statutory mandate creates a
(Continued from previous page)
Notice Reply Comments at 3 (supporting WISPA proposal). Whatever merits such a targeted credit might have, it is
not as a general new entrant bidding credit.
684
PISC 700 MHz Further Notice Comments at 35.
685
Google 700 MHz Further Notice Comments at 9-10.
686
Frontline 700 MHz Further Notice Comments, Exhibit 1 at 23-25.
687
McBride 700 MHz Further Notice Comments at 8.
688
Wirefree Partners 700 MHz Further Notice Comments at 7-8.
689
AT&T 700 MHz Further Notice Comments at 9-10 (citing Wirefree Partners).
690
Balanced Budget Act of 1997, Pub. Law 105-33, 111 Stat. 251 (1997) (codified at 47 U.S.C. § 309(j)(4)(F)). The
Commission’s competitive bidding rules have, since their inception, allowed for the use of reserve prices. See
Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253,
(continued….)
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presumption that reserve prices or minimum bids are required.691 In the past, the Commission, as
a general matter, has considered establishing publicly disclosed or undisclosed reserve prices,
and has set publicly disclosed reserve prices in some cases, during the process of establishing
auction-specific procedures.692 In the Commercial Spectrum Enhancement Act,693 Congress
mandated the use of a reserve price for the Commission’s auction of Advanced Wireless Services
(AWS) spectrum in the 1710-1755 MHz band to ensure recovery of relocation costs for
government incumbent operators in that band.694
298. Discussion. We conclude that we should provide for separate aggregate reserve
prices for each block of licenses to promote our statutory objective of recovering for the public a
portion of the value of the public spectrum resource.695 If the auction results for the licenses in
any block satisfy the aggregate reserve for that block, all licenses in the block will be assigned
based on the auction results, subject to completion of the licensing process, including review of
applicants’ qualifications. The separate aggregate reserve prices should, taken together, reflect
current assessments of the potential market value of this spectrum based on various factors
including, but not limited to, the characteristics of this band and the value of other recently
auctioned licenses, such as licenses for Advanced Wireless Services.
299. We recognize that assigning 700 MHz licenses as promptly as possible will
further the significant public interest in the development and rapid deployment of new services
and the timely recovery of a portion of the public value with respect to the 700 MHz Band.
Accordingly, in the event that licenses are not assigned because the applicable block-specific
aggregate reserve is not met, we provide for a prompt auction of alternative, less restrictive
licenses for the A, B, C, and E Blocks, subject to the same applicable reserves. Our rules also
provide for the possibility of re-offering the D Block license in a subsequent auction. This will
maximize the likelihood that we can recover an appropriate portion of the value of the public
spectrum resource and license this valuable spectrum for new uses by February 18, 2009, when
the spectrum is to be clear of existing uses.
300. Block-Specific Aggregate Reserve Prices. In this proceeding, we have adopted a
variety of provisions regarding the use of the 700 MHz Band spectrum to serve the public
interest. As in any proceeding establishing service rules for licenses authorizing use of the
(Continued from previous page)
Second Report and Order, 9 FCC Rcd 2348, 2384 ¶¶ 206-07, 2387 ¶ 224 (1994); 47 C.F.R. § 1.2104(c) (1994present).
691
See Auction of 800 MHz SMR Upper 10 MHz Band; Minimum Opening Bids or Reserve Prices, Order, 12 FCC
Rcd 16354, 16358 ¶ 11 (WTB 1997).
692
See, e.g., Auction of Advanced Wireless Services Licenses Schedule for June 29, 2006, Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 66, Public Notice,
21 FCC Rcd 4562 (2006) (setting a publicly disclosed reserve price); Auction of Licenses in the 747-762 and 777792 MHz Bands Scheduled for June 19, 2002, DA 02-260, Public Notice, 17 FCC Rcd 2117, 2122-23 (2002)
(seeking comment on whether to set a publicly disclosed or undisclosed reserve price).
693
Commercial Spectrum Enhancement Act, Pub. L. No. 108-494, 118 Stat. 3986, Title II (2004) (codified in
scattered sections of Title 47 of the United States Code).
694
Id., § 203(b) (Section 203(b) amended Section 309(j) of the Communications Act by adding at the end a new
paragraph (15)).
695
47 U.S.C. § 309(j)(3)(C).
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public spectrum resource, we are obliged to consider and balance a variety of public interests and
objectives. In addition, we are required, in establishing the competitive bidding process for
assigning the licenses to seek to promote the purposes specified in Section 1 of the
Communications Act and a number of objectives. Among those objectives is the efficient and
intensive use of the electromagnetic spectrum as well as the recovery for the public of a portion
of the value of the public spectrum resource.696
301. Consistent with this objective, Congress has required that when adopting
regulations for conducting competitive bidding, the Commission shall prescribe methods by
which a reasonable reserve price will be required unless we determine that such a reserve price is
not in the public interest.697 In these circumstances, to safeguard against the possibility that
various factors, including but not limited to the service rules we adopt today, might interfere with
the recovery of a portion of the value of the public spectrum resource, we conclude that the
public interest requires a separate aggregate reserve price for each block of the 700 MHz Band
licenses subject to competitive bidding in the upcoming auction.698 The reserve prices will be in
addition to, and separate and apart from, any minimum opening bid amounts that may be
established for purposes of the upcoming auction. If the aggregate reserve is met for any block,
all licenses in that block that receive winning bids will be eligible for licensing subject to the
completion of our review of long-form license applications.
302. Given the array of different conditions imposed on the licenses for different
blocks, we recognize that bidders may place sufficient value on licenses in a particular block to
satisfy the reserve applicable to that block even though interest in licenses in another block may
be too low to satisfy the latter block’s aggregate reserve. Block-specific aggregate reserve prices
will facilitate licensing specific blocks based on block-specific auction results. We therefore
direct the Wireless Bureau, pursuant to its existing delegated authority, to adopt auction
procedures that will enable licensing of specific blocks provided that the auction results satisfy
the block-specific reserve prices. In this regard, we note that under procedures typical of
Commission auctions, a bidder would be able to raise its own provisionally winning bid(s) to
attempt to satisfy the reserve price for licenses in any spectrum block.
303. Enabling licensing to proceed on a block-specific basis furthers our statutory
objective of promoting the development and rapid deployment of new technologies, products,
and services for the benefit of the public.699 If there is sufficient interest in and value placed on
licenses in a particular block, it follows that we should make every effort to assign those licenses,
consistent with our other statutory objectives, including recovery for the public of a portion of
the value of the public spectrum resource. We conclude that it is appropriate to assess interest in
licenses in this context on a block-by-block basis. While licenses across some blocks have
greater similarities than licenses across others, for example licenses for the A and B Blocks
arguably are more similar than licenses for the A and C Blocks, each block is sufficiently distinct
696
See, e.g., 47 U.S.C. § 309(j)(3)(C) & (D).
697
47 U.S.C. § 309(j)(4)(F).
698
This includes the D Block license, which will be subject to various conditions related to the 700 MHz
Public/Private Partnership.
699
See 47 U.S.C. § 309(j)(3)(A).
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with respect to geographic license area, spectral location, spectrum bandwidth, and service rules,
that it is appropriate to consider assigning licenses in each block based on auction results for
licenses in that block alone.
304. We direct the Wireless Bureau to adopt and publicly disclose block-specific
aggregate reserve prices, pursuant to its existing delegated authority and its regular pre-auction
process, consistent with our conclusions. Given our intent that the reserve prices should
maximize the possibility of recovering an appropriate portion of the value of the public spectrum
resource while enabling licensing as promptly as possible, the Wireless Bureau should establish
the particular amounts of the block-specific aggregate reserves by taking into account a
conservative estimate of market value based on auction results for AWS-1 spectrum licenses.
For example, if we were to use the AWS-1 auction results as a guide, the total of the aggregate
reserves for this auction would amount to about $10.4 billion.700 For several reasons, using
AWS-1 auction results might be an appropriate approach for setting block-specific reserve prices
reflecting a conservative estimate of final market value. For instance, spectrum in the 700 MHz
Band possesses superior propagation characteristics to AWS-1 spectrum. In addition, as of
February 18, 2009, the 700 MHz Band spectrum will be completely unencumbered, while full
access to AWS-1 spectrum requires the relocation of both Government and commercial
incumbent users. Thus, other factors aside, 700 MHz Band licenses with comparable geographic
service areas and bandwidth should have a higher market value on a per-megahertz basis than
AWS-1 licenses. In setting block-specific reserve prices, the Bureau should also give due
consideration to Congress’s view as to the value of the spectrum, as reflected in Congressional
mandates regarding the uses for revenues from this auction.701
305. More specifically, the Wireless Bureau should consider the following factors
when setting the block-specific aggregate reserves. The detailed rules regarding the D Block
license, the D Block licensee’s required construction of a network to be shared by public safety
service users, and the resulting limitations on the flexibility of the D Block licensee, should be
given substantial weight in assessing the D Block’s value. Based solely on geographic area and
spectrum block size, AWS-1 auction results might suggest a D Block reserve of $1.7 billion.
However, in light of the D Block license conditions essential to the public safety purpose of the
public/private partnership, it might be appropriate to expect the D Block licensee to contribute
only about 75 percent to 80 percent of such an amount, or about $1.33 billion. In addition, when
700
Aggregate reserve price calculation for 700 MHz Band auction based on Auction No. 66 (AWS) bids:
700
700 MHz
AWS
Bandwidth
Geographic
Comparable
700 MHz
MHz
Bandwidth
Bandwidth
Ratio
AWS Bids
Area Type
AWS Block
Reserve*
Block
(MHz)
(MHz)
700/AWS
A
12
EA
C
10
1.2
$1,491,238,000
$1,789,485,600
B
12
CMA
A
20
0.6
$2,268,029,200
$1,360,817,520
E
6
EA
C
10
0.6
$1,491,238,000
$894,742,800
C
22
REAG
F
20
1.1
$4,174,486,000
$4,591,934,600
D
10
Nationwide**
D and E
10
1.0
$1,749,031,000
$1,749,031,000
Total
62
$10,386,011,520
* Calculated as the bandwidth ratio times AWS bids.
** Since AWS did not have any nationwide licenses, reserve price calculation is based on 10 MHz REAG licenses.
Auction No. 66 results are available at http://wireless.fcc.gov/auctions/66/.
701
These mandates total $10.1825 billion. See DTV Act, §§ 3005-3012; 47 U.S.C. § 309(j)(8)(E)(iii).
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determining relative valuation of other blocks, the Wireless Bureau should consider the relative
valuation of differing blocks in the recent auction of AWS-1 licenses.
306. Subsequent Auction of Alternative Licenses. We recognize that it is possible that
the auction results may not satisfy one or more of the block-specific reserves. In that event, we
establish a process to enable the assignment of alternative licenses for the A, B, C, and E Blocks
of the 700 MHz Band as soon as possible in order to promote the speedy deployment of services
utilizing 700 MHz Band spectrum. Under our rules, the license for the D Block may also be reoffered in a subsequent auction. Given the highly useful nature of the underlying spectrum, there
is a strong public interest in promptly assigning all 700 MHz Band licenses for recovered analog
spectrum. Congress has expressly provided that all incumbent analog television broadcasters
must be cleared from this spectrum before February 18, 2009.702 It would not be possible to fully
reconsider the conditions and the band plan as well as potential alternatives without significantly
delaying the licensing of the spectrum. Such delays in licensing this spectrum could thwart the
public interest in new licensees being able to offer services as soon as possible after the 700
MHz Band is cleared of incumbent broadcasters. Furthermore, delays in licensing would delay
the recovery of a portion of the value of the public spectrum resource, already anticipated by
Congress. We have an extensive record in response to the 700 MHz Further Notice and have no
reason to believe that further proceedings would result in substantially different conclusions
regarding the band plan and the various license conditions we adopt today.
307. Our statutory authority to provide for reserve prices enables us to withhold
assignment of licenses so that they may be offered again in the future under circumstances that
will more effectively benefit the public.703 Accordingly, we establish a process to enable the
assignment of alternative licenses as soon as possible in the event that the relevant block-specific
aggregate reserve price is not met when those licenses are first offered. Specifically, we will
offer the more flexible, less conditioned licenses described below in the A, B, C, and E Blocks as
soon as possible after the first auction.704 This will address the possibilities that license
conditions adopted today significantly reduce values bidders ascribe to those licenses and/or
have unanticipated negative consequences. Given the unique character of the D Block license
conditions, we leave open the possibilities of reevaluating those conditions or of promptly
offering that license again in a subsequent auction, in the event the D Block-specific reserve is
not met.
308. We provide further below that the auction of alternative licenses shall be subject
to the same applicable reserve prices as the initial auction of licenses. The Wireless Bureau has
delegated authority, however, to determine the appropriate means of reapportioning the reserve
associated with the C Block in light of our determination below to split the block into two should
a re-auction occur. This assures both that any initial and subsequent auctions will be as similar
as possible (other than with respect to particular license terms detailed below) and also that the
702
DTV Act, § 3002(b)(1).
703
See 47 U.S.C. § 309(j)(4)(F); 47 C.F.R. § 1.2104(c); see also Auction of 800 MHz SMR Upper 10 MHz Band;
Minimum Opening Bids or Reserve Prices, Order, 12 FCC Rcd 16354, 16358 ¶ 11 (WTB 1997).
704
We provide here for alternative licenses in the A, B, C, and E Blocks of the 700 MHz Band only in the event that
all licenses in one of those blocks are not assigned because the auction results do not satisfy the applicable blockspecific reserve price for the licenses originally offered.
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final assignment of the licenses will be based only on which licenses are able to serve the
statutory goal of recovering a portion of the value of the public spectrum resource fixed in
advance of the auction. In other words, we are balancing essential goals of assigning licenses on
terms that serve the public interest, both with respect to service provided by licensees and
recovery of value, rather than attempting to maximize revenue. In this vein, we note that, in light
of all the relevant factors discussed above, we anticipate that the reserve price for the C Block
would be approximately $4.6 billion.
309. Performance Requirements for Alternative Licenses. As discussed in detail
elsewhere, in order to better promote access to spectrum and the provision of service, especially
in rural areas, we have replaced the current “substantial service” requirements for the 700 MHz
Band licenses that have not been auctioned with significantly more stringent performance
requirements. We are adopting these rigorous requirements in an effort to ensure that licensees
put this spectrum to use throughout the course of their license terms and their license areas.
310. It is possible, however, that the geographic area benchmarks we adopt for the A,
B, and E Block licenses might result in a reduction in the monetary value of the licenses, thus
reflecting potential flaws in our determinations regarding the public interest value of the imposed
conditions. We conclude that a failure of the auction results for the A, B, and E Block licenses to
satisfy the applicable block-specific aggregate reserve should result in a prompt offering of
alternative licenses for the relevant block(s) that are subject to performance requirements with
the population benchmark regime we have adopted for the C Block licenses.
311. Changes to Alternative C Block Licenses. As discussed elsewhere, we have
concluded based on the extensive record in this proceeding that certain open platform conditions
on the C Block licenses serve the public interest and that the conditions will permit licensee(s) to
make effective and efficient use of the spectrum. Based on the record in this proceeding, we
conclude that in the event that auction results for conditioned Upper 700 MHz C Block licenses
do not satisfy the aggregate reserve price for the C Block, we will offer as soon as possible
licenses for the C Block without the open platform conditions.
312. Similarly, we will modify the C Block band plan. In this regard, we note that
Frontline Wireless contends that the licensing plan supported by Verizon is intended to
discourage new entrants and competitors that would not be interested in, or financially capable
of, bidding on REAG licenses without package bidding.705 It maintains that the use of REAG
licenses would result in limited competition, with few likely bidders other than Verizon and
AT&T for such licenses.706 To provide different opportunities for the different mix of bidders,
consistent with established auction procedures, that may be interested in the unconditioned C
Block licenses, we will reconfigure the bandwidth of the licenses, as set out in the Figure below,
to create two paired blocks of 6 and 5 megahertz each, which we will label the C1 and C2
Blocks. Further, we will license the C1 Block based on EAs and the C2 Block based on REAGs.
We believe that in the event that the conditioned 700 MHz Band licenses are not assigned due to
a failure to meet the reserve price and that the open platform conditions are lifted, reconfiguring
705
July 2, 2007 Letter from Gerard J. Waldron, Covington & Burling LLP, Counsel to Frontline Wireless, LLC,
with attached slide deck “Verizon’s Spectrum Grab: Summary of Economic Arguments,” slides 10-13.
706
Id.
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the band plan in this way will serve the public interest by providing licenses under circumstances
that may have more appeal to certain bidders.
FIGURE 11: SPLIT C BLOCK PLAN
757
C1
C2
CH. 60
746
A
CH. 61
752
Block
C1
C2
D
A
B
763
PS
BB
D
CH. 62
758
775
PS
NB
CH. 63
764
Frequencies
746-752, 776-782
752-757, 782-787
758-763, 788-793
757-758, 787-788
775-776, 805-806
B
CH. 64
770
787
C1
C2
CH. 65
776
Bandwidth
12 MHz
10 MHz
10 MHz
2 MHz
2 MHz
A
CH. 66
782
793
D
805
PS
BB
CH. 67
788
Pairing
Area Type
2 x 6 MHz
2 x 5 MHz
2 x 5 MHz
2 x 1 MHz
2 x 1 MHz
EA
REAG
Nationwide
MEA
MEA
PS
NB
CH. 68
794
B
CH. 69
800
806
Licenses
176
12
1*
52**
52**
*Block is associated with the 700 MHz Public/Private Partnership.
**Guard Bands block has been auctioned, but is being relocated.
313. It has been suggested that a decision to reauction reconfigured C Block licenses
without open platform restrictions in the event that the bids for the C Block licenses fail to meet
the reserve price, is “an allocation decision being driven by revenue considerations,” in violation
of Section 309(j)(7)(A), and not by the public interest value of the requirements.707 The
treatment of these licenses under such a reauction scenario, however, reflects our determination
that the cost of the open platform requirements to wireless service providers – evidenced by the
magnitude of the devalued bids – would reveal a significant problem with the requirements, such
as a greater negative impact on network operations than we are predicting. As such, our
assessment of the net public interest benefit of imposing these requirements (i.e., the benefit of
fostering the development of innovative devices and applications vs. the potential negative
effects on network operations) changes. We believe that these circumstances, (i.e., the failure of
the auction results for conditioned C Block licenses to satisfy the C Block-specific reserve price)
are unlikely to occur. But if they do, they provide sufficient evidence to conclude that we have
weighed the public interest balance incorrectly, and that the cost of the open platform restrictions
was too high – not because the auction would have failed to generate enough Federal revenue,
but because the low level of bidding would indicate inherent problems with operating a wireless
707
See Frontline July 23, 2007 Ex Parte letter at 2. 47 U.S.C. § 309(j)(7)(A) provides that “[i]n making a decision
pursuant to Section 303(c) to assign a band of frequencies to a use for which licenses or permits will be issued
pursuant to this subsection, and in prescribing regulations pursuant to paragraph 4(C) of this subsection, the
Commission may not base a finding of public interest, convenience, and necessity on the expectation of Federal
revenues from the use of a system of competitive bidding under this subsection.”
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system under this type of open platform regime.708 In addition, as indicated above, our decision
to change the geographic scope and spectrum block sizes under the reauction scenario is based
on our determination that it would serve the public interest by providing different opportunities
for the different mix of bidders that may be interested in the unconditioned C Block licenses.709
314. D Block License. With respect to the D Block, we have concluded that the public
interest supports adopting unique service rules that will establish a nationwide 10-megahertz
commercial license in the Upper 700 MHz Band D Block that will be awarded to the winning
bidder once it has entered into a Commission-approved Network Sharing Agreement (NSA) with
the Public Safety Broadband Licensee. As detailed elsewhere, this D Block license will require
the commercial licensee to construct and operate a nationwide, interoperable broadband network
to be used to provide both a commercial service and a broadband network service to public
safety entities, across both the D Block and the 700 MHz public safety broadband spectrum.710
In light of the importance of such a network to the public interest, as well as the difficulty of
assessing an appropriate reserve price prior to an initial auction, we conclude that we should not
alter the conditions we have adopted today for the D Block license based solely on auction
results. As discussed above, we believe that a D Block-specific aggregate reserve of
approximately $1.33 billion is appropriate given our goal of enabling the recovery of a portion of
the value of the spectrum while also permitting licensing to proceed as quickly as possible. If,
however, the D Block-specific aggregate reserve is not met, we conclude that we should leave
open the possibility of re-offering the license on the same terms in a subsequent auction, as well
as the possibility of re-evaluating all or some of the applicable license conditions.
315. Auction Procedures. In providing for a subsequent auction of licenses in the
event that the relevant block-specific aggregate reserves are not satisfied, we find it in the public
interest to utilize the same auction design, including the block-specific aggregate reserve price,
anonymous bidding, and package bidding, insofar as possible. Accordingly, we direct the
Wireless Bureau to adopt for the auction of 700 MHz Band licenses, consistent with its delegated
authority and pursuant to its routine pre-auction process, procedures that will enable a prompt
subsequent auction of alternative licenses for any block, as described above, in the event that the
relevant block-specific aggregate reserve price is not met. This order’s provisions with respect
to the procedures for the initial auction, including with respect to anonymous and package
bidding, will continue to apply in any subsequent auction. Furthermore, the same applicable
reserve prices for each block of licenses shall apply in both the initial and subsequent auctions,
recognizing that the Wireless Bureau will be required to determine how to allocate the blockspecific reserve price for the C Block upon reauction under the split block plan described above.
We detail below a few additional auction procedures to further the goal of promptly and
708
In any event, we note that the limited Section 309(j)(7) prohibition against basing a public interest finding on the
expectation of Federal auction revenues would not apply to our decision regarding the possible removal of the open
platform requirement.
709
As discussed below, because we determine that the auction procedures to be established should limit qualified
bidders for any auction of alternative licenses to those that qualify to bid in the auction offering licenses in all blocks
of the 700 MHz Band, we note that bidders interested in the alternative C Block licenses will be required to qualify
to bid in the upcoming auction that will offer licenses in all blocks.
710
700 MHz Further Notice, 22 FCC Rcd at 8161 ¶ 272.
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effectively assigning these licenses. We direct the Wireless Bureau, consistent with its delegated
authority to adopt procedures that will comply with this order and preserve the integrity of any
necessary reauction.711
316. Given the related nature of the initial auction and any subsequent auction of
alternative licenses and to avoid unnecessary delay, we direct the Wireless Bureau to establish
procedures that limit qualified bidders in a subsequent auction of alternative licenses to those
bidders that qualify to bid in the upcoming auction offering 700 MHz Band licenses in all of
these blocks. Likewise, given the related nature of the initial auction of 700 MHz Band licenses
and any subsequent auction of alternative licenses, we find that the applicable “down payment
deadline” for purposes of our anti-collusion rule shall be the “down payment deadline”
established for the subsequent auction.712 In addition, because licenses for the same spectrum
will be offered in both auctions, and the auctions will take place relatively close in time, we
conclude that the purpose of our anti-collusion rule requires that the provisions of that rule
continue to apply until the down payment deadline for the subsequent auction. To assure that
bidders will have sufficient bidding eligibility to pursue various bidding strategies, we direct the
Wireless Bureau to propose and adopt procedures that give applicants an opportunity to obtain
bidding eligibility specifically for the alternative licenses, in addition to the initial licenses.
317. The Wireless Bureau also should consider any additional procedures within its
delegated authority that may enhance the effectiveness of our auction of 700 MHz Band licenses
in either the initial or subsequent auction. In this regard, we direct the Wireless Bureau to
consider what procedures may be appropriate to deter bidders from actions that might thwart the
assignment of licenses in either auction. For example, the Wireless Bureau should consider
whether otherwise eligible bidders should be denied bidding eligibility in a subsequent auction of
unconditioned licenses based on their bidding behavior, e.g., withdrawals, defaults, and/or other
actions, in connection with the initial auction.
f.
Statutory Deposit Deadline
318. Background. Our conduct of this auction is, of course, subject to a statutory
deadline for depositing proceeds from the auction of 700 MHz Band licenses in the Digital
Television Transition and Public Safety Fund. The DTV Act amended the Communications Act
to provide that the Commission “shall deposit the proceeds of such auction in accordance with
paragraph (8)(E)(ii) not later than June 30, 2008.”713 In the cross-referenced paragraph, the DTV
Act requires that “the proceeds (including deposits and upfront payments from successful
711
For example, the Wireless Bureau may be required to adopt procedures to maintain the anonymity of bidders
until the completion of the second auction to maintain the integrity of the second auction, prevent collusion, or
prevent the disclosure of bidding strategies that would influence the behavior of bidders in the second auction.
712
See 47 C.F.R. § 1.2105(c)(1).
713
47 U.S.C. § 309(j)(15)(C)(v). The statute’s reference to “the proceeds of such auction” refers to the statute’s
provision for bidding on licenses for the recovered analog spectrum that must commence not later than January 28,
2008. Licenses may be offered by January 28, 2008, and remain unassigned for a variety of reasons. See 47 C.F.R.
§ 1.2104 (c) (reserve prices), (d) (minimum opening bids), (g)(i) (withdrawals prior to close of auction), and (g)(ii)
(default or disqualification after close of auction). In such circumstances, the deadline for commencement of
bidding on licenses for the relevant spectrum will not preclude the Commission from offering the same or other
licenses for the spectrum in a later auction.
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bidders) from the use of a competitive bidding system under this subsection with respect to
recovered analog spectrum shall be deposited in the Digital Television Transition and Public
Safety Fund.”714
319. Discussion. To provide greater certainty for potential bidders, we here set forth
our plan for fulfilling our responsibility to comply with this deadline in a manner fully consistent
with the rules governing the 700 MHz Band licenses and the Commission’s competitive bidding
process. In particular, to comply with the statutory deadline, we will deposit payments made by
successful bidders towards their respective winning bids for their licenses - including upfront
payments, deposits, and final payments held on deposit pending the completion of licensing - as
of the deposit deadline, June 30, 2008, even in instances where the licensing process for those
licenses has not yet been completed.
320. We conclude that this will comply with the statute’s deadline for depositing “the
proceeds” of the auction. In the context of the DTV Act and competitive bidding for licenses for
the “recovered analog spectrum,” the term “the proceeds” consists of payments by successful
bidders toward their winning bids for licenses made prior to the deposit deadline. For several
reasons, we find that the statute’s intended meaning of proceeds is not limited to the final net
revenues that the Commission will realize at the completion of the auction and licensing of all
relevant licenses. As an initial matter, there can be no guarantee that applicants will place
winning bids on any and all the licenses the Commission offers.715 In addition, with respect to
licenses that are the subject of winning bids, we note the period of time between the required
commencement of bidding and the deposit deadline in the statute is well short of the time it can
take to complete licensing under long-established Commission procedures. The
Communications Act and/or the Commission’s rules provide parties with prescribed periods of
time following an auction to file license applications, petitions to deny, and responses.716
Similarly, under Commission rules, parties seeking post-auction tribal land bidding credits are
afforded a defined period of time – namely, up to 180 days after the filing of a winning bidder’s
long form application after the close of the auction - in which to negotiate with tribes on the land
to be served.717 Furthermore, the statute’s express requirement that the amounts deposited by the
deadline include deposits and upfront payments718 from successful bidders clearly indicates that
the statute contemplates deposits being made before the completion of licensing, at which time
the successful bidders’ deposits and upfront payments are merged into final payments and net
auction revenues.719
321. We therefore find that the statute requires the deposit of payments made by
successful bidders towards their respective winning bids for licenses for recovered analog
spectrum as of the June 30, 2008, deposit deadline, even if that date occurs before conclusion of
714
47 U.S.C. § 309(j)(8)(E)(ii).
715
See, e.g., Auction of Advanced Wireless Services Licenses Closes, DA 06-1882, Public Notice, 21 FCC Rcd
10521 (2006) (35 licenses remained FCC-held following auction).
716
See 47 C.F.R. §§ 1.2107, 1.2108.
717
See 47 C.F.R. § 1.2110(g).
718
47 U.S.C. § 309(j)(8)(E)(ii).
719
See 47 C.F.R. § 1.2106(d) (upfront payments to be applied to down payments).
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the licensing process. Because our rules provide for the collection of all the required payments
from winning bidders before completing the licensing process, 720 the June 30, 2008, statutory
deadline for depositing auction proceeds does not conflict with or otherwise affect any of our
regulatory provisions that might extend final licensing beyond June 30, 2008.
B.
700 MHz Public Safety Spectrum
322. In this section, we adopt a regulatory framework for the 700 MHz Public Safety
Band to facilitate the establishment of a nationwide, interoperable broadband communications
network for the benefit of state and local public safety users. In accordance with our decision
relating to the Guard Band spectrum, and the corresponding shift by 1 megahertz downward of
the 700 MHz Public Safety Band, we designate the lower half of the 700 MHz Public Safety
Band (763-768/793-798 MHz) for broadband communications. We also consolidate existing
narrowband allocations to the upper half of the 700 MHz Public Safety block (769-775/799-805
MHz). To effectuate the consolidation of the narrowband channels, we require the Upper 700
MHz D Block licensee to pay the costs of relocating narrowband radios, require every 700 MHz
public safety licensee to certify to the Commission specific information regarding their operating
narrowband handsets and base stations or forfeit reimbursement for associated relocation costs,
and establish a deadline for completion of the narrowband transition of no later than the DTV
transition date. In order to minimize interference between broadband and narrowband
operations, we adopt a 1-megahertz guard band (768-769/798-799 MHz) between the public
safety broadband and narrowband segments. Concerning the broadband segment, we address
certain technical criteria related to power levels and the establishment of a broadband standard
with a nationwide level of interoperability. Finally, we establish a single nationwide license
(hereafter, the “Public Safety Broadband License”) for the 700 MHz public safety broadband
spectrum. We will assign this to a single licensee, the Public Safety Broadband Licensee, and
we specify the criteria, selection process, and responsibilities for this licensee. In establishing
this broadband license, and in assigning the license to the Public Safety Broadband Licensee, we
also are providing the necessary ingredients for enabling the 700 MHz Public/Private Partnership
with the commercial Upper 700 MHz Band D Block licensee, as discussed in more detail
elsewhere in this Second Report and Order.
1.
Band Plan
323. In the 700 MHz Further Notice, we tentatively concluded to (1) redesignate a
portion of the public safety spectrum in the 700 MHz Band from wideband use to broadband use
consistent with a nationwide interoperability standard; (2) prohibit wideband operations on a
going forward basis within the newly designated broadband spectrum; (3) consolidate the
existing narrowband allocations to the upper half of the 700 MHz Public Safety Band (770776/800-806 MHz), and locate broadband communications in the lower half of this band (764769/794-799 MHz); and (4) establish a 1-megahertz internal guard band between the narrowband
and broadband allocations (669-770/799-800 MHz) to prevent interference.721 Further, we
sought comment on whether to allow the use of this newly created internal guard band along the
Canadian border, based on our tentative conclusion not to adopt the BOP which, like the band
720
See 47 C.F.R. § 1.2109 (enabling the Commission to set payment deadline prior to final license determinations).
721
700 MHz Further Notice, 22 FCC Rcd at 8154 ¶ 250.
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plan that we adopt today, included a downward shift of 1 megahertz of the 700 MHz Public
Safety Band.722 These tentative conclusions and proposals were intended to facilitate the
establishment of a nationwide, interoperable broadband communications network for the benefit
of public safety. We discuss our decisions on these issues below.
a.
Broadband Segment
324. Background. The majority of commenters support our tentative conclusion in the
700 MHz Further Notice to modify the current band plan for the 700 MHz Public Safety Band to
provide for broadband operations in the lower portion of the band and consolidated narrowband
operations at the top of the band.723 Some commenters supporting band modification in this
manner qualify their support. For example, APCO states that it supports the proposed band
reconfiguration provided the plan addresses (i) a mechanism to reimburse those public safety
licensees that must modify their 700 MHz Band radios that have already been deployed on 700
MHz channels and (ii) the Canadian Border Issue.724 A few commenters oppose modifying the
band. Region 16 (Kansas) does not support the Commission’s proposal because its imposition of
a nationwide network favors “federal mandates” over local and regional decisions.725 Similarly,
Region 33 (Ohio) argues that the Commission’s proposal would eliminate the option to deploy
cost effective wideband systems or dedicated local agency broadband systems.726
325. Discussion. We conclude that revision of the band plan for the 700 MHz Public
Safety Band to accommodate broadband communications is in the public interest. The
communications needs of public safety have evolved in recent years, and the record in this
proceeding affirms our expectation that wireless broadband services will play an essential role in
the ability of public safety entities, especially first responders, to fulfill their mission to protect
the health, welfare and property of the public.727 The current band plan for the 700 MHz Public
722
Id. at 8157 ¶ 259, 8157-57 ¶¶ 260-61. The 700 MHz Further Notice explained that while the Canadian
government agreed to clear broadcasters from channels 63 and 68, there was no such agreement in place for
channels 64 and 69. As a result, by consolidating the narrowband channels onto channels 64 and 69, operations in
these channels would be subject to interference from Canadian broadcast operations. (This matter of potential
interference that may be caused to public safety narrowband operations at the border will be referred hereafter as the
“Canadian Border Issue.”) The Canadian government recently announced that it has now established a date certain,
August 30, 2011, by which it will complete the DTV transition for all broadcasters, including channels 64 and 69.
Broadcasting Public Notice CRTC 2007-53 (May 17, 2007), available at
http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm. Nevertheless, the Canadian Border Issue will
persist for more than two years following the U.S. DTV transition date.
723
See, e.g., Alcatel-Lucent 700 MHz Further Notice Comments at ii and 3; AT&T 700 MHz Further Notice
Comments at 14; Frontline 700 MHz Further Notice Comments at 51; Motorola 700 MHz Further Notice Comments
at 7; TIA 700 MHz Further Notice Comments at 2; WCA 700 MHz Further Notice Comments at 4.
724
APCO 700 MHz Further Notice Comments at 7; see also NATOA 700 MHz Further Notice Comments at 5.
725
Region 16 (Kansas) 700 MHz Further Notice Comments at 2.
726
Region 33 (Ohio) 700 MHz Further Notice Comments at 2; see also Motorola 700 MHz Further Notice Reply
Comments at 3-11.
727
For example, broadband technology would enable public safety agencies to transmit (1) real-time, full motion
video from any location to any other location, (2) live video from an emergency scene to a command center, and (3)
building diagrams, blueprints, and mug shots to personnel in the field. See, e.g., Bechtel June 14, 2007 Ex Parte in
PS Docket No. 06-229.
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Safety Band does not provide for a broadband communications capability. Accordingly, we
adopt the following band plan for the 700 MHz Public Safety Band:
FIGURE 12: REVISED 700 MHZ BAND PLAN FOR PUBLIC SAFETY SERVICES
763
769
775
793
Public Safety Allocation
Commercial
G
Allocation Broadband
Narrowband
B
CH. 62
758
CH. 63
764
Commercial Allocation
CH. 64
770
799
805
Public Safety Allocation
CH. 65
776
CH. 66
782
Broadband
CH. 67
788
G
Narrowband
B
CH. 68
794
CH. 69
800
806
326. We are designating the lower 5-megahertz paired (10 megahertz total) segment of
the 700 MHz Public Safety Band for broadband communications. This 5-megahertz paired
designation will allow public safety to implement advanced wireless communications systems.
It also will place public safety broadband operations adjacent to spectrum available for
commercial broadband operations. We find this facilitates the deployment of a shared broadband
network architecture by commercial and public safety entities and is consistent with the
public/private partnership framework adopted herein. As discussed elsewhere in detail, such
partnership would allow public safety to leverage advanced technologies and infrastructure that
can lead to reduced build-out, equipment and operating costs, as well as speedier deployment of
advanced public safety communications systems. While some commenters express concerns
about the prospect of losing some level of local control should we adopt a nationwide broadband
allocation, we believe such concerns are misplaced. As shown elsewhere in this Second Report
and Order, local agencies, working through the Public Safety Broadband Licensee, will have
substantial opportunity to provide input not only on the design of this network, but also on the
particular broadband services they require. In addition, in Section III.C of this Second Report
and Order, we provide a means for local agencies to request a waiver to conduct wideband
operations, subject to additional conditions and restrictions.
b.
Narrowband Segment
(i)
Consolidation of Narrowband Channels
327. Background. In the 700 MHz Further Notice, we tentatively concluded to
consolidate the existing narrowband allocations to the upper half of the 700 MHz Public Safety
Band. This tentative conclusion to consolidate these narrowband channels received broad
support in the record. For example, Alcatel-Lucent states that narrowband consolidation is an
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Federal Communications Commission
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essential component to the deployment of broadband in the commercial and public safety
portions of the 700 MHz Band.728
328. In an ex parte letter dated June 25, 2007, NPSTC reiterates its support for
consolidating the narrowband channels, and also proposes a plan by which the narrowband
consolidation would take place.729 This plan is premised on the assumption that Access
Spectrum/Pegasus would be responsible for paying the costs of relocation, and proposes that
retuning be completed by the DTV transition date. The plan also would have completed, by July
31, 2008, the following: reprogramming of the Computer Assisted Pre-Coordination Resource
and Database (CAPRAD), updating statewide and regional frequency plans and public safety
licenses, and revising code-plug programming software necessary to retune the radios and
systems. NPSTC also envisions that each public safety agency would submit a “Statement of
Work” to Access Spectrum/Pegasus by December 31, 2007, listing the number of radios and
transmit sites that will be operational by July 31, 2008, and which would be eligible for
relocation funding. In an ex parte letter dated June 29, 2007, Motorola expressed its support for
NPSTC’s proposal.730
329. Discussion. We adopt our tentative conclusion to consolidate the narrowband
segments in order to optimize the band plan for this spectrum. We find that consolidating the
narrowband segments will promote the benefits of the 700 MHz Public/Private Partnership by
creating a contiguous public safety broadband allocation adjacent to commercial broadband
spectrum, and distancing the narrowband segment from the broadband segment to minimize
interference potential. Further, consolidating the narrowband segments in this manner will
maximize spectrum efficiency, thereby reducing the need for internal guard bands between
narrowband and broadband operations from two separate guard bands to only one internal guard
band.731 Accordingly, we consolidate the public safety narrowband operations in the upper
paired 6-megahertz blocks (twelve megahertz total) of the 700 MHz Public Safety Band.732
(ii)
Timing of Narrowband Consolidation
330. Background. In the 700 MHz Further Notice, we posed a number of questions in
order to address how best to migrate existing narrowband operations on channels 63 and 68 to
728
Alcatel-Lucent 700 MHz Further Notice Comments at 18-19; see also ALU 700 MHz Further Notice Comments
at 3-12; AT&T 700 MHz Further Notice Comments at 14; Ericsson 700 MHz Further Notice Comments at 10-11;
M/A COM 700 MHz Further Notice Comments at 4; Motorola 700 MHz Further Notice Comments at 7; NENA 700
MHz Further Notice Comments at 2; Northrop Grumman 700 MHz Further Notice Comments at 2-3; Qualcomm
700 MHz Further Notice Comments at 38; Upper 700 MHz Licensees 700 MHz Further Notice Comments at 3;
Access Spectrum June 14 Ex Parte in WT Docket Nos. 96-86, 06-150 and 06-169, and PS Docket No. 06-229.
729
Letter from Vincent R. Stile, Chair, NPSTC, to Kevin Martin, Chairman, FCC, WT Docket Nos. 96-86, 06-150,
06-169, and PS Docket No. 06-229, filed June 25, 2007 (NPSTC June 2007 Ex Parte).
730
Letter from Steve B. Sharkey, Director, Spectrum and Standards Strategy, Motorola, Inc., to Marlene H. Dortch,
Secretary, FCC, WT Docket Nos. 96-86, 06-150, 06-169, and PS Docket No. 06-229, filed June 29, 2007 (Motorola
June 2007 Ex Parte).
731
See, e.g., AT&T 700 MHz Further Notice Comments at 14; Alcatel-Lucent 700 MHz Further Notice Comments
at 18; M/A-COM 700 MHz Further Notice Comments at 4; Motorola 700 MHz Further Notice Comments at 7; TIA
700 MHz Further Notice Comments at 3-4.
732
As discussed elsewhere, we also are shifting downward, by 1 megahertz, the entire 700 MHz public safety band.
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channels 64 and 69, with minimum disruption to incumbent operators.733 As an initial matter, we
sought comment on the appropriate timing of relocating narrowband operations, in view of the
February 17, 2009 DTV transition deadline.734
331. Motorola states that the narrowband blocks were split originally so that some
narrowband channels would overlap both TV channels 63/68 and 64/69, providing greater
likelihood that at least a portion of the channels would be usable in additional areas of the
country prior to TV clearing in early 2009. Motorola argues that maintaining the bifurcated
narrowband blocks beyond that date has no benefit for public safety.735 Alcatel-Lucent believes
that there is sufficient time between the end of the auction and when the spectrum becomes
available in February 2009 to enable regional and local public safety agencies to deploy
broadband technologies right away.736
332. Discussion. We conclude that in order to maximize the benefits of the 700 MHz
Public/Private Partnership to deploy a nationwide, interoperable broadband communications
network, narrowband operations presently in channels 63 and 68 (and the upper 1 megahertz of
channels 64 and 69) must be cleared no later than the DTV transition date.737 It is important that
the commercial Upper 700 MHz Band D Block licensee and the Public Safety Broadband
Licensee not be constrained by the presence of narrowband operations in the public safety
broadband allocation with regard to implementing a build-out plan for the nationwide broadband
network. Furthermore, we find that focusing the resources necessary to implement the relocation
of narrowband operations during the time leading up to when the TV channels are fully cleared
will enable the public safety community, as of the February 17, 2009 deadline, to devote its full
attention to the important matter of deploying broadband communications capabilities with a
nationwide level of interoperability.
(iii)
Funding Issues
333. Background. As we recognized in the 700 MHz Further Notice, fundamental to
the accomplishment of relocating narrowband operations to the consolidated narrowband
channels is a determination of the costs of the relocation and how (or by whom) the costs will be
paid.738 While we believed that the number of incumbents that would be impacted would be
relatively small, we asked for estimates of the true costs associated with relocation that were as
accurate as possible, as well as up-to-date information regarding how many narrowband radios
733
700 MHz Further Notice, 22 FCC Rcd at 8158-59 ¶¶ 262, 263. This did not take into account the fact that, as a
result of the band plan we adopt today, the upper 1 megahertz of narrowband operations in channels 64 and 69 also
would need to be relocated as a result of the 1 megahertz downward shift of the 700 MHz public safety band.
734
Id. at 8159 ¶ 263.
735
Motorola 700 MHz Further Notice Comments at 7 n.3. Motorola states that the Commission should define a
timeline for the consolidation of the narrowband blocks, estimating that it will take twelve months from establishing
the new band plan to develop the revised code plug programming software and conduct the necessary testing to
ensure that the radios can be reprogrammed. Id. at 12.
736
Alcatel-Lucent 700 MHz Further Notice Reply Comments at 8.
737
In order to accomplish relocations in areas encumbered by existing TV operations that would continue until the
DTV deadline, some relocations could be planned in advance, but not implemented, until the DTV transition date.
738
700 MHz Further Notice, 22 FCC Rcd at 8159 ¶ 264.
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are currently deployed and how many are actively being used.739 Unfortunately, we received no
information on the number of narrowband radios deployed and in use.740 Further, only one
commenter, Motorola, offered an estimate of the costs associated with reprogramming the
impacted narrowband systems. Specifically, Motorola estimates that the costs associated with
reprogramming installed Motorola 700 MHz equipment, including mobiles, portables and base
stations that are in operation presently or targeted to be in operation by the time band
reconfiguration would commence, approximately one year after the Commission finalizes a new
band plan for the 700 MHz Public Safety Band, to be approximately $10 million.741 Motorola
subsequently provided additional information, in an ex parte letter, regarding the estimated costs
for completing the reconfiguration. Specifically, Motorola states that it used as a basis for its
estimate an average cost of $100 to reprogram each mobile and portable radio, and $3,000 to
make necessary changes at each base transmitter site.742
334. We also sought comment on how best to pay for the costs of consolidating the
narrowband channels. We asked whether, should we reject our tentative conclusion to impose
these costs on the commercial licensee that would be part of a public/private partnership, public
safety should pay for its own relocation costs, whether it might be possible to use a portion of the
$1 billion Public Safety Interoperable Communications Grant Program or funding from existing
grant programs, or whether we should require the licensee of the adjacent commercial broadband
segment743 or Guard Band B Block licensees to pay such costs. Alternatively, we asked whether
the nationwide public safety broadband licensee should be assigned responsibility for funding the
reconfiguration.744
335. A number of public safety groups oppose having public safety pay its own
relocation costs or attempting to use the $1 billion Public Safety Interoperable Communications
Grant Program.745 On the other hand, there was extensive support in the record for imposing the
739
Id.
740
As we explained, our licensing database shows that there are 38 narrowband licenses on channels 63 and 68 that
would be subject to relocation. But, in addition, all 50 states, Puerto Rico, the U.S. Virgin Islands and the District of
Columbia were granted State Licenses, which authorize use of certain narrowband channels on TV channels 63, 64,
68 and 69. State licensees are not required to file individual applications to operate on narrowband channels. Thus,
we have no way of estimating how many narrowband systems, and therefore numbers of radios in use, stem from
operations being conducted pursuant to the State Licenses.
741
See Motorola 700 MHz Further Notice Comments at 11.
742
Motorola June 2007 Ex Parte at 2-3.
743
In the 700 MHz Further Notice, we referred to “the nationwide licensee of the commercial Upper 700 MHz
spectrum block proposed by Frontline.” 700 MHz Further Notice, 22 FCC Rcd at 8159 ¶ 264. For present
purposes, this reference would translate to the D Block licensee.
744
700 MHz Further Notice, 22 FCC Rcd at 8160 ¶ 265. As noted elsewhere, in this Second Report and Order, we
have designated this entity the Public Safety Broadband Licensee.
745
See, e.g., APCO 700 MHz Further Notice Comments at 9; NENA 700 MHz Further Notice Comments at 3;
NPSTC 700 MHz Further Notice Comments at 26.
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payment obligation upon either the licensee of the adjacent commercial broadband segment or
the Guard Band B Block licensees.746
336. Discussion. As we state elsewhere, we require the Upper 700 MHz Band D Block
licensee to pay the costs associated with relocating public safety narrowband operations to the
consolidated channels, in recognition of the significant benefits that will accrue to the D Block
licensee.747 We also assign responsibility to the Public Safety Broadband Licensee to administer
the relocation process consistent with the requirements and deadlines set forth herein. To
facilitate such relocation, we seek to identify the actual numbers of radios and base stations that
the D Block licensee would be responsible for paying the costs of relocating. To that end, we
require every 700 MHz Band public safety licensee, whether holding individual narrowband
authorizations or operating pursuant to a State License, to provide the following information: (1)
the total number of narrowband mobile and portable handsets in operation in channels 63 and 68,
and the upper 1 megahertz of channels 64 and 69, (2) the total number of narrowband base
stations serving these handsets in operation, (3) contact information for each identified set of
handsets and base stations, as appropriate, (4) the areas of operation of the mobile and portable
units (such as defined by the jurisdictional boundaries of the relevant public safety departments),
and (5) the location, in latitude and longitude, of the base stations, all as of 30 days after the
adoption date of this Second Report and Order. We require that all of this information be
accurate as of 30 days after the adoption date to account for pre-programmed narrowband radios
that public safety agencies may have already taken delivery as of the adoption date of this order
and intend to immediately place into operation.
337. This information must be filed with the Commission on the effective date of this
Second Report and Order and must include a certification, signed by an authorized party, stating
that the information provided therein is true, complete, correct, and made in good faith. The
Public Safety and Homeland Security Bureau will issue a public notice in advance of the
effective date announcing the deadline for this certification requirement. Because obtaining this
data is so integral to the success of the relocation process, we strongly caution that public safety
entities failing to timely and properly file these certifications will forfeit all rights to be
reimbursed for associated relocation costs. We will require the funding of the costs of relocation
of narrowband operation only for handsets and base stations that are actually in operation as part
of licensed narrowband operations in channels 63 and 68, and the upper 1 megahertz of channels
64 and 69, as of 30 days following the adoption date of this Second Report and Order.
338. In order to be clear regarding the costs that would be entitled to reimbursement,
the obligation of the D Block licensee to fund the costs of relocation will be limited to the
minimum costs directly associated with modifications necessary to implement the relocation of
base stations, mobiles and portables, and not for any unrelated improvements. We do not impose
a funding obligation to cover costs associated with any modifications that may be necessary to
the CAPRAD system and other programs used by Regional Planning Committees (RPCs) to
assign channels, or to any costs associated with amendments to regional plans or narrowband
licenses.
746
See Missouri Highway Patrol 700 MHz Further Notice Reply Comments at 3; Motorola 700 MHz Further Notice
Comments at 8; see also Northrop Grumman 700 MHz Further Notice Reply Comments at 5-6.
747
See supra ¶¶ 120-121.
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339. As an additional measure to clearly define and contain the costs that would be
entitled to reimbursement, we prohibit authorization, whether pursuant to individual license or
State License, of any new narrowband operations in channels 63 and 68, or in the upper 1
megahertz of channels 64 and 69, as of 30 days following the adoption date of this Second
Report and Order. We caution that any equipment deployed in these frequencies subsequent to
30 days following the date of adoption of this Second Report and Order will be ineligible for
relocation funding. We take these steps in prohibiting new narrowband operations outside of the
consolidated narrowband blocks to ensure that the relocation proceeds in an orderly manner and
without complications stemming from additional operations being deployed in spectrum being
reallocated. To be clear, however, public safety entities may continue to place into operation
narrowband equipment in the consolidated narrowband blocks 769-775 and 799-805 MHz.
340. As stated herein, the winning bidder of the D Block license is required to
commence negotiation of the NSA on the date it files its long form application or the date on
which the Commission grants the public safety broadband license to the Public Safety
Broadband Licensee, whichever is later (the “NSA Negotiation Commencement Date”). Further,
elsewhere we require, as a pre-condition of grant of the D Block license, that the winning bidder
for this license and the Public Safety Broadband Licensee complete negotiations within six
months, and file a copy of the NSA that has been approved by the Commission and executed by
the parties. To implement the narrowband relocation process, we require the winning bidder for
the D Block license and the Public Safety Broadband Licensee jointly to submit for Commission
approval a relocation plan within 30 days following the NSA Negotiation Commencement Date.
We delegate authority to the Chief, Public Safety and Homeland Security Bureau, to review and
approve this plan. This plan must address the process and schedule for accomplishing the
narrowband relocation, including identification of equipment vendors or other consultants that
would perform the necessary technical changes to handsets and base stations, and a detailed
schedule for completion of the relocation process for every radio and base station identified in
the certifications we require above. Furthermore, this plan must specify the total costs to be
incurred for the complete relocation process.
341. As an additional means to ensure the integrity of the relocation process, we also
cap the total amount that the D Block licensee must pay to cover relocation costs. Motorola’s
estimate is the only one in the record, and is not disputed. Motorola’s $10 million estimate is
based upon the anticipated numbers of portables, mobiles, and transmit sites in operation by July
2008. As we state above, however, we will limit the total relocation amount to those radios in
operation as of 30 days after the adoption date of this Second Report and Order. Using the
numbers of portables, mobiles, and transmit sites reported by Motorola as in operation as of the
date of its June 2007 ex parte filing, the total cost would equal $5.77 million. While the
relocation costs when limited to radios in operation as of 30 days after the adoption date of this
order could be closer to $6 million, we conclude it is reasonable to set a cap of $10 million. We
reach this conclusion because even though Motorola’s estimate is the only one before us, it is a
generous estimate in that, as the major provider of public safety 700 MHz equipment, Motorola
asserts that this amount would be sufficient to cover the relocation cost of all narrowband
operations through July 2008. Since we only authorize relocation reimbursement for operations
as of 30 days after the adoption date of this Second Report and Order, we find that it is
reasonable to expect Motorola’s estimate to be more than sufficient to cover these costs. Further,
to the extent that a $10 million cap exceeds the estimate of $6 million, we find that the additional
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amount is not unreasonable in light of the uncertainty reflected by Motorola’s admission that its
estimate is “necessarily an estimate based on the best information available” and that
“information available about the extent of deployed equipment and the costs of retuning is
imperfect and subject to change.”748 Moreover, we find that in determining a cap, we must
consider the costs associated with retuning radios manufactured by other vendors, and provide a
layer of protection to the public safety community to ensure that eligible relocation costs are
fully funded.
342. We emphasize that by establishing this $10 million cap, we do not expect the
actual costs to reach this amount, especially because we limit reimbursement to equipment
operating as of 30 days after the adoption date of this Second Report and Order. Further, we do
not preclude the strong possibility that the actual costs will be lower, perhaps substantially, when
based on the specific amounts for identified costs, on a per handset and per base station basis, as
may be identified by the winning bidder of the D Block license in consultation with the Public
Safety Broadband Licensee and equipment vendors. If the winning bidder of the D Block license
and the Public Safety Broadband Licensee reach agreement on an amount less than $10 million,
they shall report this amount in the relocation plan they submit, with a certification attested to by
the winning bidder of the D Block license, the Public Safety Broadband Licensee, and the
relevant equipment vendors, verifying that all parties will be bound by the costs so identified.
We recognize that the Public Safety Broadband Licensee may incur administrative costs in
carrying out its responsibilities to administer the relocation process. We find it would be
premature, however, in advance of having appointed a Public Safety Broadband Licensee, to
consider requiring the D Block licensee to fund such administrative costs. Further, we have no
basis in the record to consider including administrative costs in the funding obligation of the D
Block licensee. While we do not foreclose the possibility that the Public Safety Broadband
Licensee, once appointed, may be in a position to justify a specific funding request, we
emphasize that the $10 million cap we establish will remain in place and is not subject to upward
adjustment for any purpose.
343. Once the total costs are identified, whether at $10 million or some lesser amount,
such amount will be capped upon approval of the relocation plan by the Chief of the Public
Safety and Homeland Security Bureau. By “capped” we mean that all affected parties will be
bound by that amount to accomplish the complete relocation of all narrowband operations. To
be clear, we will not entertain any requests to exceed the capped costs. Furthermore, as an
additional precondition to grant of the D Block license, we will require, no later than the date on
which the executed NSA is submitted to the Commission, that the D Block auction winner
deposit the capped amount 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 costs. Thus, the winning bidder of the D Block license and the Public
Safety Broadband Licensee must take great care in deciding upon the costs necessary for
accomplishing the narrowband relocation. The trust account established by the Public Safety
Broadband Licensee must be for the benefit of public safety licensees being relocated, and have
the Public Safety Broadband Licensee acting as trustee of such account. The Public Safety
Broadband Licensee may not draw on this account until the D Block license is granted to the D
748
Motorola July 2007 Ex Parte at 3.
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Block auction winner, and then may use the funds solely for relocating eligible narrowband
operations consistent with the requirements and limitations set forth herein. The Public Safety
Broadband Licensee will 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.
344. The process we establish has the Public Safety Broadband Licensee disbursing the
relocation funds, as opposed to the D Block licensee dealing directly with and paying each
relocating narrowband licensee. We find it appropriate to have the Public Safety Broadband
Licensee administer payment of relocation funds for a number of reasons. First, the D Block
licensee and the Public Safety Broadband Licensee already would have reached agreement on a
relocation plan, and disbursement of the funds will proceed according to this plan. In effect, as
the winning bidder, the D Block licensee will have had substantial involvement in designing the
relocation plan, including the disbursement of funds. Second, we find that the Public Safety
Broadband Licensee is in the best position, based on the criteria we specify herein for its
selection, to act in the best interests of the public safety community impacted by the narrowband
consolidation. Specifically, as we require elsewhere, no commercial interest may be held in the
Public Safety Broadband Licensee, this licensee must be a non-profit organization, and the
licensee must be broadly representative of the public safety user community. Accordingly, in
carrying out its responsibilities, the Public Safety Broadband Licensee would not be unduly
influenced by financial or commercial pressures, yet would have extensive experience with
public safety radio operations. Third, we require as part of the negotiation of the relocation plan
that the winning bidder of the D Block license and the Public Safety Broadband Licensee reach
agreement on the total costs of the entire relocation. As all parties will be bound by this amount,
which we will cap, the Public Safety Broadband Licensee must carefully disburse the funds
according to the relocation plan to ensure that the entire process is fully funded. Finally, creating
a trust relationship further ensures that the Public Safety Broadband Licensee will act in
accordance with the relocation plan and the best interests of the relocating incumbents, due to the
fiduciary responsibility it would hold as trustee.
c.
Regional Planning Committee Plans
345. Background. In the 700 MHz Further Notice, we observed that RPCs had raised
concerns that consolidating the narrowband channels would disrupt planning, but we noted that
the costs and inconveniences of consolidating the narrowband channels are minor compared to
the relative potential for accommodating future technologies.749 Several commenters described
projects that have been approved or are underway. Region 43 (Washington) states that it has
engaged in a years long process and that within its Central Puget Sound region, there are
approved projects in the process of implementation.750 Similarly, Region 16 (Kansas) states that
it has invested considerable time in developing its state plan and the Commission’s proposed
changes would require revision and resubmission of the plan to the Commission, with resultant
749
700 MHz Further Notice, 22 FCC Rcd at 8158 ¶ 262.
750
Region 43 (Washington) 700 MHz Further Notice Comments at 3; Region 43 (Washington) 700 MHz Further
Notice Reply Comments at 2.
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delay in build-out of systems.751 Region 33 (Ohio) states that Ohio has created and funded a
band plan and is awaiting review by adjacent regions.752
346. Discussion. We recognize that our decisions to prohibit wideband operations
(outside of the waiver process described elsewhere in this Second Report and Order) and to
consolidate the narrowband channels will impact existing and pending RPC plans. Nevertheless,
as a result, RPC plans already approved or on file with the Commission will require amendment.
We find that the substantial benefits resulting from accommodating broadband communications
and consolidating the narrowband channels outweigh the near-term concerns of RPCs. Indeed,
the fact that the narrowband consolidation will optimize the 700 MHz public safety band plan as
a whole, and promote the deployment of new technologies and broadband services, will be to the
advantage of the very RPCs whose current plans will be impacted. Accordingly, we require all
RPCs with approved plans or plans on file to submit amended plans consistent with the decisions
herein within 30 days of the effective date of this Second Report and Order.
d.
Internal Guard Band
347. Background. In the 700 MHz Further Notice, we tentatively concluded to
separate the broadband segment and the narrowband segment with a 1-megahertz internal guard
band (2 megahertz paired).753 The purpose of the guard band is to provide a buffer to minimize
interference between broadband and narrowband operations. Many commenters support
establishing a one-megahertz guard band.754 Some recommend that we allow the guard band to
be used on a coordinated basis.755 Others, like WCA, suggest that the size of the guard band be
left to the discretion of the public safety broadband licensee since technology evolves over time
and the guard band may be able to be reduced.756
348. Discussion. We adopt our tentative conclusion and agree with commenters that
an internal guard band is needed between narrowband and broadband operations to minimize
interference potential. Accordingly, we adopt a one-megahertz paired guard band (768-769/798799 MHz) between the broadband and narrowband segments. At this time, we decline to adopt
proposals that would permit coordinated use or leave the size of the internal guard band to the
discretion of the Public Safety Broadband Licensee. We believe that certainty in the band plan is
important particularly at the initial stages of the design and implementation of the public safety
751
Region 16 (Kansas) 700 MHz Further Notice Comments at 3.
752
Region 33 (Ohio) 700 MHz Further Notice Comments at 1.
753
See 700 MHz Further Notice, 22 FCC Rcd at 8157 ¶ 257.
754
See, e.g., Ericsson 700 MHz Further Notice Comments at 21; M/A-COM 700 MHz Further Notice Comments at
5; NPSTC 700 MHz Further Notice Comments at 21; Region 43 (Washington) 700 MHz Further Notice Comments
at 7; Qualcomm 700 MHz Further Notice Comments at 15; TIA 700 MHz Further Notice Comments at 3; Verizon
Wireless 700 MHz Further Notice Comments at 16; Alcatel-Lucent 700 MHz Further Notice Reply Comments at 1.
755
M/A-COM 700 MHz Further Notice Comments at 2-3; Missouri State Highway Patrol 700 MHz Further Notice
Comments at 9.
756
WCA 700 MHz Further Notice Comments at 4-5; see also Alcatel-Lucent 700 MHz Further Notice Comments at
iii.
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broadband network.757 We include this guard band as part of the public safety broadband license,
and require the Public Safety Broadband Licensee to use this guard band as a buffer between the
surrounding public safety broadband and narrowband operations.
e.
Border Issues
349. Background. In the 700 MHz Further Notice, we noted that one virtue of the
BOP and the Access Spectrum/Pegasus alternative proposal is its proposed shift in the spectral
location of the block dedicated to public safety, which would result in an overlap of 1 megahertz
of the 6-megahertz paired narrowband channels with TV channels 63 and 68, which Canada had
already agreed to clear.758 Because we tentatively concluded that we could not adopt the BOP,
we sought comment on whether to temporarily allow, in border areas, narrowband voice
communications within the public safety internal guard band, to account for the fact that, at the
time, Canada had not yet set a DTV transition date for channels 64 and 69.759 As discussed
elsewhere, the band plan we adopt incorporates a shift of the 700 MHz Public Safety Band down
by 1 megahertz.
350. Since we released the 700 MHz Further Notice, Canada announced that, as of
August 31, 2011, it will have completed its DTV transition, including on channels 64 and 69.760
Thus, while Canada has now established a firm DTV transition date, it will continue to trail the
U.S. DTV transition by two and a half years. Further, there remains support in the record to
obtain the benefits of the downward shift for purposes of narrowband operations that would be
impacted by Canadian TV operations.761 Alcatel-Lucent states, however, that a one-megahertz
shift will present interference issues as public safety broadband operations would be shifted into
existing TV channels 62 and 67, which have Canadian television station operations.762
351. Discussion. We find that our revised band plan sufficiently addresses these issues
arising at the Canadian border. By adopting a band plan that implements a shift of the 700 MHz
757
We do not foreclose the possibility of permitting the Public Safety Broadband Licensee to request that the
Commission revisit the creation of the one megahertz guard band, if technology advances such that the guard band
could be reduced without increasing the potential for interference.
758
700 MHz Further Notice, 22 FCC Rcd at 8158 ¶ 260.
759
Id. at 8158 ¶ 261. A few commenters expressed support for this use of the guard band. See, e.g., Alcatel-Lucent
700 MHz Further Notice Comments at 23-24; Frontline 700 MHz Further Notice Comments at 55.
760
Broadcasting Public Notice CRTC 2007-53 (May 17, 2007), found at
.
761
See, e.g., NPSTC 700 MHz Further Notice Comments at 25 (affirming “the virtues of the ‘permanent shift’ plan
under Proposals 3, 4 and 5”); APCO 700 MHz Further Notice Comments at 9-10 (“Proposal 3 in the FNPRM
. . . offers the best approach for addressing this issue, as it allows border areas access to narrowband channels.”);
M/A Com 700 MHz Further Notice Comments at 2-4 (supporting 1 megahertz downshift to accommodate
operations in border areas); Upper 700 MHz Licensees 700 MHz Further Notice Comments at 8-10 (arguing that the
only way to ensure nationwide interoperability for public safety’s mission-critical narrowband voice
communications is adoption of a band plan that includes permanent, nationwide narrowband interoperability through
shifting the public safety allocation down one MHz); California 700 MHz Further Notice Comments at 3
(supporting Proposals 3, 4, or 5).
762
Alcatel-Lucent 700 MHz Further Notice Comments at 22 (presenting a map showing the presence of Canadian
TV stations broadcasting on TV channels 62 and 67).
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Public Safety Band 1 megahertz lower in the 700 MHz Band, we find that narrowband
operations can occur in the uppermost one megahertz of channels 63 and 68 and thus outside of
channels 64 and 69 where there will be continued Canadian analog TV operations.763 In this
manner, narrowband operations can be undertaken at 769-770 and 799-800 MHz at the Canadian
border without interference concerns. Also, the downward shift makes it unnecessary for us to
authorize use of the public safety internal guard band to accommodate narrowband operations at
the border. With respect to Alcatel-Lucent’s concerns regarding the effect of Canadian
broadcasters operating on TV channels 62 and 67, we believe the effect on public safety
broadband operations will be very limited. As Alcatel-Lucent points out, the border area is not
densely populated, and it is unlikely that maximum use of the broadband segment would be
expected prior to the discontinuation of Canadian broadcasts in that spectrum.764 On balance, we
find that the benefits of the one-megahertz downward shift outweigh the limited impact on
broadband operations in the border area.
352. We do not, at this time, adopt any measures specific to the potential for continued
TV operations in Mexico. The comments filed on this issue do not suggest there is a pressing
need to take any particular actions at the present time concerning narrowband operations in the
area of the Mexican border.765 In the meantime, the United States and Mexico continue ongoing
discussions concerning Mexican broadcast operations at the border. Accordingly, we will take
future action, if and when appropriate, to address matters concerning public safety narrowband
operations near the Mexican border.
f.
Technical Parameters
353. In the 700 MHz Further Notice, we sought comment on whether it is appropriate
to provide the same flexibility to 700 MHz Public Safety broadband operations as that afforded
700 MHz Commercial Services Band licensees by implementing a PSD model for defining
power limits, permitting increased power in rural areas, and permitting measurement of power
levels on an average, versus peak, basis. We also sought comment on whether the technical
restrictions adopted for the 700 MHz Commercial Services Band with respect to interference
protection, if applied to public safety broadband spectrum, will protect adjacent band
operations.766 In response, several parties filed comments addressing technical issues. Below we
examine each technical issue separately.
763
See M/A Com 700 MHz Further Notice Comments at 3-4; Upper 700 MHz Licensees 700 MHz Further Notice
Comments at 8-10.
764
Alcatel-Lucent 700 MHz Further Notice Comments at 24.
765
Alcatel-Lucent states that along the U.S.-Mexico border, there are a number of primary assignments that affect
deployment of broadband systems, but the most potentially troubling ramifications from border operations are along
the Canadian boundary. Alcatel-Lucent 700 MHz Further Notice Comments at 22 & n.46. The Upper 700 MHz
Licensees state that public safety agencies located in regions along the border with Mexico would not confront
impairment because there are no Mexican television broadcast operations in TV Channels 62 and 67 along the
border. Upper 700 MHz Licensees 700 MHz Further Notice Reply Comments at 12 & n.3. Our own analysis
confirms that there are no full power TV stations operating in Mexico along the border on TV channels 62 and 67.
766
700 MHz Further Notice, 22 FCC Rcd at 8160 ¶ 267.
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Broadband Power Limits
354. Background. Motorola states that the Commission should adopt the same PSD
limits for public safety broadband as we adopted in the 700 MHz Report and Order for the
commercial, non-Guard Band licenses in the 700 MHz Band.767 It contends, however, that the
Commission should adopt stricter power flux density (PFD) limits. It argues that the PFD limits
adopted for commercial services are insufficient to protect adjacent public safety narrowband
operations. Motorola recommends that the Commission adopt a PFD limit of 300 uw/m2 for
operations in the public safety segment.768 Alcatel-Lucent opposes adopting this PFD limit at
this time. It argues that the Commission should wait until a more complete record is available.769
355. Discussion. We agree with Motorola that the public interest is served by
specifying power limits in terms of PSD limits for 700 MHz public safety broadband operations.
This approach to defining power limits will enable higher power signals from wider band
technologies. Further, it will better accommodate all technologies (i.e., it is more technologically
neutral)770 and help standardize 700 MHz broadband mobile (end user) equipment across both
the commercial and public safety broadband segments in the 700 MHz Band.
356. As suggested by Motorola, we also adopt the same PSD limits specified for the
commercial 700 MHz Band for operation in the 700 MHz public safety broadband segment.
Accordingly, we will allow 700 MHz public safety broadband base stations employing
bandwidths greater than 1 megahertz a maximum of 1kW/MHz ERP (i.e., no more than 1 kW
ERP in any one-megahertz segment).771 Stations operating with bandwidths of less than 1
megahertz will be permitted to operate at a power level up to 1 kW ERP over their bandwidth.772
357. For rural area773 operations, we received no objections to permitting increased
power for public safety broadband, as we had done in the 700 MHz Report and Order with
respect to commercial operations.774 Accordingly, we will permit power levels of up to 2
767
Motorola 700 MHz Further Notice Comments at 26; see also California 700 MHz Further Notice Reply
Comments at 7 (stating that it cannot comment on specific levels, but the public safety narrowband must be
protected from interference).
768
Id. at 27-28.
769
Alcatel-Lucent 700 MHz Further Notice Reply Comments at 11.
770
Under this approach, the maximum allowable power levels are defined on a “per megahertz of spectrum
bandwidth” basis, rather than on a “per emission” basis. This is helpful because with some technologies, only one
emission is transmitted within a licensee’s given bandwidth, while other technologies might employ multiple
emissions over that same bandwidth. Establishing a power limit on a “per emission” basis could allow licensees
employing a technology using multiple emissions to transmit more total energy in their given bandwidth than
licensing using a technology with only one emission.
771
See 700 MHz Report and Order, 22 FCC Rcd at 8099 ¶ 92.
772
For example, a base station transmitting a signal with a bandwidth of 200 kHz could employ a power level of 1
kW ERP over the 200 kHz bandwidth.
773
For purposes of this Second Report and Order, “rural areas” are those counties in the United States having a
population of fewer than 100 people per square mile, based on the most recently available population statistics from
the Bureau of Census. See Rural Report and Order, 19 FCC Rcd at 19128 ¶ 89; 47 C.F.R. § 27.50(d)(1).
774
700 MHz Report and Order, 22 FCC Rcd at 8099 ¶ 93.
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kW/MHz in rural areas. Also, consistent with our decision in non-rural areas, we will allow base
stations located in rural areas operating with bandwidths less than 1 megahertz to operate at
power levels up to 2 kW ERP over the licensee’s given bandwidth.
358. There was very little in the record concerning the issue of whether we should
adopt a PFD limit for public safety broadband. We conclude that the best course of action given
the limited record here is to decline to adopt a PFD limit in the public safety broadband segment.
We note, however, that should additional facts be presented, we may revisit this issue in the
future.
359. As we did for operations in the commercial 700 MHz Band, we specify that
power must be measured in “average” rather than “peak” terms.775 An “average” measurement
technique results in a more accurate measure of the interference potential for these technologies.
For the purposes of measuring “average power” we make the following determinations. First,
the technique shall be made during a period of continuous transmission and be based on a
measurement using one-megahertz resolution bandwidth. Second, we shall restrict the peak-toaverage (PAR) ratio of the radiated signal to 13 dB. Limiting the PAR to 13 dB strikes a balance
between enabling licensees to use modulation schemes with high PARs and protecting other
licensees from high PAR transmissions. Parties seeking to employ the “average power”
measurement technique should consult with the FCC Laboratory for guidance on the appropriate
averaging method for the particular technology they plan to use.776
(ii)
Broadband Emission Limit
360. Background. Alcatel-Lucent proposes that the Commission adopt an out-of-band
emission (OOBE) limit of 76+10logP for public safety broadband operations into the 700 MHz
public safety narrowband segment.777 Ericsson argues that the more stringent OOBE limits
continue to be necessary to protect public safety narrowband operations.778
361. Discussion. The public safety broadband segments (at 763-768 and 793-798
MHz) are bounded on the top by the one-megahertz internal guard bands, followed by the public
safety narrowband segments (at 769-775 and 799-805 MHz), and on the bottom by the Upper
700 MHz Band D Block. We adopt the following out-of-band emission (OOBE) limits for
public safety broadband transmissions: for base stations, which will transmit in the 763-768
MHz band, an OOBE limit of 76+10logP (dB) in a 6.25 kHz band segment in the 769-775 and
799-805 MHz bands; and for mobile/portable stations, which will transmit in the 793-798 MHz
band, an OOBE limit of 65 + 10logP in a 6.25 kHz band segment in the 769-775 and 799-805
MHz bands; We believe these limits will adequately protect public safety narrowband
operations while enabling viable broadband operations. Further, these limits provide the same
amount of protection previously provided to public safety narrowband operations from
commercial 700 MHz transmissions,779 and received support in the record.780 We also note that
775
Id. at 8103 ¶ 105.
776
Id. at 8104 ¶ 106.
777
Alcatel-Lucent 700 MHz Further Notice Comments at 20.
778
Ericsson 700 MHz Further Notice Comments at 29-30.
779
See Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission's Rules,
WT Docket No. 99-168, First Report and Order, 15 FCC Rcd 476, 518-20 ¶¶ 103-06 (2000).
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these are the same limits we adopt elsewhere for the Upper 700 MHz Band D Block and C Block
licensees with respect to the 700 MHz public safety narrowband segments.
362. Consistent with our decision elsewhere, we will not adopt an OOBE limit for
public safety broadband emissions falling outside the bottom part of the band (below 763/793
MHz) with respect to the adjacent D Block spectrum. We reach this conclusion because, under
the Public/Private Partnership, the Public Safety Broadband Licensee and the D Block licensee
will be authorized on adjacent spectrum and will use the same infrastructure.
(iii)
Broadband Interoperability Standard
363. Background. Alcatel-Lucent argues that the Commission should establish a
single nationwide interoperability standard in order to facilitate interoperability.781 Others, such
as Northrop Grumman, recommend that the Commission should not establish a broadband
standard now. They note that advanced 4G technologies are still in the early phase of market
entry. According to Northrop Grumman, establishing a public safety broadband standard would
be premature and stifle public safety’s present and future access to the marketplace and
commercial innovation.782 It contends that interoperability will develop through the evolution of
commercial broadband wireless and network standards, IP-based design of networks with new
standardized layers now being used commercially such as IP Multimedia Subsystems (IMS), and
the robust adaptability of the latest broadband wireless user equipment, with multi-band function
and/or software-defined characteristics, providing imbedded interoperability.783
364. Discussion. We find that the development of a nationwide broadband
interoperability standard is imperative. Having a common standard will lead to the development
of common network and subscriber equipment, and thus enable the economies of scale we
envision for the Public Safety Broadband Licensee. Furthermore, once a common standard is
adopted, all public safety entities will be required to follow this standard in order to participate in
the nationwide broadband network. This, in turn, will permit disparate public safety entities to
interoperate with each other, anywhere in the country. Rather than having the Commission
select this standard, however, we find that it would be more efficient and appropriate to require
the Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee to agree to a
broadband standard as part of their negotiation of the NSA. The Commission will have an
opportunity to pass on the standard so selected as part of its overall review, and approval, of the
NSA.
2.
Public Safety Broadband Licensee
365. In light of our nation’s current and anticipated public safety and homeland
security needs, we proposed a comprehensive plan to promote the rapid deployment of a
nationwide, interoperable, broadband public safety network, and thereby improve emergency
responsiveness. This plan is based on taking “a centralized and national approach to maximize
(Continued from previous page)
780
See Alcatel-Lucent 700 MHz Further Notice Comments at 20; Ericsson 700 MHz Further Notice Comments at
29-30.
781
Alcatel-Lucent 700 MHz Further Notice Comments at 18.
782
Northrop Grumman 700 MHz Further Notice Reply Comments at 7-8.
783
Id.
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public safety access to interoperable, broadband spectrum in the 700 MHz Band.”784
Accordingly, we proposed that a single, public safety broadband licensee (Public Safety
Broadband Licensee) be assigned the public safety broadband spectrum on a primary basis.785
366. We conclude that the public interest is best served by establishing a single
nationwide Public Safety Broadband License for the 700 MHz public safety broadband
spectrum. We will assign this license to a single Public Safety Broadband Licensee that will be
responsible for implementing the 700 MHz public safety nationwide interoperable broadband
network. This network will serve to provide public safety entities access to new broadband
technologies across the country. Further, as discussed elsewhere, we provide that the Upper 700
MHz D Block Licensee will gain access to the 700 MHz public safety broadband spectrum on a
secondary preemptible basis through a spectrum leasing arrangement with the Public Safety
Broadband Licensee. In the paragraphs below, we discuss the rules and policies governing the
Public Safety Broadband Licensee.
a.
Single Nationwide Geographic Area License
367. Background. In the 700 MHz Public Safety Ninth Notice, we sought comment on
whether to license the 700 MHz public safety broadband spectrum on a nationwide basis. We
recognized that licensing the entire public safety broadband spectrum to a single licensee would
be a departure from the Commission’s traditional practice of licensing individual state and local
jurisdictions on a site-by-site basis.
368. Most commenters agree that licensing a single, national public safety entity for
the provision of public safety broadband service would best achieve our goal of establishing a
nationwide interoperable broadband network. For example, NPSTC states that it “has become
increasingly apparent to NPSTC that deployment of a nationwide public safety broadband
network is enormously important for emergency responders at all levels of government: local,
state and federal.”786 APCO notes that “the public safety community has increasingly recognized
the need for consolidation of communications systems and functions.” APCO also notes that
there are “particular advantages to having a single licensee for the national broadband
network.”787 Others also support the nationwide license concept.788 On the other hand, some
oppose a national licensing approach. For example, the State of California indicates that it does
not believe that the nationwide, interoperable, broadband network proposed by the Commission
784
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14838 ¶ 3.
785
Id. at 14843 ¶ 19.
786
NPSTC 700 MHz Public Safety Ninth Notice Comments at 1.
787
APCO 700 MHz Public Safety Ninth Notice Comments at 5.
788
See, e.g., Ericsson 700 MHz Public Safety Ninth Notice Comments at i; First Response Coalition 700 MHz Public
Safety Ninth Notice Comments at 3; Cisco Systems 700 MHz Public Safety Ninth Notice Comments at iii; AT&T
700 MHz Public Safety Ninth Notice Comments at i; Missouri State Highway Patrol 700 MHz Public Safety Ninth
Notice Comments at 4-5; Verizon Wireless700 MHz Public Safety Ninth Notice Comments at 4-5; WCA 700 MHz
Further Notice Comments at 9; Western Fire Chiefs Association 700 MHz Further Notice Comments at 1; Virginia
Fire Chiefs Association 700 MHz Further Notice Comments at 2; Cyren Call 700 MHz Further Notice Comments 23; Region 9 (Florida) 700 MHz Further Notice Comments at 2; California 700 MHz Further Notice Comments at 4.
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is a viable alternative.789 Region 43 (Washington) argues that the 700 MHz spectrum should
remain under control of the regional planning committees.790 Sharp Communications contends
that public safety agencies should have the ability to license, own and operate their own highspeed data systems.791 The Metropolitan Washington Airports Authority also opposes a single
national public safety broadband licensee.792
369. Discussion. Traditional site-by-site licensing is designed primarily to license
dispatch radio systems on a transmitter-by-transmitter basis in local areas, yet is very
cumbersome for radio systems comprising hundreds or thousands of sites. On the other hand,
creating a single nationwide geographic area license offers greater flexibility and eases the
administrative burden on both the public safety community and the Commission.793 We find that
centralizing the responsibilities for implementing a broadband network across the entire county
under a nationwide geographic area license, assigned to a single entity, best serves the objectives
discussed in the 700 MHz Public Safety Ninth Notice, including the goals of achieving a
nationwide level of interoperability and a public safety network that is robust, cost effective,
spectrally efficient, and based on a flexible, IP-based, modern architecture.794 These goals would
be very difficult, if not impossible, to achieve under regional, state, or local level spectrum
planning approaches. We thus find that the aforementioned benefits of a nationwide license
outweigh the concerns expressed by some commenters.
370. In addition, a single Public Safety Broadband Licensee can achieve significant
bargaining and purchasing power in acquiring equipment and services needed for the nationwide
broadband system, and thus be able to obtain economies of scale with respect to network and
radio equipment not unlike nationwide CMRS systems. This licensee also could increase
spectrum efficiency as compared to multiple, specialized public safety network “silos”
overlapping in the same area and using incompatible frequencies and technologies. Accordingly,
we adopt our proposal to license the 700 MHz public safety broadband spectrum as a 10megahertz block (comprised of paired, 5-megahertz blocks) under a nationwide geographic area
license, and we will assign this license to the Public Safety Broadband Licensee.
789
California 700 MHz Public Safety Ninth Notice Comments at 1; see also Region 33 (Ohio) 700 MHz Public
Safety Ninth Notice Comments at 4; Texas Interoperability 700 MHz Public Safety Ninth Notice Comments at 4-7.
790
Region 43 (Washington) 700 MHz Public Safety Ninth Notice Comments at 1, 3.
791
Sharp Communications 700 MHz Public Safety Ninth Notice Comments at 1.
792
Metropolitan Washington Airports Authority 700 MHz Public Safety Ninth Notice Comments at 2; see also
Region 22 Public Safety Regional Planning Committee 700 MHz Public Safety Ninth Notice Comments at 1; San
Francisco Department of Emergency Management 700 MHz Public Safety Ninth Notice Comments at 6. Other
commenters suggest that it is premature to create a single national network. See, e.g., NATOA 700 MHz Further
Notice Reply Comments at 6-7; Spectrum Coalition for Public Safety 700 MHz Further Notice Reply Comments at
1-6; RCC 700 MHz Further Notice Reply Comments at 8-9.
793
The Commission recognized similar benefits of geographic-based licensing when it adopted state licensing in the
700 MHz Band. 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,
Third Memorandum Opinion and Order and Third Report and Order, 15 FCC Rcd 19844, 19867-69 ¶¶ 54-57
(2000).
794
700 MHz Public Safety Ninth Notice, 21 FCC at 14843 ¶ 20.
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Eligibility Criteria
371. Background. In the 700 MHz Public Safety Ninth Notice, we proposed that
selection of the Public Safety Broadband Licensee should be based on a number of criteria,
including, but not limited to, experience with public safety frequency coordination, not-for-profit
status, and ability to represent directly all public safety interests. We sought comment on these
and other criteria, “to ensure that the national licensee is able and qualified to adequately address
the needs of all public safety users.”795 We also proposed “that no commercial interest may be
held in the national license or licensee, and that no commercial interest may participate in the
management of the national licensee.”796
372. Several commenters state that the national public safety licensee should not be, or
be controlled in any way, by a commercial entity.797 Other commenters, however, express
support for permitting a commercial interest to be held in the public safety broadband licensee.798
We also received support in the record that the nationwide public safety licensee be a non-profit
organization.799
373. Discussion. Based on the comments filed on this issue, we establish certain
baseline criteria for selecting the Public Safety Broadband Licensee. First, we adopt our
proposal that no commercial interest may be held in this licensee, and that no commercial
interest may participate in the management of the licensee. The 700 MHz broadband spectrum
to be licensed to the Public Safety Broadband Licensee is public safety spectrum and must be
controlled by and managed by public safety.800 We thus reject those comments that express
support for permitting a commercial interest to be held in the licensee. Second, for similar
reasons, we also adopt our proposal that the licensee must be a non-profit organization. Third,
the Public Safety Broadband Licensee must be as broadly representative of the public safety
795
Id. at 14844 ¶ 27.
796
Id.
797
APCO 700 MHz Public Safety Ninth Notice Comments at 7; see also Peha 700 MHz Public Safety Ninth Notice
Comments at 5 (“We cannot place an unregulated for-profit monopoly in charge of critical infrastructure.”); Cyren
Call 700 MHz Public Safety Ninth Notice Comments at 9 (“[T]he national licensee must represent and be entirely
controlled by public safety entities. Its independence and authority must not be compromised by a commercial
entity(s) having even a de facto or, worse, a de jure controlling interest in that licensee.”).
798
See Sprint-Nextel 700 MHz Public Safety Ninth Notice Comments at 7 (“Some degree of participation by
commercial entities, such as through a non-controlling or otherwise capped interest, would allow entities with
specialized knowledge and real-world experience to more meaningfully contribute to the successful operation and
management of an efficient, nationwide, public safety broadband network.”); NTCH 700 MHz Public Safety Ninth
Notice Comments at 3 (“instead of divorcing [the Public Safety Broadband Licensee] from commercial carriers, it
would be made up of them.”) (emphasis in original); Mercatus 700 MHz Public Safety Ninth Notice Comments at 10
(“A for-profit mission and quality service to first responders should not be considered mutually exclusive ideals.”).
799
See NPSTC 700 MHz Further Notice Comments at 6; Nielson 700 MHz Public Safety Ninth Notice Comments
at 3 (“This authority should also be non-profit to avoid any commandeering of the products to be offered and to
prevent a monopoly in their availability.”).
800
APCO 700 MHz Public Safety Ninth Notice Comments at 7; NPSTC 700 MHz Further Notice Comments at 5;
Virginia Fire Chiefs Association 700 MHz Further Notice Comments at 2; Cyren Call April 5, 2007 Ex Parte
Notice, Attach. at 4 (“Only by having the FCC license held by an entity controlled by Public Safety will the public
safety community have ultimate assurance that the network will be built and operated to meet its requirements.”).
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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.801 Fourth, to ensure that the Public Safety
Broadband Licensee is qualified to provide public safety services, an organization applying for
the Public Safety Broadband License is 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. The written
certifications from these state and local governmental entities must verify that: (1) they have
authorized the applicant to use spectrum at 763-768 MHz and 793-798 MHz to provide the
authorizing entity with public safety services; and (2) the authorizing entities’ primary mission is
the provision of public safety services.802 Our goal in establishing these criteria is to ensure that
the Public Safety Broadband Licensee focuses exclusively on the needs of public safety entities
that stand to benefit from the interoperable broadband network.
374. To ensure broad representation and to provide a balance of the various public
safety interests, as stated above, representation on the Board of Directors of the Public Safety
Broadband Licensee must include organizations representative not only of first responders, but
of local, county, and state governments whose public safety entities must have a voice, as well as
emergency management officials who represent first responders at a state and local level. To
that end, we require 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 listed below, and two at-large members selected by the Public Safety and Homeland
Security Bureau and the Wireless Bureau, jointly on delegated authority.803 The nine
organizations that shall be represented on the board, with each organization represented by one
voting board member, are: the Association of Public Safety Communications Officials
801
NATOA 700 MHz Further Notice Comments at 3-4; see also San Diego County 700 MHz Further Notice
Comments at 12.
802
We believe these requirements address RCC’s concern that the Public Safety Broadband Licensee be qualified to
provide “public safety services” pursuant to Section 337(f)(1)(B). See RCC 700 MHz Further Notice Comments at
14 & 21-22. Section 337(a)(1) provides that the Commission must allocate 24 megahertz of spectrum in the Upper
700 MHz band for “public safety services.” Section 337(f)(1)(B), in turn, provides that “public safety services” are
services 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. Because the Public
Safety Broadband Licensee will be a nongovernmental organization that will be authorized by a government entity
whose primary mission is the provision of public safety services, it will clearly be providing “public safety services”
consistent with the requirements of Section 337(f)(1)(B)(ii). We recognize that Section 337(f)(1)(B) by its terms
only requires that a nongovernmental organization receive authorization from one governmental entity whose
primary mission is the provision of public safety services. However, given the nature of the license at issue here – a
nationwide license that will support an interoperable network for use by all public safety entities across the country
– we believe that applicants for the Public Safety Broadband License should be able to demonstrate support from a
wide range of public safety entities across the country. In particular, authorizations from a broad sample of the
public safety community for which the service is intended will better reflect the fact that the mission of the Public
Safety Broadband Licensee derives from the primary public safety mission of a nationwide array of governmental
entities. Furthermore, as the Public Safety Broadband Licensee launches its service in a given area, we will require
that it provide (prior to launch) the same type of certification from at least one public safety governmental entity that
plans on using the service in the area that will be served.
803
We clarify that, in all cases in this Second Report and Order in which authority to take actions is delegated jointly
to the Chiefs of PSHSB and WTB, we require any such actions to be approved by both Chiefs.
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(APCO);804 the National Emergency Number Association (NENA);805 the International
Association of Chiefs of Police (IACP);806 the International Association of Fire Chiefs (IAFC);807
the National Sheriffs’ Association;808 the International City/County Management Association
(ICMA);809 the National Governor’s Association (NGA);810 the National Public Safety
Telecommunications Council (NPSTC);811 and the National Association of State Emergency
804
APCO was established in 1935 and is dedicated to public safety communications. It has 15,000 members from
all types of public safety organizations including emergency call centers, law enforcement agencies, emergency
medical services, fire departments and emergency management centers. See APCO, at http://www.apcointl.com.
APCO’s membership on the Board of Directors of the Public Safety Broadband Licensee would ensure broad
representation of communications professionals in the public safety community.
805
NENA fosters the technological advancement, availability and implementation of a universal emergency
telephone number system, including IP-based Next Generation 911 capabilities. In carrying out its mission, NENA
promotes research, planning, training and education. NENA presently has 7,000 members. See NENA, at
http://www.nena.org. NENA’s membership on the Board of Directors of the Public Safety Broadband Licensee
would ensure representation of first responders and consideration of issues regarding the 911 link between the public
and first responders.
806
The IACP is the world’s oldest and largest nonprofit membership organization of police executives, with over
20,000 members in over 89 different countries. IACP’s leadership consists of the operating chief executives of
international, federal, state and local agencies of all sizes. See IACP, at http://www.theiacp.org. IACP’s
membership on the Board of Directors of the Public Safety Broadband Licensee would ensure representation of a
broad cross-section of police departments.
807
Established in 1873, the IAFC is a network of more than 12,000 chief fire and emergency officers. Its members
are the world’s leading experts in fire fighting, emergency medical services, terrorism response, hazardous materials
spills, natural disasters, search & rescue, and public safety legislation. See IAFC, at http://www.iafc.org. IAFC’s
membership on the Board of Directors of the Public Safety Broadband Licensee would ensure representation of a
broad cross-section of firefighters and emergency medical services first responders.
808
Chartered in 1940, the National Sheriffs’ Association is a non-profit organization dedicated to raising the level of
professionalism among sheriffs, their deputies, and others in the field of criminal justice and public safety. See
National Sheriffs’ Association at http://www.sheriffs.org. The National Sheriffs’ Association’s membership on the
Board of Directors of the Public Safety Broadband Licensee would ensure representation of law enforcement within
rural and local levels with smaller populations.
809
Founded in 1914, the ICMA has 8,200 members and is a local government leadership and management
organization. Its mission is to create excellence in local governance by advocating and developing the professional
management of local governments worldwide. See ICMA, at http://www.icma.org. ICMA’s membership on the
Board of Directors of the Public Safety Broadband Licensee would ensure representation of local governments of all
sizes, and will give a voice to city, town, and county governments of all sizes responsible for public safety and first
responder organizations.
810
Founded in 1908, the NGA is the collective voice of the nation’s governors. It provides governors and their
senior staff members with services that include representing states on Capitol Hill and before the Administration on
key federal issues and developing policy reports on innovative state programs. See NGA, at http://www.nga.org.
NGA’s membership on the Board of Directors of the Public Safety Broadband Licensee would ensure representation
of state governments, including state police and national guard agencies, and coordination with efforts to obtain
public safety communications interoperability at the state level.
811
NPSTC is a federation of organizations whose mission is to improve public safety communications and
interoperability through collaborative leadership. See NPSTC, at http://www.npstc.org. Formed on May 1, 1997,
NPSTC is a federation of organizations representing public safety telecommunications. NPSTC was originally
formed to encourage and facilitate implementation of the findings and recommendations of the Public Safety
Wireless Advisory Committee (PSWAC), established in 1994 by the Commission and the National
Telecommunications and Information Administration (NTIA) to evaluate the wireless communications needs of
(continued….)
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Medical Services Officials (NASEMSO).812 Each of the two members at large also shall have
one vote. No member organization shall be controlled by a commercial entity. If any one of
these organizations cannot participate on the voting board for any reason, such organization shall
be replaced on the board by another at-large member, selected by the Public Safety and
Homeland Security Bureau and the Wireless Bureau, jointly on delegated authority. This
composition of the voting board ensures that local public safety agencies and governments will
continue to have a voice in the use of the 700 MHz public safety broadband spectrum, as the
overwhelming number of first responders are local government employees or volunteers.
375. As stated above, each member of the Board of Directors shall have only one vote,
and decisions of the Public Safety Broadband Licensee, unless otherwise stated herein, shall be
by a simple majority vote of the Board of Directors. In addition, we specify below certain
minimum elements of the Articles of Incorporation or Bylaws, as appropriate, of the Public
Safety Broadband Licensee or for which there can be no conflicting provisions:
Articles of Incorporation:
· Purposes: Include, among the purposes of the Public Safety Broadband Licensee,
the following: In its role as the licensee and manager of the Public Safety
Broadband License, the purpose of 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.
· Powers: Include, among the powers of the Public Safety Broadband Licensee, the
following: The licensee shall, consistent with its purposes, enter into agreements
to ensure the construction, maintenance, and operation of a nationwide,
interoperable, public safety broadband network.
· Corporate Status: Specify non-profit status.
· Directors: Only those entities identified in this Second Report and Order for
representation on the Board of Directors shall be eligible for membership. Each
member entity shall have one representative on the Board of Directors.
· Amendment. The Articles of Incorporation may be amended, repealed, or altered
in whole or in part by a two-thirds (2/3) majority vote at any properly called
meeting of the Board of Directors, so long as no such action conflicts with any of
the requirements, prohibitions, or provisions of this Second Report and Order.
Bylaws:
(Continued from previous page)
local, tribal, state, and federal public safety agencies through the year 2010, identify problems, and recommend
possible solutions.
812
NASEMSO was formed in 1980 as a non-profit organization. NASEMSO supports its members in developing
EMS policy and oversight, as well as in providing vision, leadership and resources in the development and
improvement of state, regional and local EMS and emergency care systems. See NASEMSO, at
http://www.nasemsd.org. NASEMSO’s membership on the Board of Directors of the Public Safety Broadband
Licensee would ensure consideration of the unique communications needs of medical services first responders at all
levels of government.
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·
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·
·
·
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Members. Each member entity shall have one vote on the Board of Directors.
Proxy voting shall not be allowed.
Discontinuance of Membership. Any member of the Board of Directors may at
anytime resign from membership by forwarding to the FCC, to the attention of the
Defense Commissioner, a resignation in writing, provided that any outstanding
obligations of such member to the Public Safety Broadband Licensee have been
fully discharged. No Board Member may be removed or otherwise have their
participation on the Board of Directors limited at any time except by Order of the
FCC, on delegated authority to the Chiefs of the PSHSB and WTB.
Officers. A Chairman of the Board, Vice Chairman of the Board, and
Secretary/Treasurer each shall be selected every two years from among the
members of the Board of Directors, by a two-thirds (2/3) majority vote of the
Board of Directors. The Chairman shall have, as a representative of a member
entity, one vote, regardless of his/her position as Chairman.
Duties of Chairman. The Chairman shall be responsible for the orderly and
efficient conduct of the business of the Board of Directors; however, nothing shall
entitle the Chairman to conduct the business of the Public Safety Broadband
Licensee except as explicitly authorized and approved by the Board of Directors
by two-thirds (2/3) majority vote.
Duties of Vice Chairman. The Vice Chairman shall perform duties as assigned to
him/her by the Chairman and/or the Board of Directors, and shall act as Chairman
in the absence of the Chairman.
Duties of Secretary/Treasurer. The Secretary/Treasurer shall be responsible for
the financial affairs of the Public Safety Broadband Licensee, and shall ensure
that the Public Safety Broadband Licensee files, on a quarterly basis, as required
herein, a complete financial accounting to the Commission, as well as make
available, upon request by the Commission or Commission staff, financial
statements and/or other financial information as requested.
Quorum. A majority of the members of the Board of Directors shall constitute a
quorum for the transaction of business by the Board; however, the requirement of
a majority or two-thirds (2/3) majority vote shall mean a majority of all members
of the Board of Directors, not simply of members in attendance at a meeting and
counted as part of the Quorum.
Absence. Should any member of the Board of Directors be absent from three
consecutive meetings of the Board, such member entity shall be presented to the
Chiefs of PSHSB and WTB to decide, on delegated authority, whether such
absence constitutes resignation of such member entity.
Amendment. The Bylaws may be amended, repealed, or altered in whole or in
part by a two-thirds (2/3) majority vote any properly called meeting of the Board
of Directors, so long as no such action conflicts with any of the requirements,
prohibitions, or provisions of this Second Report and Order.
Non-profit Status. As a non-profit corporation, the Public Safety Broadband
Licensee shall have no authority to issue capital stock or equity. Under no
circumstances may a Member of the Board of Directors be controlled by or
represent a commercial entity.
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Compensation. Any compensation to or on behalf of a Board Member shall be
limited to services performed in furtherance of the purposes of the Public Safety
Broadband Licensee, and shall be approved by two-thirds (2/3) vote of the entire
Board of Directors.
376. To the extent some of these provisions may require extensive FCC oversight, we
find such oversight in the affairs of the Public Safety Broadband Licensee to be appropriate.
Such oversight is necessary in light of the nature of the public safety broadband spectrum
licensed to the Public Safety Broadband Licensee as a national asset, and in furtherance of the
Commission’s role in ensuring the protection and efficient use of such asset for the benefit of the
safety of the public.
377. In order to ensure the level of transparency required for the Commission and its
staff to provide meaningful oversight of the affairs of the Public Safety Broadband Licensee, the
Public Safety Broadband Licensee shall be required to submit, on a quarterly basis, a full
financial accounting to the Commission, in a format to be set forth in the NSA (in order to ensure
agreement from the commercial partner to such disclosure, as such disclosure will be related to
the financial affairs of the commercial partner), and as approved by the Commission. Such
quarterly financial reports shall be filed with the Commission, with a copy to the Chiefs of the
Wireless and the Public Safety and Homeland Security Bureaus.
c.
Selection Process
378. Background. We have adopted herein a single nationwide licensee approach and
specified minimum eligibility criteria. As noted, this is a significant departure from our
traditional approach to licensing public safety operations.
379. Discussion. We conclude that the Public Safety Broadband Licensee will have a
number of novel and significant responsibilities that will be essential to the success of the
national broadband public safety network. Thus, we take very seriously the importance of
selecting a well-qualified entity to serve as this licensee. Further, we recognize that the unique
requirements of this licensee that we establish herein likely means that no existing entity could
serve this role; rather, the Public Safety Broadband Licensee may need to be newly formed.
380. We delegate authority to the Chief of the PSHSB to issue a public notice within
thirty days of the release of this Second Report and Order soliciting applications for the Public
Safety Broadband Licensee. The public notice shall specify the baseline criteria we establish
herein, and describe the procedures and other requirements for submitting applications. The
Commission will select the Public Safety Broadband Licensee and grant to it the Public Safety
Broadband License consistent with the requirements and considerations set forth herein.
d.
Responsibilities of the Public Safety Broadband Licensee
381. Background. In the 700 MHz Public Safety Ninth Notice, we sought comment on
how a public safety broadband licensee could best implement a broadband network that
maximizes the inherent advantages of broadband communications.813 We also envisioned the
813
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14845 ¶ 31.
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prospect of this licensee engaging in a public/private partnership with a commercial entity for
shared use of a common network architecture.814
382. APCO recommends the public safety broadband licensee retain the discretion to
make its own determination regarding system architecture, the particular technology to be used
and network resiliency capability.815 Motorola states that the licensee must have the ability to
evaluate and determine the most suitable broadband technology to meet the needs of public
safety.816 Similarly, Cyren Call argues that the licensee should have ultimate control over the
development of the public safety specific technical standards and requirements to be
incorporated into the network.817 The Virginia Fire Chiefs Association comments that the
licensee should have discretion over the degree of commercial use of the public safety
network.818 NPSTC describes among the responsibilities of the licensee to negotiate an
agreement with the commercial partner, and structure the broadband network across the country,
by aligning user capacity needs, advising on application and device standards, invoking priority
access to the commercial broadband spectrum, and examining commercial secondary use of the
public safety broadband spectrum.819
383. Discussion. We find, consistent with the comments we received, that the
objectives specified in the 700 MHz Public Safety Ninth Notice can best be met by affording the
Public Safety Broadband Licensee significant flexibility and control in connection with the
construction and use of the nationwide broadband public safety network. Providing the Public
Safety Broadband Licensee sufficient flexibility will allow it to specify the requirements of the
public safety portion of the broadband network to best meet public safety needs. At the same
time, we seek to balance the discretion afforded the Public Safety Broadband Licensee with the
concurrent and separate responsibilities of the Upper 700 MHz Band D Block licensee and, of
course, the public interest. Accordingly, we assign to the Public Safety Broadband Licensee the
following general responsibilities:820
·
Negotiation of the Network Sharing Agreement (NSA) with the winning bidder at
auction for the Upper 700 MHz Band D Block license, pursuant to the terms and
timelines described below.
·
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.
814
See id. at 14845-48 ¶¶ 29, 32, 41.
815
APCO 700 MHz Public Safety Ninth Notice Comments at 10-11.
816
Motorola 700 MHz Public Safety Ninth Notice Comments at 15.
817
Cyren Call 700 MHz Further Notice Comments at 8.
818
Virginia Fire Chiefs 700 MHz Further Notice Comments at 2.
819
See NPSTC 700 MHz Further Notice Comments at 8.
820
Each of these responsibilities is addressed more fully at various points throughout this Second Report and Order.
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·
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. Any partnership with the D
Block licensee in conjunction with this responsibility shall not limit or alter the Public
Safety Broadband Licensee’s right to determine and approve the specifications of
public safety equipment that is used on its network.821
·
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. Accordingly, state and local public safety
entities must obtain approval from the Public Safety Broadband Licensee prior to
employing any equipment or applications 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 a desired piece of equipment or application, or particular
specifications for equipment or applications, from the Chief, Public Safety and
Homeland Security Bureau, on an expedited basis, and then to the full Commission.
·
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.822
·
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, and consistent with the procedures and
restrictions in connection with such waivers that we have established elsewhere in
this Second Report and Order.
·
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.
See infra ¶ 405.
822
The Commission previously has determined that Section 337 does not bar Federal Government public safety
entities from using the 700 MHz Band under certain conditions. 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, 184 ¶ 66 (1998); see also 47 C.F.R. § 2.103(b).
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Licensing Issues
384. Background. As noted above, in the 700 MHz Public Safety Ninth Notice, we
proposed licensing the 700 MHz public safety spectrum on a nationwide basis.823 We suggested
certain baseline performance requirements for the national licensee, but otherwise made no
specific proposals with regard to license terms.824
385. Discussion. We will grant the nationwide 700 MHz public safety broadband
license for a term not to exceed 10 years from February 17, 2009, which coincides with the term
of the NSA and the term of the D Block license established elsewhere in this Second Report and
Order. With certain limited exceptions, this geographic area license will provide the Public
Safety Broadband Licensee with blanket authority to permit construction and operations of
broadband base stations across the national license area.825 The licensee will have a renewal
expectancy, pursuant to which its license will be renewed barring violations of law, rules or
policy warranting denial of renewal, or changes in regulatory direction under the rulemaking
process, necessitating denial. Finally, we will permit public safety end users (mobile/portable
operation) to operate without individual licenses under the auspices of the Public Safety
Broadband License. In order to ensure the integrity of the nationwide broadband network and
the 700 MHz Public/Private Partnership that we are enabling, we will prohibit disaggregation or
partitioning of the Public Safety Broadband License. In addition, we prohibit the voluntary
assignment or transfer of control of this license.826 Also, as discussed elsewhere in this Second
Report and Order, we will allow the Upper 700 MHz D Block Licensee to gain access to the 700
MHz public safety broadband spectrum on a secondary preemptible basis, through a spectrum
leasing arrangement with the Public Safety Broadband Licensee, for use in the 700 MHz
Public/Private Partnership.
C.
700 MHz Public/Private Partnership
386. In this section, we adopt a regulatory framework for establishing a public/private
partnership between a 700 MHz Band commercial licensee and the Public Safety Broadband
Licensee to further the Commission’s goal of making a nationwide, interoperable broadband
network available to state and local public safety users. Consistent with the proposal raised in
the 700 MHz Further Notice, we conclude that it would serve the public interest to adopt service
rules establishing a nationwide 10-megahertz commercial license in the Upper 700 MHz Band D
Block that will be awarded to the winning bidder once it has entered into a Commissionapproved Network Sharing Agreement (NSA) with the Public Safety Broadband Licensee. This
D Block license will be conditioned upon its commercial licensee constructing and operating a
nationwide, interoperable broadband network across both the D Block and the 700 MHz public
823
See 700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14843 ¶ 19.
824
Id.
825
The license area of the Public Safety Broadband License is composed of the contiguous 48 states, Alaska,
Hawaii, the Gulf of Mexico, and the U.S. territories. The geographic scope of the Public Safety Broadband License
therefore matches the scope of the D Block license.
826
We will treat on a case-by-case basis possible involuntary transfers of control of the Public Safety Broadband
Licensee, or other possible transfers of control based on changes in the Board, such as the disbanding of a
constituent organization.
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safety broadband spectrum. This network must be used to provide both a commercial service
and a broadband network service to public safety entities.827
387. Accordingly, we designate the D Block in the Upper 700 MHz Band for use with
the 700 MHz Public/Private Partnership that we are enabling, and we provide substantive and
procedural safeguards applicable to this public/private partnership to address public safety
concerns.828 We establish requirements regarding the nature of the shared wireless broadband
network and the respective rights and obligations of the D Block licensee and the Public Safety
Broadband Licensee regarding their partnership and the network. We also adopt rules governing
the establishment and execution, prior to the award of the D Block license, of the NSA between
the Public Safety Broadband Licensee and the winning bidder of the D Block to facilitate shared
use of the network and the spectrum over which it operates.829 In addition, we place certain other
conditions on the D Block license to protect services to the public safety community and
facilitate the success of the 700 MHz Public/Private Partnership, including requirements relating
to the organization and structure of the partnership, reporting requirements, and a prohibition on
the discontinuance of public safety operations. Finally, we address other issues, including
bidding credits, license term and renewal, partitioning and disaggregation, license assignment
and transfer, wholesale, open access, and roaming proposals, and the applicability of certain
regulatory requirements to the D Block licensee.
1.
Adoption of the 700 MHz Public/Private Partnership
388. Background. In the 700 MHz Further Notice, we sought comment on Frontline’s
proposal that the Commission designate a nationwide 10-megahertz commercial license in which
the licensee would be responsible for constructing and operating a common, interoperable
broadband network infrastructure, operating on spectrum associated both with its license and the
700 MHz public safety broadband license, which would be used to provide both a commercial
service and a broadband network service to public safety entities.830 The commercial network
would have access to the public safety broadband spectrum on a secondary basis,831 and
broadband public safety users would have priority access to the network in times of
emergency.832 Frontline proposed specific performance requirements requiring the commercial
licensee to meet certain specified build-out benchmarks during the fourth, seventh, and tenth
827
700 MHz Further Notice, 22 FCC Rcd at 8161 ¶ 272.
828
Any reference to D Block in this order will refer specifically to the Upper 700 MHz D Block, except where
specifically noted to the contrary.
829
Parties to the NSA are the Public Safety Broadband Licensee, the winning bidder of the D Block license, the
special purpose bankruptcy remote entity to be the D Block licensee, the special purpose bankruptcy remote entity to
hold the network assets, and the Operating Company. References in this Second Report and Order to the rights and
obligations of the “Upper 700 MHz D Block licensee,” the “D Block licensee,” or other formulations used in this
order include, as appropriate, the exercise or discharge of such rights or obligations, respectively, by related entities
that are provided for in the NSA or otherwise as authorized by the Commission. Upon issuance of the D Block
license, the winning bidder of the D Block license will assign all of its rights and obligations under the Network
Sharing Agreement to the D Block licensee.
830
700 MHz Further Notice, 22 FCC Rcd at 8164 ¶ 277.
831
Id. at 8161-62 ¶ 273 n.553.
832
Id. at 8162 ¶ 274.
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years. Frontline also proposed a number of other restrictions on the commercial services
provided, including that those commercial services be provided on a “wholesale,” “open-access”
basis only, with nationwide roaming services.833
389. In Frontline’s filings on which we sought comment, Frontline contended that its
proposal would serve the key communications needs of the public safety community. In
particular, it argued that the proposal would provide the public safety community with more
broadband spectrum; facilitate the build-out of a nationwide, interoperable public safety
broadband network; promote maximum equipment choice; and provide public safety with unitlevel control over local agency networks.834 Frontline also contended that its proposal would
benefit other stakeholders, such as rural and smaller carriers who would benefit from nationwide
roaming services.835
390. We sought comment on the likely effects of Frontline’s proposal on both
commercial and public safety users in the 700 MHz Band and whether adoption of such a
proposal would serve the public interest. We also sought comment generally on whether, and to
what extent, the Commission should: (a) adopt certain, but not all, elements of the Frontline
proposal; (b) modify any elements of the proposal, adopt any additional requirements, or adopt
any alternative requirements to achieve the same or similar public interest goals; and (c) consider
alternative approaches to encourage public-private partnerships for sharing spectrum between
public safety users and commercial licensees in the 700 MHz Band.836
391. In response to the 700 MHz Further Notice, commenters supporting Frontline’s
proposal argue that, although some jurisdictions may be able to raise funds sufficient to build out
advanced networks, many others cannot. These commenters contend that build-out of a public
safety broadband network through private capital represents the best chance for establishing a
nationwide, interoperable public safety broadband network.837 For example, Embarq argues that
“a single network built, paid for, and operated by a wholesale-only provider, such as suggested
by the Frontline proposal, provides the best chance for various different federal, state, and local
Public Safety agencies to have a unified, effective network architecture supporting public
safety.”838 Several commenters express their support for establishing public/private partnerships
more generally. Sprint Nextel notes that “public-private partnerships can enable public safety
agencies to take advantage of commercial, off-the-shelf technology and otherwise benefit from
commercial carriers’ investments in research and development of advanced wireless
technologies.”839 Google notes that, “given the immense expense and expertise necessary to
build and operate a first-class wireless network, commercial and non-commercial entities should
833
Id. at 8163 ¶ 275.
834
Frontline 700 MHz Public Safety Ninth Notice Comments at 1.
835
Id.
836
Id. at 8160-68 ¶¶ 268-290.
837
See, e.g., Cellular South 700 MHz Further Notice Comments at 19-20; Embarq 700 MHz Further Notice
Comments at 3-4; Cyren Call 700 MHz Further Notice Reply Comments at vi; APCO 700 MHz Further Notice
Reply Comments at 2.
838
Embarq 700 MHz Further Notice Comments at 3-4.
839
Sprint Nextel 700 MHz Further Notice Comments at 7-8.
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be given all the regulatory tools necessary to work together to help solve each other’s
problems.”840 Some parties also express their support for the conditions that Frontline would
have us place on the commercial licensee associated with the proposed public/private
partnership.841
392. Other commenters oppose Frontline’s proposal. Several contend that Section 337
of the Act prohibits the Commission from adopting the Frontline proposal.842 Others argue that
the conditions Frontline proposes for the commercial licensee in the partnership, including
wholesale restrictions, open access, and roaming requirements, would likely reduce the number
of potential bidders and drive down the price of the spectrum843 or that such conditions would
require the public/private partnership to operate under a business model that is risky and
unproven.844 Opponents also argue that, instead of imposing restrictive conditions, the
Commission should let market forces work to provide infrastructure and/or service to the public
safety community.845
393. Opponents also express other concerns about the risks and uncertainties
associated with certain aspects of the Frontline proposal.846 Some are skeptical that a
commercial operator of a national public safety broadband network will serve public safety’s
needs.847 Noting Frontline’s proposal that the commercial licensee must “consult” with the
public safety broadband licensee on design, construction, and operation of the shared network,
NATOA argues that “the mere duty to ‘consult’ does nothing to protect the interests and goals of
the public safety community.”848
840
Google 700 MHz Further Notice Comments at 8.
841
See, e.g., PISC 700 MHz Further Notice Comments at 12; CCIA 700 MHz Further Notice Comments at 5-7;
Cellular South 700 MHz Further Notice Comments at 19-20.
842
CTIA 700 MHz Further Notice Comments at 19; L-3 700 MHz Further Notice Comments at 10; MetroPCS 700
MHz Further Notice Comments at 10; NATOA 700 MHz Further Notice Comments at 15; New York, NY 700 MHz
Further Notice Comments at 5-7; RCC 700 MHz Further Notice Comments at 20-22.
843
Alltel 700 MHz Further Notice Comments at 5 (stating that “limiting the number of bidders through service
restrictions and public interest obligations could result in a below market price for the E Block spectrum, effectively
giving it away without any concomitant guarantee of performance of the licensee’s promises.”); AT&T 700 MHz
Further Notice Comments at 10; CTIA 700 MHz Further Notice Comments at 18. But see Frontline Ex Parte, WT
Docket No. 06-150 (filed June 29, 2007) (arguing that adopting the Frontline proposal will increase the price of the
commercial license subject to public/private partnership obligations, by encouraging new entrants to bid and by
promising the winner access to public safety spectrum on a secondary basis).
844
AT&T 700 MHz Further Notice Comments at 12-13; MetroPCS 700 MHz Further Notice Comments at 10-11;
NATOA 700 MHz Further Notice Comments at 11; Union 700 MHz Further Notice Comments at 16.
845
MetroPCS 700 MHz Further Notice Comments at 80-81 (recommending that the Commission provide incentives
for all commercial licensees to forge cooperative arrangements with public safety, rather than “endorsing a
monopoly service provider”); Arcadian 700 MHz Further Notice Reply Comments at 4-6; AT&T 700 MHz Further
Notice Reply Comments at 10-17; Stelera Wireless 700 MHz Further Notice Reply Comments at 1-3.
846
Arcadian 700 MHz Further Notice Reply Comments at 4-6; NATOA 700 MHz Further Notice Reply Comments
at 5-6.
847
L-3 700 MHz Further Notice Comments at 11-12; NATOA 700 MHz Further Notice Comments at 12; New
York, NY 700 MHz Further Notice Comments at 7-8; RCC 700 MHz Further Notice Reply Comments at 23.
848
NATOA 700 MHz Further Notice Comments at 12.
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394. Finally, several commenters express partial or conditional support for the
Frontline proposal. For example, Cyren Call generally expresses support for the public/private
partnership approach outlined in Frontline’s proposal, but raises concerns about several aspects
of the proposal and recommends that the Commission address certain “structural defects” in the
proposal.849 APCO cites the potential benefits of the public safety/private partnership approach
outlined in Frontline’s proposal, but argues that additional measures are necessary to ensure that
such a partnership serves the needs of the public safety community.850
395. Discussion. We conclude that establishing a regulatory framework to effectuate a
public/private partnership between the Commission-selected Public Safety Broadband Licensee
and the winning bidder of the Upper 700 MHz Band D Block license would serve the public
interest by enabling the construction of a nationwide, interoperable broadband public safety
network to protect the safety of the life, health and property of all Americans. We also find,
however, that several modifications to Frontline’s proposal, as well as additional measures, are
necessary to ensure that such a partnership is successful and serves the needs of the public safety
community. Accordingly, we designate the D Block in the Upper 700 MHz Band to be licensed
to a commercial entity on a nationwide basis for the purpose of entering into the 700 MHz
Public/Private Partnership with the Public Safety Broadband Licensee, and we adopt a number of
conditions, requirements, and procedures to safeguard services to public safety entities and
address concerns about the success of the partnership, as discussed more fully below.
396. In the 700 MHz Public Safety Ninth Notice, we proposed a plan to promote the
rapid deployment of a nationwide, interoperable, broadband public safety network.851 Our
objective was to maximize public safety access to interoperable, broadband spectrum in the 700
MHz Band, and to foster and promote the development and deployment of advanced broadband
applications using modern, IP-based system architecture.852 We find that promoting commercial
investment in the build-out of a shared network infrastructure addresses the most significant
obstacle to constructing a public safety network – the limited availability of public funding.
Providing for a shared infrastructure that uses the D Block and the public safety broadband
spectrum will help achieve significant cost efficiencies.853 It will allow public safety agencies
“to take advantage of commercial, off-the-shelf technology and otherwise benefit from
commercial carriers’ investments in research and development of advanced wireless
technologies.”854 It will also benefit the public safety community by providing it with access to
an additional 10 megahertz of broadband spectrum during emergencies, when it is needed most.
849
Cyren Call 700 MHz Further Notice Comments at iii-iv.
850
APCO 700 MHz Further Notice Comments at 14-22. Other commenters also argue that additional conditions
should be imposed on the public safety/private partnership licensee to ensure that the partnership serves the needs of
public safety. See, e.g., Fire Fighters Georgia 700 MHz Further Notice Comments at 2; Fire Fighters Hawaii 700
MHz Further Notice Comments at 2; NPSTC 700 MHz Further Notice Reply Comments at 3.
851
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14838 ¶ 3.
852
Id.
853
See, e.g., APCO 700 MHz Further Notice Comments at 11; Northrop Grumman 700 MHz Further Notice
Comments at 5; Sprint Nextel 700 MHz Further Notice Comments at 7-8.
854
Sprint Nextel 700 MHz Further Notice Comments at 7-8; see also Cyren Call 700 MHz Further Notice Reply
Comments at vi.
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Most importantly, it will provide all of these benefits on a nationwide basis. The public/private
partnership approach thus provides 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.855 At the same time, it will 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 will both help to defray the costs of build-out and ensure
that the spectrum is used efficiently.
397. We are not persuaded that alternatives to a public/private partnership suggested
by some commenters would achieve the same benefits. For example, if we merely provided
incentives for carriers voluntarily to enter into equivalent partnerships, we could not be confident
that any carrier would actually agree to such an arrangement on a nationwide basis. Such ad hoc
partnerships could occur at a local or regional level, leaving large areas of the nation without an
interoperable public safety network. Separate, independently-created public/private networks
could also operate on different spectrum, making interoperability across the different networks
difficult to achieve.
398. In the sections that follow, we consider the record in this proceeding regarding
establishing a public/private partnership for development of a nationwide, shared interoperable
wireless broadband network – including those issues Frontline raises in its proposal and those
commenters identify – and we address the specific features that we establish with regard to the
700 MHz Public/Private Partnership.
399.
First, we set forth essential components of the 700 MHz Public/Private
Partnership. We specify certain parameters for the shared wireless broadband network, including
features relating to the technology platform, signal coverage, robustness and reliability, capacity,
security, operational capabilities and control, and certain equipment specifications. With regard
to the spectrum shared by the common network, we require the Public Safety Broadband
Licensee to lease the public safety broadband spectrum for commercial use by the D Block
licensee on a secondary, preemptible basis, and we provide that public safety entities will have
priority access to the Upper 700 MHz D Block spectrum during emergencies. We also establish
certain minimal performance requirements relating to construction and build-out of the shared
700 MHz Public/Private Partnership network. Next, we specify certain mandatory provisions of
the Network Sharing Agreement that the parties will enter into as part of the Public/Private
Partnership. In addition, we establish a license term for the D Block license. Finally, we provide
that this licensee will have the exclusive right and obligation to build out the shared network
using the 700 MHz public safety broadband spectrum, except in very limited situations.
400. Second, we provide several safeguards relating to the 700 MHz Public/Private
Partnership. These safeguards include certain procedural rules regarding how the NSA will be
negotiated and executed. Thus, we require that the NSA be approved by the Commission and
executed by the parties as a pre-condition of the grant of the D Block license to the winning
bidder. We also impose certain obligations regarding timeframes for the negotiation process.
We further establish that, if a negotiation dispute must be brought to the Commission, the
855
See, e.g., APCO 700 MHz Further Notice Comments at 11; Cellular South 700 MHz Further Notice Comments at
19-20; Embarq 700 MHz Further Notice Comments at 3-4; Cyren Call 700 MHz Further Notice Reply Comments at
vi.
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Commission may choose from a number of alternative measures, at its option, to address the
dispute, including issuing a decision resolving outstanding issues or possibly reauctioning the D
Block license.
401. In addition, to support continued construction and operation of the shared wireless
broadband network and to address contingencies that might result in the event that the D Block
licensee or any related entities suffer financial problems, or defaults on its obligations, we
impose a number of measures to ensure implementation of the network and the prevention of any
interruption in ongoing network services on which public safety users are depending. Given the
critical public interest goal of providing 700 MHz broadband network service to the nation’s
local and state public safety entities, these measures include establishing requirements relating to
the organization and structure of the 700 MHz Public/Private Partnership that should reduce the
risk that the D Block license or network assets will be drawn into bankruptcy. To guard against
discontinuance of operations, we prohibit this licensee or any related entities from discontinuing
or degrading service to public safety users absent Commission approval. We also require that
the Public Safety Broadband Licensee be granted an assignable right to purchase the assets of the
network in the event the D Block license is cancelled or terminated, by reason of default or for
any other reason, and a right of first refusal to purchase the network assets if and whenever such
assets are otherwise to be sold. In the event the D Block license is cancelled and the spectrum is
awarded to a new licensee, we provide that the Public Safety Broadband Licensee’s right to
purchase will be assigned to the new D Block licensee.
402. Third, we address the remaining issues relating to the D Block license.
Specifically, we conclude that although partitioning or disaggregation of the license will not be
permitted, we will permit assignment or transfer of the license provided that the Commission is
satisfied that this would be in the public interest. We also address other issues relating to the
commercial services offered by the D Block licensee under the license authorization. In
particular, we decline to adopt the wholesale/open access proposals for this license, or impose
special roaming requirements for application to this particular license. Finally, we clarify that
we will require the D Block licensee to meet regulatory obligations such as E911 and CALEA to
the same extent as providers in other commercial spectrum.
2.
Essential Components of Public/Private Partnership
a.
Shared Wireless Broadband Network
403. Background. In its original filings on which we sought comment in the 700 MHz
Further Notice, Frontline proposed that the shared broadband network should satisfy certain
general requirements, including meeting public safety standards for robustness, security,
redundancy, and interoperability.856 Frontline contended, however, that the specifications for the
shared broadband network should be left to negotiation between the commercial licensee and the
public safety broadband licensee, and its proposed rule would merely require that the commercial
licensee “consult” with the public safety broadband licensee before determining network
specifications. Frontline also proposed that the commercial licensee’s commercial operation be
856
Frontline 700 MHz Public Safety Ninth Notice Comments at 17.
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subject to the same survivability, throughput, security, and interoperability requirements
specified by the public safety broadband rules.857
404. Public safety commenters argue that Frontline’s proposal that the commercial
licensee only be obligated to “consult” with public safety is insufficient to ensure that the
technical specifications established for the network would meet public safety needs.858 APCO
argues that “the network sharing agreement must contain provisions to address the required
levels of service reliability, necessary security levels, system maintenance, redundancy and other
critical matters.”859 NPSTC states that “the network’s infrastructure and operations, and its
quality of service, must reflect public safety’s long identified standards of coverage, priority
access and system restoration, reliability and security.”860 NPSTC also states that capacity is a
key consideration, arguing that “the Commission should require a detailed capacity plan as one
of the central elements in the negotiated agreement . . . .”861 RCC expresses concern about the
commercial licensee’s ability to meet public safety needs, noting that “commercial interest
cannot, consistent with profit maximization, provide the coverage, network robustness,
maintenance and operations protocols, and other system characteristics required by public
safety.”862 Other commenters express concern about the potential for public safety network
requirements to make the spectrum less desirable to potential bidders. For example, AT&T
asserts that uncertainty regarding the scope of the “network design requirements” would make it
difficult for potential bidders to make an informed business judgment about the spectrum’s
value.863
405. Discussion. In order to have a successful public/private partnership with a shared
nationwide interoperable broadband network infrastructure that meets the needs of public safety,
we adopt certain network requirements. The public/private partnership network will serve as the
nation’s public safety wireless broadband network infrastructure, so it must meet the
requirements of a public safety communications network. Accordingly, we require that the
network incorporate, at a minimum, the following:
·
857
Specifications for a broadband technology platform that provides mobile voice, video,
and data capability that is seamlessly interoperable across agencies, jurisdictions, and
Frontline Mar. 6 Comments in WT Docket No. 06-150 at 13.
858
See NATOA 700 MHz Further Notice Comments at 12 (“the mere duty to ‘consult’ does nothing to protect the
interests and goals of the public safety community. There is apparently no requirement that the E Block licensee
adopt any recommendation of the public safety group.”).
859
APCO 700 MHz Further Notice Comments at 18.
860
NPSTC 700 MHz Further Notice Comments at 12.
861
Id. at 13. A number of commenters also suggested that the public safety community develop a “statement of
requirements” and publish it substantially prior to the auction. See, e.g., APCO 700 MHz Further Notice Reply
Comments at 15; Frontline 700 MHz Further Notice Reply Comments at 12-13; NENA 700 MHz Further Notice
Reply Comments at 2; Verizon Wireless 700 MHz Further Notice Reply Comments at 7.
862
RCC 700 MHz Further Notice Reply Comments at 52.
863
AT&T 700 MHz Further Notice Comments at 13; see also Verizon Wireless 700 MHz Further Notice Reply
Comments at 23-24, 25 (clear specifications of public safety’s requirements must be provided in advance of the
auction to comply with the requirements of Section 309(j)(3)(E) of the Act and ensure commercial success).
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geographic areas. The platform should also include current and evolving state-of-theart 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, we expect 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.
·
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 this 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-ofthe-art public safety systems (such as connection to the PSTN, push-to-talk, one-toone and one-to-many communications, etc.).
·
Operational control of the network by the Public Safety Broadband Licensee to the
extent necessary to ensure public safety requirements are met.
·
The Public Safety Broadband Licensee shall have the right to determine and approve
the specifications of public safety equipment that is 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 control
requirements established in the NSA.
·
A requirement, as explained more fully herein, that the Upper 700 MHz D Block
licensee make available to the Public Safety Broadband Licensee at least one handset
that would be suitable for public safety use and include an integrated satellite solution
capable of operating both on the 700 MHz public safety spectrum and on satellite
frequencies.
406. These requirements are to be implemented by the parties through the NSA, which
will also include the detailed specifications of the network that the D Block licensee will
construct. By allowing the parties to determine specific details, including the technologies that
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will be used, subject to approval by the Commission, we provide them 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.
b.
Spectrum Use
407. Background. Under Frontline’s proposal, the shared network would operate on
both the commercial licensee’s spectrum and the public safety 700 MHz broadband license
spectrum. In its filings on which we sought comment, Frontline proposed that the spectrum from
the two licenses would be shared in two ways. First, it proposed that the public/private network
would provide commercial services on 10-megahertz of spectrum licensed for commercial use
and on the public safety broadband spectrum on a secondary, preemptible basis.864 Second,
Frontline proposed that the network would provide public safety users with broadband service on
the public safety broadband spectrum but also provide public safety agencies with priority access
to its commercial spectrum in emergencies.865 With regard to emergency priority access,
Frontline further proposed that the procedures and protocols for such use should be defined in an
agreement between the commercial licensee and the national public safety licensee.866
408. Prior to Frontline’s submission of its proposal, we had sought comment on the
issue of commercial use of public safety spectrum on a secondary basis. Specifically, in the 700
MHz Public Safety Ninth Notice, we sought comment on whether to permit the leasing of the
public safety broadband spectrum to commercial providers on a secondary, unconditionally
preemptible basis.867 We noted that Section 337(a)(1) of the Act requires that the 24 megahertz
of 700 MHz spectrum be allocated for “public safety services.”868 We also sought comment in
the 700 MHz Public Safety Ninth Notice on whether it would be necessary, in order to allow the
commercial use of the public safety spectrum on a secondary basis, to make a specific allocation
for such secondary use in the 700 MHz Public Safety Band.869 In the 700 MHz Further Notice,
we noted that Frontline’s proposal was premised on, among other things, our permitting
commercial operations in the public safety spectrum on a secondary basis as proposed in the 700
MHz Public Safety Ninth Notice.870
409. Commenters have addressed both aspects of the proposed spectrum sharing by the
public/private partnership. With regard to the proposal to allow the commercial licensee in the
public/private partnership to use public safety spectrum for commercial operations on a
secondary basis, some commenters argue that Section 337 of the Act prohibits the commercial
864
Frontline 700 MHz Public Safety Ninth Notice Comments at 7; see also 700 MHz Further Notice, 22 FCC Rcd at
8162 ¶ 274.
865
Frontline 700 MHz Public Safety Ninth Notice Comments at i.
866
Frontline Mar. 6 Comments in WT Docket No. 06-150, at 14.
867
See 700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14848 ¶ 41.
868
See id. at 14849 ¶ 46.
869
See id.
870
700 MHz Further Notice, 22 FCC Rcd at 8161-62 n.553.
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use of public safety spectrum even on a secondary basis.871 Specifically, several argue that the
provision of commercial services in the public safety spectrum on a secondary basis would
violate the requirement of Section 337(a)(1) that such spectrum be allocated for “public safety
services.”872
410. In addition, some commenters argue that permitting public safety users to access
the 700 MHz commercial spectrum on a priority basis during emergencies would also violate the
requirement under Section 337(a)(2) that such spectrum be allocated “for commercial use.”873
These commenters also express concerns involving the implementation of emergency priority
access. MetroPCS argues that any system that relies on the implementation of a complex priority
scheme during an emergency would not be beneficial to public safety.874 It also argues that
preemption of commercial access during times of emergency could result in fatal consequences,
and that there is near unanimous agreement that such callers must be able to use their mobile
phones to call for help in such situations, such as by dialing 911.875 Verizon Wireless argues
that, instead of adopting the Frontline proposal, the Commission should consider establishing
rules for the commercial 700 MHz Band spectrum similar to the Commission’s existing Part 64
Priority Access Rules, which permit carriers voluntarily to offer public safety entities priority
access to open channels.876
411. Other commenters, however, support providing public safety users with priority
access to commercial spectrum during emergencies.877 APCO asserts that the current public
safety broadband allocation in the 700 MHz Band is insufficient to address all of public safety’s
requirements, especially during emergency operations.878 California supports the proposal, but
emphasizes that priority access must be instantaneously available to field users when they choose
and that preemption of commercial traffic should not require any hierarchical approval chain.879
Several commenters raise concerns that the term “emergency” is not sufficiently defined and
871
CTIA 700 MHz Further Notice Comments at 19; L-3 700 MHz Further Notice Comments at 10; MetroPCS 700
MHz Further Notice Comments at n.132; NATOA 700 MHz Further Notice Comments at 15; New York, NY 700
MHz Further Notice Comments at 5-7; RCC 700 MHz Further Notice Comments at 20-22. Cf. Cyren Call 700 MHz
Further Notice Reply Comments at 28-31 (arguing that Section 337 does not preclude the secondary commercial use
of the 700 MHz public safety spectrum); Frontline 700 MHz Further Notice Reply Comments at 23-27 (arguing that
Sections 1 and 301 permit, and Section 337 does not preclude, making public safety spectrum available for
commercial use on a secondary basis).
872
See CTIA 700 MHz Further Notice Comments at 19-20; L-3 700 MHz Further Notice Comments at 10;
MetroPCS 700 MHz Further Notice Comments at n.132; NATOA 700 MHz Further Notice Comments at 15; New
York, NY 700 MHz Further Notice Comments at 5-7; RCC 700 MHz Further Notice Comments at 20-22.
873
See id. at n.132.
874
See id. at 67.
875
See MetroPCS 700 MHz Further Notice Comments at 69.
876
See Verizon Wireless 700 MHz Further Notice Comments at 58; 47 C.F.R. Part 64 App. B.
877
See, e.g., APCO 700 MHz Further Notice Comments at 19; California 700 MHz Further Notice Comments at 6.
878
See APCO 700 MHz Further Notice Comments at 19.
879
See California 700 MHz Further Notice Comments at 6.
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urge the Commission to provide a more detailed explanation of the term in its rules.880 APCO
asserts that the definition should take into account that “much of what a first responder does on a
day to day basis involves an emergency situation.”881 GEOCommand asserts that unconditional
access solely as defined by a public safety entity may be too problematic, but that excessively
limited access is equally problematic.882 NPSTC asserts that priority access will be of little or no
value if limited to large incidents, that virtually every public safety response is an emergency “to
someone” and that the need for access should not be defined by the character of the incident but
rather by the need to assist citizens.883 Finally, California asserts that an exception to traffic
preemption should be made for 911 calls and asserts that the NSA should also allow for other
exceptions as they arise.884
412. Discussion. We permit the Public Safety Broadband Licensee to provide access
on a secondary and preemptible basis to this spectrum, pursuant to the spectrum lease specified
herein, for the purpose of enabling commercial operations within the band devoted to primary
public safety broadband use. The Upper 700 MHz D Block licensee will gain access to this
public safety broadband spectrum by means of a spectrum leasing arrangement with the Public
Safety Broadband Licensee. We also place additional conditions regarding the use of the D
Block spectrum, including a requirement that the D Block licensee provide the Public Safety
Broadband Licensee with priority access to the D Block license spectrum during emergencies.
413. We disagree with commenters who assert that the Act prohibits us from adopting
a plan facilitating a public/private partnership through a shared use of spectrum between the
Public Safety Broadband Licensee and a commercial spectrum lessee.885 We conclude that
Section 337(a)(1) does not prohibit the Public Safety Licensee from entering into the lease for
commercial operations, on a limited and preemptible basis as specified herein, of spectrum that is
allocated for public safety services. In addition, we find 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. Priority 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.
414. Commercial Operations in Public Safety Spectrum on a Secondary Basis. We
permit the leasing of the Upper 700 MHz Band spectrum currently allocated for public safety
880
See GEOCommand 700 MHz Further Notice Comments at 8 (arguing that Frontline proposal leaves the most
critical element of the relationship undefined and urges the Commission to consider the precise nature and scope of
the term necessary to justify access to E Block spectrum); NATOA 700 MHz Further Notice Comments at 11.
881
See APCO 700 MHz Further Notice Comments at 19.
882
See GEOCommand 700 MHz Further Notice Comments at 9.
883
See NPSTC 700 MHz Further Notice Comments at 14.
884
See California 700 MHz Further Notice Comments at 7.
885
CTIA 700 MHz Further Notice Comments at 19; L-3 700 MHz Further Notice Comments at 10; MetroPCS 700
MHz Further Notice Comments at 10; NATOA 700 MHz Further Notice Comments at 15; New York, NY 700 MHz
Further Notice Comments at 5-7; Verizon Wireless 700 MHz Further Notice Comments at 53-56; see also Sprint
Nextel 700 MHz Further Notice Comments at 8 (urging the Commission to analyze these issues to ensure that a
public/private partnership, if adopted, rests on firm legal footing).
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services to commercial providers on a secondary, unconditionally preemptible basis. As we
explain below, the spectrum leasing arrangement 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 337.886
415. We find that authorizing the Public Safety Broadband Licensee to enter into the
spectrum leasing arrangement in this band described in detail below is an integral element of the
package of rights and responsibilities we establish in this Second Report and Order with respect
to the 700 MHz Public/Private Partnership involving the Upper 700 MHz D Block license and
the Public Safety Broadband License. The Public Safety Broadband Licensee will be required to
lease the public safety spectrum for use by the D Block licensee on a secondary basis pursuant to
the requirements set forth in the NSA and established in this Second Report and Order.887 Thus,
under the 700 MHz Public/Private Partnership framework that we are adopting, the D Block
licensee will be obligated to construct a broadband network capable of operating on the public
safety broadband spectrum for the benefit of the Public Safety Broadband Licensee, and the
Public Safety Broadband Licensee will be obligated to permit secondary commercial operations
on the public safety broadband spectrum pursuant to the spectrum leasing arrangement.
416. We have determined that 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. 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.888 Given that this spectrum leasing
arrangement will support the build-out of a public safety network operating pursuant to the
Public Safety Broadband Licensee’s license, and, given the particular role of the Public Safety
Broadband Licensee in ensuring that the public/private network established pursuant to the 700
MHz Public/Private Partnership serves the interests of public safety, we conclude that permitting
the Public Safety Broadband Licensee to lease its spectrum for use by the D Block licensee as
part of the shared broadband network best serves the public interest. The Public Safety
Broadband Licensee is uniquely positioned to maximize the efficiency for public safety purposes
of this spectrum and maintain the unfettered use of this spectrum for public safety service.
417. We will require that this spectrum leasing arrangement take the form of a longterm spectrum manager leasing arrangement for the full term of the license.889 This type of
886
47 U.S.C. § 337(a)(1), (f)(1)(A).
887
We also require that this spectrum be subleased from the D Block licensee to the Operating Company through a
spectrum subleasing arrangement under the Commission’s rules. References in this order to the Public Safety
Broadband Licensee’s spectrum manager leasing arrangement with the D Block licensee also include reference,
where appropriate, to this spectrum subleasing arrangement.
888
Nothing in the Act or our rules prevents public safety entities from receiving service from commercial service
providers. See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended, WT
Docket No. 99-87, Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 22709, 22750 n.232
(2000) (stating that public safety entities, rather than constructing their own systems, may find it more cost-effective
to contract out to a commercial service provider).
889
See 47 C.F.R. §§ 1.9010, 1.9020.
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leasing arrangement enables a licensee to accord its spectrum lessee a significant degree of
operational autonomy without relinquishing de facto control over the licensed spectrum. At the
same time, the spectrum lessee remains ultimately responsible for ensuring that the spectrum is
used in a manner that complies with the applicable regulatory and statutory requirements. By
limiting the D Block licensee’s secondary use of the Public Safety Broadband Licensee’s
spectrum to leased access under a spectrum manager leasing arrangement, subject to the
conditions we are placing on the nature of that access, we thus ensure that the Public Safety
Broadband Licensee has the regulatory means (and obligation) to preserve the fundamental
public safety function of the band. Moreover, the Public Safety Broadband Licensee’s ultimate
control over the D Block licensee’s use of this band, coupled with the operational flexibility
accorded the D Block licensee under a spectrum manager leasing arrangement, should provide an
appropriate balance between commercial and public safety operations in the public safety
broadband spectrum. Specifically, the spectrum manager leasing arrangement permits the D
Block licensee to construct a network to serve its business needs, yet preserves the network
infrastructure required for primary public safety use in the Public Safety Broadband Licensee’s
band.
418. As further conditions on the spectrum leasing arrangement authorized here, the D
Block licensee’s commercial operations in the public safety spectrum must not cause interference
to primary users (i.e., public safety users) and must accept interference from primary users at all
times.890 To help ensure that commercial secondary use complies with these limitations, in the
public safety broadband spectrum we will require that the network be designed so as to
automatically assign priority to public safety users, to the exclusion and/or immediate
preemption of any commercial use on a dynamic, real-time priority basis, and that network
specifications are sufficient to guarantee that public safety users suffer no harmful interference or
interruption or degradation of service due to commercial operations in the public safety
broadband spectrum. Commercial service should therefore operate in an effectively “invisible”
manner with regard to public safety users.
419. We disagree with commenters who assert that the Act prohibits us from
permitting commercial operations on a secondary basis in the 700 MHz public safety spectrum to
facilitate the build-out of a public safety network.891 These commenters construe Section
337(a)(1), which directs the Commission to allocate 24 megahertz of the 700 MHz spectrum “for
public safety services,”892 as requiring such spectrum to be used exclusively for public safety
services.893 CTIA, for example, maintains that the Section 337 “expressly forbids” any use of the
890
See Amendment Of Parts 73 And 74 Of The Commission’s Rules To Establish Rules For Digital Low Power
Television, Television Translator, And Television Booster Stations And To Amend Rules For Digital Class A
Television Station, MB 03-185, Report and Order, 19 FCC Rcd 22038, ¶ 2 (2004).
891
CTIA 700 MHz Further Notice Comments at 19; L-3 700 MHz Further Notice Comments at 10; MetroPCS 700
MHz Further Notice Comments at 10; NATOA 700 MHz Further Notice Comments at 15; New York, NY 700 MHz
Further Notice Comments at 5-7; Verizon Wireless 700 MHz Further Notice Comments at 53-56; see also Sprint
Nextel 700 MHz Further Notice Comments at 8 (urging the Commission to analyze these issues to ensure that the
public/private partnership, if adopted, rests on firm legal footing).
892
See 47 U.S.C. § 337(a)(1).
893
See, e.g., Verizon Wireless 700 MHz Further Notice Comments at 53.
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relevant 24 megahertz for commercial services.894 The statutory provision, however, includes no
such limiting language. It requires neither that the 24 megahertz at issue be allocated exclusively
for public safety services nor that it be used only for such services.895 Moreover, Section
337(a)(1) confers upon the Commission the authority to allocate 24 megahertz for public safety
services “according to the terms and conditions established by the Commission.” We construe
this phrase as affording us broad discretion to impose conditions on the use of this spectrum to
effectuate its optimal use by public safety, and the condition at issue here serves just such a
purpose.896 Namely, the secondary preemptible commercial use condition will harness private
sector resources to facilitate the construction of a nationwide interoperable public safety
broadband network for use in this spectrum, and the record in this proceeding demonstrates the
pressing need for such a network.897 Furthermore, for purposes of this analysis, it is critical that
this spectrum will be used primarily by public safety, and public safety will have the absolute
right to preempt any commercial traffic on this spectrum. Thus, we conclude that permitting
commercial operations in these frequencies through this spectrum leasing arrangement on a
secondary preemptible basis pursuant to the plan we adopt here does not violate Section 337(a)
and is in fact fully consistent with both the “plain text” and purpose of the statute.
420. In any event, even were we to construe Section 337(a)(1) to require this 24
megahertz of spectrum to be devoted exclusively to the provision of “public safety services,” we
would reach the same conclusion because the definition of “public safety services” does not
foreclose the secondary preemptible commercial use at issue here. The statute flexibly defines
“public safety services” as services “the sole or principal purpose of which is to protect the
safety of life, health, or property,”898 which suggests that even the public safety licensee might
engage in other uses of the spectrum. Authorizing secondary preemptible commercial operations
does not impair or materially detract from that statutorily mandated “principal purpose.” Indeed,
it furthers that purpose, as noted above, by making funds available for the construction of a
nationwide broadband network that will greatly benefit public safety users.
421. Nor does Section 337(f)(1)(C), which states that “public safety services” are
services that are “not made commercially available to the public by the provider,” bar the
894
See CTIA 700 MHz Further Notice Comments at 20.
895
See Frontline 700 MHz Further Notice Reply Comments at 25 (“Nothing in Section 337 stands in the way of
allowing secondary uses that do not interfere with the 700 MHz block’s primary allocation. Not a word of the
statute addresses secondary uses, and the Commission regularly allows such uses.”). To the extent that we may have
previously suggested that Section 337 required that the frequencies in this allocation must be used exclusively for
public safety services, see, e.g., The Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010, First Report
and Order and Third Proposed Notice of Rulemaking, 14 FCC Rcd. 152, 183 ¶ 58, we reject such a view for the
reasons set forth above.
896
See Frontline 700 MHz Further Notice Reply Comments at 26 (“Allowing commercial secondary usage is also
entirely consistent with the Commission’s wide discretion to ‘establish terms and conditions’ over public safety
services under the statute.”).
897
See id. at 25 (“[A] public/private partnership to create a nationwide wireless broadband network that allows
preemptible secondary commercial uses expands the ability of public safety entities to provide ‘public safety
services.’”) (emphasis in original).
898
47 U.S.C. § 337(f)(1)(emphasis added).
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spectrum leasing arrangement under the requirements and conditions contemplated here. We
construe this language to refer to retail wireless operations, rather than to wholesale activities. In
particular, we understand the prohibition on “the provider” – in this case, the Public Safety
Broadband Licensee – offering services “to the public” to restrict the broad offerings, accessible
to the general public, that are the hallmarks of retail wireless offerings. This construction is
consistent with Section 337(f)(1)(A) – that the “sole or principal purpose” of “public safety
services” is to “protect the safety of life, health, or property”899 – in that it underscores
Congress’s determination that public safety should be the primary mission of the public safety
licensee (not operating a retail wireless business). The requirement we adopt here that the public
safety licensee enter into a wholesale spectrum leasing arrangement for use by the D Block
licensee – and only the D Block licensee – is a far cry from allowing it to engage in retail
operations with respect to services that are made “commercially available to the public” at
large.900
422. We do not regard this construction of Section 337 as inconsistent in any way with
the Commission’s conclusion in construing similar language in a different statutory provision. In
particular, in the Non-Accounting Safeguards proceeding, the Commission interpreted the
statutory definition of “telecommunications service” – “the offering of telecommunications for a
fee directly to the public, or to such classes of users as to be effectively available directly to the
public”901 – to encompass both retail and wholesale services.902 The Commission based that
conclusion partly on its reading of yet another statutory provision, Section 251(c)(4), which
refers to both “wholesale” and “retail” offerings of telecommunications services,903 and on the
legislative history of the definition of “telecommunications service,” which indicated that
Congress intended the definition to distinguish common carrier offerings, provided to the public,
from private carriage arrangements.904 We have no basis to conclude, however, that Congress
intended to make a similar distinction in requiring that “public safety services” not be “made
available to the public by the provider.” Congress adopted the definition of “telecommunications
service” as part of the Telecommunications Act of 1996,905 the primary purpose of which was to
“open[] all telecommunications markets to competition.”906 Congress enacted Section 337 in
899
47 U.S.C. § 337(f)(1)(A).
900
We do not use the term “wholesale spectrum leasing arrangement” here to distinguish such a spectrum leasing
agreement from any other form of leasing agreement. Rather, this term is simply used to distinguish the
arrangement at issue here from the retail operations in which a public safety licensee may not engage.
901
47 U.S.C. § 153(46).
902
Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934,
as Amended, CC Docket No. 96-149, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC
Rcd 21905, 22032-34 ¶¶ 263-265 (1996)(Non-Accounting Safeguards Order); Second Order on Reconsideration, 12
FCC Rcd 8653, 8670-71 ¶ 33 (1997)(Non-Accounting Safeguards Reconsideration Order).
903
47 U.S.C. § 251(c)(4)(requiring certain carriers “to offer for resale at wholesale rates any telecommunications
service that the carrier provides at retail”).
904
Non-Accounting Safeguards Order, 11 FCC Rcd at 22033-34 ¶¶ 264-65; see also Non-Accounting Safeguards
Reconsideration Order, 12 FCC Rcd at 8670-71 ¶ 33.
905
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996 Act)(codified at 47 U.S.C. §§ 151 et
seq.).
906
See Joint Statement of Managers, S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).
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1997 for the very different purpose of directing allocation of the Upper 700 MHz Band,
including the allocation of 24 megahertz to public safety. For this reason, we do not think it
necessary, or even appropriate, to construe Section 337 on the basis of Congressional intent in
enacting the local competition provisions of the 1996 Act.
423. Nonetheless, even if we were to read “not made commercially available to the
public” to prohibit common carriage offerings by the public safety licensee, this provision does
not bar the lease arrangement at issue here. The spectrum leasing arrangement, and the
conditions we place on use of that spectrum, is most akin to private carriage, in that the public
safety licensee does not makes services “available to the public” or to such classes of eligible
users as to be effectively “available to the public.”907 Under the rules we adopt today, the
required lease is a sui generis arrangement available only to the D Block licensee according to
the prescribed terms of the lease agreement between the parties.908 This limitation ensures that
the Public Safety Broadband Licensee focuses its efforts on public safety, rather than on
commercial operations, while nonetheless providing a source of financing that enables it to fulfill
the statutory goal of enhancing public safety. We conclude, therefore, that allowing the public
safety licensee to enter into a private carriage arrangement in which it leases public safety
spectrum for commercial use by the D Block licensee on a secondary basis presents no conflict
with Section 337(f)(1)(C).
424. We find that, in addition to being consistent with the text of Sections 337(a)(1)
and 337(f), this arrangement is consistent with the intentions of Congress to provide 24
megahertz of spectrum for public safety use. The secondary use will facilitate the construction
of the network that will provide public safety services while in no way impairing or limiting
public safety services in the spectrum. Denying public safety the benefits of secondary use
would thus work against the intent of Congress by denying public safety a means of efficiently
and effectively making use of their spectrum.909 We also note that we have taken additional
measures to ensure that the authorization for commercial use on a secondary basis in these
frequencies does not in practice either hinder or degrade the public safety services in the
spectrum. For example, we require safeguards adequate to ensure that the primary public safety
services are protected from interference on an automatic basis, and we prohibit the D Block
907
See National Ass’n of Regulatory Util. Comm’rs v. FCC, 525 F.2d 630 (D.C. Cir.), cert. denied, 425 U.S. 992
(1976)(NARUC)(defining common carrier as an entity that holds itself out to serve all potential users indifferently or
is required by law to serve all potential users indifferently); see also 47 U.S.C. § 332(d)(1)(an entity is a commercial
mobile service provider and regulated as a common carrier if it provides a mobile service “for a profit and makes
interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively
available to a substantial portion of the public”).
908
See NARUC, 525 F.2d at 641 (essential to the common carrier concept is that the carrier undertakes to carry for
all people indifferently), 642 (“The common law requirement of holding oneself out to serve the public
indiscriminately draws such a logical and sensible line between the two types [common and private] of carriers.”).
909
See Cyren Call 700 MHz Further Notice Reply Comments at 30 (arguing that “it cannot have been the intent of
Congress to provide the Public Safety community with an allocation of spectrum and yet deprive it of the means to
make use of that spectrum even if those means have been developed and embraced by Public Safety and the FCC”);
NPSTC 700 MHz Further Notice Reply Comments at 5 (asserting that it would be “incongruous that a provision,
directed towards ensuring a public safety allocation in the 700 MHz Band, would preclude effective use by public
safety”).
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licensee from discontinuing or degrading service to public safety users. Accordingly, both the
text and the statutory purpose argue for allowing this secondary use.
425. Our decision to permit the Public Safety Broadband Licensee to provide the D
Block licensee secondary and preemptible access to the 700 MHz public safety broadband
spectrum is an integral element of the unique package of rights and responsibilities of the
public/private partnership established in this Second Report and Order. Specifically, the access
that we provide to the D Block licensee is based on a number of factors specific to this
partnership, including: (1) the complementary requirement that the D Block licensee provide the
Public Safety Broadband Licensee with priority access to the D Block license spectrum during
emergencies, (2) the incorporation of the requirements set forth in this Second Report and Order
as well as the terms and conditions of the NSA into the leasing arrangement, (3) the provision of
a means to enable private sector resources via the 700 MHz Public/Private Partnership to finance
the construction of a nationwide, interoperable public safety broadband network, in light of how
the record in this proceeding demonstrates the pressing need for such a network, and (4) the
mandates that the network be designed so as to assign priority to public safety users
automatically, to the exclusion and/or immediate preemption of any commercial use on a
dynamic, real-time priority basis, and that network specifications be sufficient to guarantee that
public safety users suffer no harmful interference or interruption or degradation of service. We
thus do not intend to permit any other leasing arrangements involving the 700 MHz public safety
spectrum outside of the unique circumstances of the public/private partnership and the specific
conditions we place upon the leasing arrangement between the Public Safety Broadband
Licensee and D Block licensee.
426. Priority Public Safety Access to Commercial Spectrum During Emergencies. As
part of its responsibilities in managing the shared wireless broadband network, we 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 (in addition to the 700 MHz
public safety broadband spectrum). In determining what constitutes an emergency, we agree
with Frontline that the definition of an “emergency” for this purpose should be left to negotiation
between the parties.910 The potential disruption of commercial service in the D Block license,
while wholly appropriate in an emergency situation, must nonetheless be limited to the most
serious occasions.911 Otherwise the commercial viability of the 700 MHz Public/Private
Partnership could be jeopardized. To balance these competing concerns, we require the parties
to define “emergency” for purposes of priority access to D Block license spectrum as part of the
NSA.
427. We expect that the terms of the NSA will ensure cooperation by the D Block
licensee and the Public Safety Broadband Licensee when they are called upon to coordinate
priority access to D Block license spectrum for first responders facing an emergency.
Nevertheless, we recognize that there may be occasions when the parties are unable to agree that
910
Frontline Mar. 6 Comments in WT Docket No. 06-150, at 14.
911
These limitations shall apply to the emergency access we require here. Although we mandate that the D Block
licensee allow the Public Safety Broadband Licensee to access the D Block license spectrum during emergencies,
nothing in this Second Report and Order shall be construed as prohibiting the D Block licensee from otherwise
offering its commercial services to the Public Safety Broadband Licensee.
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an emergency situation requires priority access to the D Block license spectrum, especially in
circumstances that do not clearly fall within the definition of “emergency” negotiated by the
parties in the NSA. On these occasions, the Public Safety Broadband Licensee may request that
the Commission declare, on an expedited basis, that particular circumstances warrant emergency
priority access. In order to facilitate this process and ensure a prompt response, we delegate
authority to the Defense Commissioner to decide these requests and amend Section 0.181 of our
Rules to reflect this new duty.
428. We emphasize that this priority access to D Block license spectrum is intended to
ensure that public safety entities have sufficient bandwidth for their emergency communication
needs. Under emergency conditions, all public safety entities in the affected area will have realtime access, as needed, to all D Block license spectrum on a priority basis over commercial
traffic and will preempt ongoing commercial traffic to the extent necessary. In this regard, we
require the D Block licensee to provide appropriate warnings to its commercial customers about
the potential interruption of their service during emergencies due to preemption by public safety
users. The NSA should address how the D Block licensee will satisfy this obligation, including,
for example, encouraging the use of devices that can access spectrum other than the D Block.
The NSA must also recognize that emergency 911 calls from commercial users also play a
critical role in safeguarding public safety and should be accorded some level of priority, which
may be lower priority than public safety communications but will not be subject to interruption
of ongoing calls by public safety users and will have priority over all other commercial uses.
429. We find 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. The D Block
license spectrum is still allocated for commercial use, will be used primarily to provide
commercial services to the public at large, and will be assigned by competitive bidding pursuant
to Section 309(j) of the Act. Although in an emergency, the priority access to network services
is provided to public safety users, this service itself is a commercial service that will be provided
to public safety for a fee, albeit one that is not made available to the general public and is
provided according to terms specified in regulation. Further, because emergency access to
commercial spectrum would be triggered only in rare circumstances, it should not hinder the
licensee from operating a successful commercial service. We therefore conclude that it is not
inconsistent with Congressional intent that this spectrum be used by public safety in times of
emergency.
430. We also find that the D Block license is consistent with our statutory mandate to
assign commercial 700 MHz Band spectrum by competitive bidding pursuant to Section 309(j)
of the Act. The conditions associated with the D Block license do not alter that requirement or
prevent us from offering the D Block at auction. The Commission has stated that “the relevant
statutory prerequisite [for competitive bidding], as set forth in Section 309(j) of the Budget Act,
is that mutually exclusive applications are accepted for filing. This standard does not require that
the relevant spectrum be completely unoccupied by other services.”912 We will accept mutually
912
Amendment of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring
Systems, PR Docket No. 93-61, 10 FCC Rcd 4695, ¶ 55 (1995).
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exclusive applications for filing with regard to the D Block spectrum, which will be subject to
auction and will be used primarily to provide commercial services to the public at large.
431. Secondary Markets Rules. In permitting the Public Safety Broadband Licensee to
enter into this spectrum leasing arrangement subject to the conditions we set out in this order, we
waive the Commission’s spectrum leasing policies and rules insofar as they prohibit public
safety licensees from entering into spectrum leasing arrangements for commercial operations.913
We determine, consistent with our proposal in the 700 MHz Public Safety Ninth Notice,914 that
permitting commercial use of public safety spectrum on a secondary basis on an unconditionally
interruptible basis, as part of the 700 MHz Public/Private Partnership for developing an
interoperable network for public safety use, would serve the public interest.
c.
Performance Requirements
432. Background. In the 700 MHz Further Notice, we sought comment on Frontline’s
proposal that the commercial licensee responsible for constructing the shared network be
required to meet the following build-out benchmarks: provide coverage to 75 percent of the
United States population within four years of the 700 MHz “auction clearing date;” provide
coverage to 95 percent of the United States population within seven years; and provide coverage
to 98 percent of the United States population within 10 years.915 With regard to Alaska, the 700
MHz Further Notice sought comment on Frontline’s proposal that the licensee be required to
provide coverage to all Alaskan cities of 10,000 or more within four years of the 700 MHz
auction clearing date.916
433. In comments to the 700 MHz Further Notice, Frontline proposes that for the
continental United States and Hawaii the D Block licensee be required to cover: 75 percent of the
U.S. population (or equivalent geographic coverage) within four years; 95 percent of the U.S.
population (or equivalent geographic coverage) within seven years; and 99 percent of the U.S.
population (or equivalent geographic coverage) within ten years.917 With respect to Alaska,
Frontline proposes that the D Block licensee be legally obligated to providing coverage to all
Alaskan cities of 5,000 or more by the end of the fourth year after construction begins, and
thereafter the D Block licensee should be required to work with the Alaska Land Mobile Project
913
See Secondary Markets Second Report and Order, 19 FCC at 17529-31 ¶¶ 53-56.
914
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14849 ¶ 44.
915
700 MHz Further Notice, 22 FCC Rcd at 8162 ¶ 274.
916
Id. Frontline Mar. 26 Ex Parte, WT Docket No. 06-150, Attach. at 3-4 (proposed 47 C.F.R. § 27.14). Frontline
specified that the “auction clearing date” “refer[ed] to the Analog Spectrum Recovery Firm Deadline provided for in
Section 3002 of the Deficit Reduction Act of 2005.” Id.
917
Frontline 700 MHz Further Notice Comments at 40-41; see also Frontline 700 MHz Further Notice Reply
Comments at 19. Frontline stated that, if the Commission chooses a geographic based build-out requirement, the
obligation should include coverage of Indian lands, but not federal lands. Frontline also indicated that, if the
Commission chooses a population-based coverage requirement, the D Block licensee should be required to work
with the adjacent public safety band licensee where public safety coverage needs might diverge from the goal of
maximizing population coverage. See Frontline Mar. 26 Ex Parte in WT Docket Nos. 96-86 and 06-150 and PS
Docket No. 06-229 at 7-8.
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to formulate a plan appropriate to Alaska’s unique coverage challenges.918 Frontline states that
these performance requirements should take effect on the later of either the date the D Block
license is granted or the statutorily imposed DTV transition date of February 17, 2009.919
434. In its comments, NPSTC states that it strongly encourages the Commission to
mandate minimum coverage requirements of 99.3 percent of the population at year 10.920
NPSTC states that its 10-year population-based benchmark proposal would provide coverage to
every county with a population density of five or more persons per square mile. NPSTC also
thinks that it is important for the Commission to impose interim coverage benchmarks for the
fourth and seventh years. NPSTC proposes interim benchmarks of 25 percent of population
within four years and 95 percent of population within seven years.921 In its July 6, 2007 Ex Parte
filing, NPSTC revises its first interim benchmark to 75 percent of population within four years
and maintains it second and third benchmark proposals of 95 percent of population within seven
years and 99.3 percent of population in 10 years.922 NPSTC also states in its Ex Parte that it
would support additional requirements to ensure coverage for isolated population centers, and
anticipates the use of satellite technologies to provide coverage to remote areas.
435. APCO, the International Association of Chiefs of Police (IACP), the International
Association of Fire Chiefs (IAFC), and California state that they support the population-based
benchmark proposal outlined in NPSTC’s comments.923 APCO, IACP and IAFC also call for
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 national public safety license and commercial licensee jointly determine, in
consultation with a relevant community, that such additional coverage will not provide
significant public benefit.”924 Cyren Call proposes 50 percent population coverage at four years,
80 percent population coverage at seven years, and 99 percent population coverage at 10 years.925
RCC argues that the Commission should impose a geographic coverage requirement because
public safety has coverage needs in low or zero population areas.926 NENA argues that the
Commission should impose a mix of population- and geographic-based performance
918
Frontline 700 MHz Further Notice Comments at 41. We note that, in its filings prior to the 700 MHz Further
Notice, Frontline’s proposed build-out rule for Alaska would have covered only Alaskan cities of 10,000 or more by
the end of the fourth year. See Frontline Mar. 26 Ex Parte in WT Docket Nos. 96-86 and 06-150 and PS Docket No.
06-229 at 8.
919
See Frontline 700 MHz Further Notice Comments at 40-41; see also Frontline Mar. 26 Ex Parte in WT Docket
Nos. 96-86 and 06-150 and PS Docket No. 06-229 (proposed rule modifications).
920
NPSTC 700 MHz Further Notice Comments at 12-13.
921
Id.
922
NPSTC 700 MHz Further Notice Ex Parte at 2 (filed July 6, 2007).
923
APCO 700 MHz Further Notice Comments at 18; California 700 MHz Further Notice Reply Comments at 4;
NPSTC 700 MHz Further Notice Comments at 12; APCO, IACP and IAFC 700 MHz Further Notice Ex Parte (filed
July 13, 2007); see also TIA 700 MHz Further Notice Comments at 4-5.
924
APCO, IACP and IAFC 700 MHz Further Notice Ex Parte (filed July 13, 2007).
925
Cyren Call 700 MHz Further Notice Comments at 21.
926
RCC 700 MHz Further Notice Comments at 60; see also MetroPCS 700 MHz Further Notice Comments at 64;
MetroPCS 700 MHz Further Notice Reply Comments at 49.
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requirements.927 AT&T argues that in addition to a population- or geographic-based build-out
requirement, the Commission should impose a public safety loading or participation
requirement.928
436. Embarq argues that the Commission should adopt stringent build-out
requirements in both urban and rural markets.929 Northrop Grumman urges the Commission to
permit flexibility to allow interim deployment of local or regional broadband networks by public
safety entities in areas where the national broadband network build out will not occur in the near
term.930 Region 9 (Florida), Region 14 (Indiana), and Region 16 (Kansas) express concern that
the proposed build-out schedule would result in long delays before public safety will be able to
access the system, especially in rural areas.931 With respect to the date when the performance
requirements should begin to take effect, Embarq notes that any build-out requirements that the
Commission imposes must recognize that band clearing will not occur until the DTV transition is
completed on February 17, 2009.932
437. Discussion. We adopt specific performance requirements that include three
population-based build-out benchmarks that cover the nationwide D Block license area.933
Specifically, we will require 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 of the population of the nationwide license area by the end of the seventh
year, and 99.3 percent of the population of the nationwide license area by the end of the tenth
year. To meet these requirements, the D Block licensee must use the most recently available
U.S. Census Data. We conclude that the build-out requirements we impose will ensure that
public safety needs are met.
438. While commercial providers typically focus exclusively on building out high
population areas, we recognize that the needs of first responders are also important in smaller
towns and rural areas. In order to ensure that less populous areas are not neglected in the D
Block licensee’s build-out efforts, we adopt certain additional measures to encourage coverage in
those areas.934 Accordingly, as discussed elsewhere, we require that the D Block licensee meet
our initial population benchmarks based on a build-out schedule specified in the NSA consistent
with the public safety needs.935 We also require the D Block licensee to offer at least one handset
927
NENA 700 MHz Further Notice Comments at 4.
928
AT&T 700 MHz Further Notice Reply Comments at 24.
929
Embarq 700 MHz Further Notice Comments at 5.
930
Northrop Grumman 700 MHz Further Notice Comments at 5.
931
Region 9 (Florida) 700 MHz Further Notice Comments at 3; Region 14 (Indiana) 700 MHz Further Notice
Comments at 2; Region 16 (Kansas) 700 MHz Further Notice Comments at 3.
932
Embarq 700 MHz Further Notice Comments at 5 n.3.
933
The nationwide D Block license area is composed of the contiguous 48 states, Alaska, Hawaii, the Gulf of
Mexico, and the U.S. territories.
934
See NPSTC 700 MHz Further Notice Ex Parte at 2 (filed July 6, 2007) (requesting that in addition to three
population-based build-out benchmarks, the Commission should also adopt certain additional requirements to ensure
coverage to isolated population centers).
935
See “Network Sharing Agreement (NSA) and Mandatory Provisions,” supra.
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suitable for public safety use that includes an integrated satellite solution pursuant to the terms,
conditions, and timeframes set forth in the NSA. These additional requirements will facilitate
coverage to rural and zero population areas if the public safety users need such coverage.936
Imposing specific build-out requirements through the NSA provisions will ensure that the D
Block licensee’s performance requirements are responsive to the public safety needs.
439. Our three population-based construction benchmarks will take effect beginning on
February 17, 2009.937 This is the statutorily imposed DTV transition date and is the same date
that build-out obligations for the other unauctioned commercial 700 MHz Band licensees begin
to take effect.938 Thus, our four, seven, and ten year construction benchmarks for the D Block
licensee will be calculated as starting from February 17, 2009. Use of this date provides
regulatory parity and it recognizes that the DTV transition will not be completed until this
date.939 As a result, using the February 17, 2009 date will provide regulatory certainty, promote
build-out of the shared network associated with the Public Safety Broadband License, and foster
development of the public safety broadband network. We note that the D Block licensee may
begin constructing its system prior to February 17, 2009, and may begin operating its system
prior to that date so long as it provides appropriate interference protection to incumbent cochannel and adjacent channel broadcasters.940
440. The Commission will apply the three population-based construction benchmarks
over the nationwide D Block license area. Accordingly, the D Block licensee must employ a
signal level sufficient to provide adequate service to the relevant percentage of the population
over the nationwide D Block license area.941 Moreover, we require that the network and signal
levels employed to meet these benchmarks be adequate for public safety use, as defined in the
Shared Wireless Broadband Network sub-section herein and further defined by the NSA, and
that the services made available be appropriate for public safety entities in those areas. In
particular, as discussed below, we require as a mandatory provision of the NSA that the D Block
licensee and Public Safety Broadband Licensee negotiate inclusion into the build-out schedule
coverage of major highways and interstates, as well as incorporated communities with a
population in excess of 3,000, as suggested by APCO, IACP and IAFC.942 In addition, to the
936
Given these measures, the stringency of our population-based requirements, and the requirement we impose
elsewhere that the build-out schedule established in the NSA may not satisfy the initial benchmarks exclusively
through build-out of high population areas, we do not impose any additional requirements with regard to build-out in
Alaska specifically.
937
As discussed elsewhere, we adopt that the D Block license term must not exceed 10 years from February 17,
2009.
938
See 700 MHz Report and Order, 22 FCC Rcd at 8095 ¶ 82.
939
See Mid-Size ILECs 700 MHz Further Notice Comments at 5 n.3.
940
Such interference protection will be provided through compliance with the provisions of Section 27.60 of the
Commission’s rules. 47 C.F.R. § 27.60. Furthermore, certain B Block licensees will continue to be authorized to
operate in the 762-764 and 792-794 MHz bands, which overlap portions of the 758-763 and 788-793 MHz D blocks.
The D Block licensee will therefore be required to provide appropriate co-channel protection to those B Block
licensees by limiting its base station field strength signal levels to no greater than 40 dBu at the B Block licensees’
geographic borders.
941
See NENA 700 MHz Further Notice Comments at 3.
942
APCO, IACP and IAFC 700 MHz Further Notice Ex Parte (filed July 13, 2007).
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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.
441. The three population-based construction benchmarks that we adopt for the D
Block licensee are clear, provide specific deadlines and quantifiable levels of service and, as a
result, will provide the D Block licensee with regulatory certainty regarding the applicable
construction requirements. We agree with those commenters who stress that the build-out
requirements for the D Block licensee must be stringent and unambiguous.943 The requirements
that we are adopting are more stringent than those that we are imposing on other 700 MHz
commercial licensees and are consistent with our goal of developing a nationwide broadband
public safety network. In addition, use of population-based benchmarks is consistent with public
safety comments, and ultimately the national interoperable broadband public safety network will
be built to serve the public safety needs of over 99 percent of the population.944
442. Moreover, by adopting interim benchmarks, we ensure that the D Block licensee
is in a position to begin providing service to the Public Safety Broadband Licensee well in
advance of the end of its license term. We also provide sufficient time for new advanced
technologies to develop and be placed in service by the D Block licensee by setting the first
benchmark at four years. These benchmarks for the D Block licensee balance the need to
quickly develop the public safety communication system with the need to allow sufficient time
for new and innovative wireless broadband technologies to develop. Our benchmarks, therefore,
are consistent with our goal of establishing a national interoperable public safety network that
will provide state-of-the-art service to the Public Safety Broadband Licensee.
443. In certain limited circumstances, we will permit the D Block licensee to modify
these population-based construction benchmarks where the D Block licensee and the Public
Safety Broadband Licensee reach agreement and the full Commission gives its prior approval for
a modification. This approach will allow a certain limited degree of flexibility to meet
commercial and public safety needs where those needs may deviate from our adopted
construction benchmarks. As with other commercial 700 MHz Band licensees, the D Block
licensee will be required to demonstrate compliance with our 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 they have met our
performance requirements.945 The construction notification, including the coverage maps and
supporting documents, must be truthful and accurate and not omit material information that is
943
See APCO 700 MHz Further Notice Comments at 18; Cyren Call 700 MHz Further Notice Comments at 20;
Embarq 700 MHz Further Notice Comments at 5; Northrop Grumman 700 MHz Further Notice Comments at 5;
NPSTC 700 MHz Further Notice Comments at 12; RCC 700 MHz Further Notice Comments at 60; TIA 700 MHz
Further Notice Comments at 4; Union 700 MHz Further Notice Comments at 16.
944
See, e.g., APCO 700 MHz Further Notice Comments at 18; Embarq 700 MHz Further Notice Comments at 5;
MetroPCS 700 MHz Further Notice Comments at 64; NENA 700 MHz Further Notice Comments at 4; NPSTC 700
MHz Further Notice Comments at 12; RCC 700 MHz Further Notice Comments at 60; California 700 MHz Further
Notice Reply Comments at 4.
945
See 47 C.F.R. § 1.946(d) (“The notification must be filed with Commission within 15 days of the expiration of
the applicable construction or coverage period.”).
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necessary for the Commission to make a determination of compliance with our performance
requirements.946 However, unlike the other commercial licenses and because of the nature of the
partnership established herein, the D Block licensee will not be subject to a "keep-what-you-use"
rule. Rather, the Commission will strictly enforce these build-out requirements and, if the D
Block licensee fails to meet a construction benchmark, the Commission may cancel its license,
depending on the circumstances.947
d.
Network Sharing Agreement (NSA) and Mandatory Provisions
444. Background. Commenters responding to our request for comment on the
Frontline proposal agree that the details of any public/private partnership should be set forth in a
network sharing agreement, but they disagree on the extent to which these details should also be
specified in our rules as opposed to being left to negotiation.
445. In its comments, Frontline argues that the Commission should establish a
“regulatory framework” that leaves most details, including the rates that the commercial licensee
could charge, to be worked out in negotiation, and it argues that its proposed rules provide a
framework with an appropriate level of specificity.948 Other commenters argue that the Frontline
proposal is not sufficiently specific, either because it leaves public safety vulnerable to an
agreement with unreasonable terms or rates or because it fails to give sufficient notice to bidders
of their prospective obligations as the commercial licensee.949 Commenters also present varied
suggestions for the elements that the parties should be required to address in a network sharing
agreement.950 At the same time, some commenters also agree with Frontline that the rules should
not be too specific.951
446. Discussion. We establish that the relationship between the Public Safety
Broadband Licensee and the D Block licensee will be governed by the Network Sharing
Agreement (NSA) to be negotiated by the parties and such other separate agreements as the
Commission may require or allow, and we provide that compliance with the terms of the NSA
shall be a regulatory condition of the D Block license. Breach of this licensing condition may, at
the determination of the Commission, result in remedies including, but not limited to,
946
See, e.g., 47 C.F. R. §1.17 (Truthful and accurate statements to the Commission); 47 C.F.R. § 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.”).
947
Below we discuss conditions, requirements, and procedures that are intended to prevent or address breaches of
obligations by the D Block licensee under either the Commission’s rules or the NSA.
948
See Frontline Mar. 26 Ex Parte in WT Docket Nos. 06-150 and 06-169 and PS Docket No. 06-229, at 6-8.
949
See, e.g., Alltel 700 MHz Further Notice Comments at 6-7.
950
See, e.g., AT&T 700 MHz Further Notice Comments at 13 (to give bidders greater clarity, adoption of Frontline
proposal should include “specification of the primary terms and conditions that would have to be part of a Network
Service Agreement . . . as well as penalties or sanctions to be imposed for failure to meet these terms and
conditions.”); Cyren Call 700 MHz Further Notice Comments at 22 (listing 17 elements to be included in NSA).
951
See Cyren Call 700 MHz Further Notice Comments at n.22 (overly specific rules would “require potentially
costly and time-consuming waiver requests should the parties agree to an arrangement that is not contemplated
expressly in the FCC’s regulations.”).
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cancellation and subsequent award of the license.952 Elsewhere in this Second Report and Order,
we also establish certain specific rules to govern the process for cancellation and re-awarding of
the D Block license to ensure that there is no discontinuation of service to public safety entities.
We also identify elsewhere the potential remedies should the Public Safety Broadband Licensee
fail in a substantial way to meet its obligations under the NSA or any of the Commission’s rules
or requirements under this Second Report and Order.
447. We require all the parties to negotiate in good faith,953 and we find that many of
the details of their agreement are appropriately left to them to negotiate and reach agreement on
(subject to ultimate Commission approval of the NSA). In the discussion that follows, however,
we identify certain elements that we require the parties to address in the NSA. Primarily, we
require the parties to incorporate the rights and responsibilities governing the Public/Private
Partnership that we have enumerated and discussed in this Second Report and Order. We also
require the NSA to include or address certain additional terms and subjects, however. These
terms and subjects, together with the rules that we have detailed elsewhere, will ensure that the
Public/Private Partnership serves the public interest. In addition, it will help potential bidders on
the D Block license in understanding their obligations prior to auction, and will assist the parties
in reaching agreement on the NSA.
448. Rights and Obligations Under the Public/Private Partnership. The NSA must
incorporate all of the substantive rights and obligations of the parties that we have established in
this Second Report and Order that are relevant to the Public/Private Partnership. Thus, for
example, the NSA must incorporate the mandatory network specifications we have established
elsewhere in this Second Report and Order, including the technical specifications, terms, and
conditions that will ensure that public safety users are provided priority access to public safety
broadband spectrum on a dynamic, real-time basis. Once the NSA is approved by the
Commission and executed by the parties,954 assuming all other licensing requirements are met,
the Commission will grant the D Block license to the winning bidder and compliance with the
terms and conditions of the NSA will be license conditions for both the D Block license and the
Public Safety Broadband License.955 As discussed elsewhere, we require the parties to submit an
executed NSA within 10 business days of the Commission’s approval of the agreement, and we
provide that the D Block license will not be granted until such submission.
449. Term of Agreement. The NSA must have a term not to exceed 10 years from
February 17, 2009, which coincides with the term of the D Block license established elsewhere
in this Second Report and Order. At the conclusion of the initial, and subsequent, term of the
agreement, the NSA may be renewed along with the D Block license, subject to Commission
952
See also 47 C.F.R. §§ 1.903(b) (“The holding of an authorization does not create any rights beyond the terms,
conditions and period specified in the authorization.”), 1.945(e) (“The FCC may grant applications . . .subject to
conditions other than those normally applied to authorizations of the same type.”).
953
As discussed elsewhere, the Public Safety Broadband Licensee has the responsibility to negotiate an NSA with
the winning bidder on the D Block license for broadband service in the 700 MHz public safety broadband spectrum.
954
All of the parties, including the winning bidder of the D Block license, the bankruptcy-remote entity to be the D
Block licensee, the Network Assets Holder, and the Operating Company, must execute the NSA.
955
Except as specified herein, current rules and remedies under the Commission’s general rules regarding violation
of license terms and conditions would continue to apply.
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approval. We find it appropriate to ensure that consideration of whether to renew the D Block
license and whether to renew or modify the NSA whose performance is a condition of that
license should occur at the same time.
450. Service Fees. We find that all service fees for public safety service should be
specified in the NSA, including any applicable fees for normal network service and fees for
priority access to the D Block in an emergency.956 We find that the parties should be left to
negotiate reasonable rates in good faith, taking into account all appropriate factors, including but
not limited to the public/private nature of the partnership. We expect, however, that the parties
will 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. We also encourage the
parties to negotiate a fee agreement that incorporates financial incentives for the commercial
licensee based on the number of public safety entities and localities that subscribe to the service.
451. We note that, for the negotiation of reasonable rates, typical commercial rates for
analogous services may be useful as a guide.957 We believe, however, that the negotiated rates
will in fact be lower than typical commercial rates for analogous services. One of the anticipated
benefits that has persuaded us to establish a D Block license is that only a small portion, if any,
of the initial construction costs will be recovered through public safety charges.958 Further, we
expect that fees will be such that public safety entities are able to afford the services that they
require for their public safety functions.
452. We emphasize that the entity winning the D Block license is accepting a critical
public responsibility, providing 700 MHz broadband network service to the nation’s local and
state public safety entities.959 Therefore, when negotiating fees, we expect that the D Block
licensee will provide public safety with the terms that will best serve the public interest goals
established in this Second Report and Order regarding the public/private partnership. Further,
we have established various remedies available to resolve disputes over NSA terms, and that, if
necessary, we can exercise one of these options to ensure that fees charged are reasonable.
453. Detailed Build-Out Schedule. The NSA must include a detailed build-out
schedule that is consistent with the mandatory national build-out and performance benchmarks
that we have established for the D Block licensee elsewhere in this Second Report and Order.
We expect the NSA to identify the specific areas of the country that will be built out by each of
the construction deadlines that we have established. While commercial providers typically focus
on population centers first, the needs of first responders are also important in less populous areas.
956
Frontline 700 MHz Public Safety Ninth Notice Comments at 27-28.
957
Frontline 700 MHz Further Notice Comments at 46.
958
For example, Frontline’s original proposal emphasized that its network service fees on the Public Safety
Broadband Licensee for managing, operating, and upgrading the network “would be much lower than the public
safety spectrum usage fee under the 700 MHz Public Safety Ninth Notice’s proposal because, under [Frontline’s
proposal,] public safety would not be funding the up-front costs of constructing the nationwide infrastructure….”
Frontline 700 MHz Public Safety Ninth Notice Comments at 27.
959
See NPSTC 700 MHz Further Notice Reply Comments at 6 (“The E Block licensee should view its obligations to
the public safety network as a trust responsibility that the Commission will oversee and enforce.”).
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Because we must ensure that smaller towns and rural areas are not neglected in the D Block
licensee’s build-out efforts, we require the D Block licensee to meet our initial population
benchmarks by not exclusively concentrating on building out high population areas. In this
regard, we agree with public safety commenters to the extent that we require the parties to
include in the NSA 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 D Block licensee jointly
determine, in consultation with a relevant community, that such additional coverage will not
provide significant public benefit. We also require an estimated cost for each specified area of
the build-out, which will assist us in efforts to ensure that the build-out schedule is achieved.
454. Modifications to the NSA. We obligate the parties to act in good faith in all
dealings with each other and to abide by the terms of the agreement. The NSA must specify that
any major modifications to the terms of the NSA, related agreements or documents, or such other
agreements as the Commission may require or allow, require not only the agreement of the
parties, but also prior Commission approval. All other modifications require prior approval by
the Chiefs of the Wireless Bureau and the Public Safety and Homeland Security Bureau on
delegated authority.
e.
License Term and Renewal Expectancy for the Public/Private
Partnership
455. Background. In the 700 MHz Report and Order, we adopted a 10 year license
term for initial authorization in the 700 MHz Commercial Service Band, subject to a subsequent
renewal expectancy of 10 years.960 In the 700 MHz Further Notice, we noted that Frontline
proposed that the term of the D Block license would be for 15 years, and would be subject to a
renewal expectancy upon the completion of “substantial service.”961 Frontline contends that
given the aggressive build-out requirements for the license and the size of the investments
required, a substantial license term is appropriate, particularly since a shorter license term could
substantially deter auction participation.962
456. In response to the 700 MHz Further Notice, NENA comments that it would
support a 10-year license term, coinciding with the substantial completion of the proposed buildout requirements.963 NENA also argues that the licensee’s success in meeting its build-out
requirements should be a substantial factor in any decision to renew the national D Block
license.964 Regarding the renewal criteria, Cyren Call suggests that, as part of the Commission’s
new renewal procedures for the D Block license, the Commission solicit the viewpoints of the
Public Safety Broadband Licensee and Public Safety network users.965 Cyren Call argues that
960
700 MHz Report and Order, 22 FCC Rcd at 8092-94 ¶¶ 73-77, 8095-96 ¶¶ 82-84.
961
700 MHz Further Notice, 22 FCC Rcd at 8162-63 ¶ 275.
962
See Frontline Mar. 6 Comments in WT Docket No. 06-150 at 19.
963
NENA 700 MHz Further Notice Comments at 4.
964
Id.
965
Cyren Call 700 MHz Further Notice Comments at 17 (citing 700 MHz Report and Order, 22 FCC Rcd at 809294 ¶¶ 73-79).
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doing so would provide an additional source of motivation for the commercial operator to take
steps beyond those required for mere minimum satisfaction of its contractual obligation.966
457. Discussion. Consistent with the decision made for other commercial licensees in
the 700 MHz Report and Order, we decide that a term not to exceed 10 years from February 17,
2009, should be used for initial authorization in the D Block license. The D Block license would
be auctioned as a single, nationwide license to provide for commercial service in the “D Block,”
and to build and operate a joint broadband public safety and commercial network for public
safety use. Considering the specific build-out requirements adopted for this license, we find that
a 10-year license term is appropriate to secure the long-term financial commitment and the
reliable public safety services. It will provide regulatory parity by establishing the same license
term for the all 700 MHz licensees, and we find that Frontline has provided no persuasive reason
to grant the D Block licensee a term 5 years longer than other commercial licensees. In
particular, we do not believe that the 10 year term will have a significantly different impact on
bidding than a 15 year term.
458. At the end of the 10 year term, the D Block licensee will be allowed to apply for
license renewal, although its renewal will be subject to its success in meeting the material
requirements set forth in the NSA as well as all other license conditions, including meeting the
performance benchmark requirements. Because the initial NSA term will expire at the same
time, the D Block licensee must also file a renewed or modified NSA for Commission approval
at the time of its license renewal application. Given these detailed license renewal requirements,
we decline to impose a separate substantial service showing. Considering the public safety
community’s concern over the success of the D Block license, we believe that the Commission’s
new renewal procedure for this band should motivate the commercial operator to provide service
to public safety users at a level and quality beyond the minimum necessary to satisfy its
obligations under the NSA.967
459. The material requirements set forth in the NSA, as discussed elsewhere, are
conditions of the D Block license, including the network build-out schedule and satisfaction of
the agreed-upon public safety specifications regarding the network construction and operations,
in order to obtain a renewal of the license. Regarding the D Block license renewal application,
we find the material requirements in the NSA to be those requirements that are the “essence” of
the agreement between the parties, including but not limited to the build-out schedule for the
public safety network and other provisions that serve the fundamental purpose of the NSA, as
well as any time limits on the performance of those provisions.
f.
Public Safety Satellite Support
460. Background. In the 700 MHz Public Safety Ninth Notice, we stated that
“[s]urvivability is an important objective of the envisioned nationwide public safety broadband
system.”968 We further observed that a network could be made “inherently robust by
incorporating flexible routing and other features (possibly including a satellite component
966
Id.
967
Id.
968
700 MHz Public Safety Ninth Notice, 21 FCC Rcd at 14843 ¶ 17.
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operating in other spectrum) that will maintain essential operations when parts of the
infrastructure have been destroyed or disabled.”969 We tentatively found that these
considerations argued in favor of establishing a single national public safety broadband licensee.
“[A] single national licensee may be in a better position to ensure robustness and survivability,”
the Commission stated, in part because it could be “well-situated to contract for national satellite
service and benefit from economies of scale in integrating satellite capability into its radios to the
extent that such integration is beneficial.”970
461. In its filings on which we sought comment, Frontline also briefly discussed the
potential of satellite communications to enhance the coverage or robustness of a network.
Frontline asserted that the commercial licensee and the public safety broadband licensee “could
also work with Mobile Satellite Service licensees to provide satellite coverage to cover gaps in
rural areas in the terrestrial 700 MHz public safety broadband network.”971 Frontline proposed no
obligations for the commercial licensee with regard to satellite support, however, except that,
after the fourth year of build-out (by which time, Frontline proposed, coverage would be
provided to all Alaskan cities of 10,000 or more), the commercial licensee would “work with the
Alaska Land Mobile Project to determine where additional coverage [in Alaska] is needed and
feasible, taking various factors into account including the availability of satellite services.”972
462. In the 700 MHz Further Notice, we sought comment on whether, if the Frontline
proposal were adopted, some or all public safety equipment operating on the commercial
licensee’s network, including handsets and other mobile or fixed receivers, should be required to
be capable of accessing satellite communications, and whether the Commission should require
the commercial licensee to incorporate satellite-based technology into its network
infrastructure.973 Comments filed in response to this inquiry generally favor making satellite
technology available for public safety users. SIA urges the Commission to “(i) make a
reasonable effort to ensure that as many 700 MHz public safety devices as possible have the
capability to access a satellite system; and (ii) facilitate the incorporation of satellite-based
infrastructure into any 700 MHz public safety network as a backup to terrestrial network
infrastructure.”974 A number of commenters supporting the creation of a national public safety
broadband network argue that a satellite overlay is necessary to cover rural and remote areas
effectively.975 MSV proposes that all equipment should be required to have an embedded
969
Id.
970
Id., 21 FCC Rcd at 14844 ¶ 26.
971
See Frontline 700 MHz Public Safety Ninth Notice Comments at 31 n.55.
972
Frontline Mar. 26 Ex Parte in WT Docket No. 06-150 and 06-169 and PS Docket No. 06-229, at 8.
973
See 700 MHz Further Notice, 22 FCC Rcd at 8165 ¶ 280.
974
SIA Comments in WT Docket No. 06-169, PS Docket No. 06-229, WT Docket No. 96-86, at 2, 7, 13
(suggesting that by incorporating satellite services into the network infrastructure, public safety would have access
to ubiquitous, advanced broadband communications capability, capable of providing a robust back-up system in case
of terrestrial network failure); see also MSV 700 MHz Further Notice Comments at 7 (advocating that the
Commission “require all terminals on the 700 MHz public safety broadband network to have the capability of
providing mobile service by satellite by 2010”).
975
See, e.g., Fire Fighters Idaho 700 MHz Further Notice Comments at 2; Fire Fighters Montana 700 MHz Further
Notice Comments at 2; Fire Fighters Oregon 700 MHz Further Notice Comments at 2; Fire Fighters Mass. 700 MHz
(continued….)
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chipset, making it possible to access satellite systems.976 MSV’s proposal receives conditional
support from APCO, which suggests that the Public Safety Broadband Licensee could explore
the viability of imposing such a requirement.977 Iridium urges the Commission to “require
satellite back-up for public safety applications” without mandating a specific technology.978
Iridium further advocates that the Commission “should allow public safety to select from the
broadest range of technology to suit their needs” by encouraging the “use of seamlessly
integrated technology in both the terrestrial 700 MHz public safety spectrum as well as one or
more bands in which satellite systems operate.”979 Some public safety organizations, however,
emphasize the need for public safety to have access to commercial off-the-shelf equipment,
rather than imposing specific equipment mandates, and advocate flexibility in infrastructure
requirements to facilitate cost-effective build-out of a national, interoperable network for public
safety users in a Public/Private Partnership.980
463. Discussion. We agree with commenters that satellite service can be a valuable
component of a public safety communications network. Satellite technology can provide the
only means of communicating where terrestrial communications networks have been damaged or
destroyed by wide-scale natural or man-made disasters. As the Katrina Report found, “[s]atellite
networks appeared to be the communications services least disrupted by Hurricane Katrina.
[B]oth fixed and mobile satellite systems provided a functional, alternative communications path
for those in the storm-ravaged region.”981 In this regard, satellite service providers Iridium and
MSV both reported substantial increases in the use of their services in and around New Orleans
in the wake of Hurricane Katrina.982 Satellite services also can enable public safety users to
communicate in rural and remote areas that terrestrial services do not reach.983 For example,
even under the aggressive performance requirements we impose herein on the D Block licensee,
(Continued from previous page)
Further Notice Comments at 2; Police Chiefs Mass. 700 MHz Further Notice Comments, at 2 (all stating that a
satellite overlay is necessary); but see Verizon Wireless 700 MHz Further Notice Comments at 33, n. 76 (noting
that satellite service already is present in 90 percent of all U.S. zip codes, citing High-Speed Services for Internet
Access: Status as of June 30, 2006, Industry Analysis and Technology Division, Wireline Competition Bureau, at 23 (Jan. 2007) available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-270128A1.pdf)).
976
MSV 700 MHz Further Notice Comments at 7.
977
APCO 700 MHz Further Notice Reply Comments at 6.
978
Letter from Gregg L. Elias, Counsel to Iridium, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 06-150
(filed July 2, 2007) (Iridium Ex Parte Letter).
979
Letter from Gregg L. Elias, Counsel to Iridium, to Marlene H. Dortch, Secretary, FCC, PS Docket No. 06-229,
WT Docket No. 96-86 (filed July 24, 2007) (Iridium July 24 Ex Parte Letter).
980
See, e.g., Missouri Highway Patrol 700 MHz Further Notice Comments at 9, at 25, 35 (deployment can be less
expensive by using COTS and existing network infrastructure where possible); see also NATOA 700 MHz Further
Notice Comments at 14 (when specifying the security and network interface requirements for equipment operating
in an open access environment it will be important to consult public safety and to ensure that no particular
manufacturer is inadvertently favored).
981
Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, Report and
Recommendations to the Federal Communications Commission at 10-11; see also id. at 24 (“satellite infrastructure
was generally unaffected by the storm and could have provided a viable back-up system.”).
982
See Iridium Ex Parte Letter at 13; MSV 700 MHz Further Notice Comments at 5-6.
983
See APCO 700 MHz Further Notice Reply Comment at 6; SIA 700 MHz Further Notice Comments at 4-5.
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there will remain a number of geographic areas without coverage for a number of years. As a
result, the availability of satellite-based communications capabilities would serve to bolster the
availability, robustness, and survivability of public safety communications networks, particularly
in circumstances of the direst nature where the safety and security of Americans are greatly at
stake. For these reasons, we believe that it is appropriate for us to strongly encourage and
facilitate the incorporation of satellite-based communications capability into public safety
networks. At the same time, we must ensure that any action we take in this regard does not
unduly burden either public safety users or the D Block licensee.
464. Accordingly, we require that the D Block licensee make available to public safety
users at least one handset that includes a seamlessly integrated satellite solution. We do not
require that this handset use any specific technology, only that it be capable of operating both on
the 700 MHz public safety spectrum and on the satellite frequency bands and/or systems of the
satellite service providers with which the Public Safety Broadband Licensee has contracted for
satellite service. We do not, however, require that the D Block licensee incorporate support for
satellite communications into the infrastructure of the shared terrestrial network.
465. The record indicates that handsets with seamlessly integrated satellite solutions
are already under development by some equipment vendors, and that the incremental cost of
incorporating satellite capability into terrestrial handsets may be relatively small.984 We find that
this obligation will provide incentives for competitive development of handsets with various
types of seamlessly integrated satellite capabilities, and potentially lead to affordable equipment
and service costs for the public safety community. In addition, we expect that the D Block
licensee may find that some consumer segments would find value in handsets with satellite
capability. Public safety users, meanwhile, will be able to realize the advantages of satellitecapable handsets if they choose, but would be under no obligation to purchase them.
466. We expect that the D Block licensee, satellite companies, and handset
manufacturers will take steps to facilitate the development of handsets with seamlessly integrated
satellite solutions. Nevertheless, we understand that handsets offering an integrated satellite
solution are not yet available, and that the development will take time. It would also be
counterproductive for the D Block licensee to offer a handset with an integrated satellite solution
that is incompatible with the satellite solutions ultimately adopted by the Public Safety
Broadband Licensee. For these reasons, we do not establish an immediate obligation upon the D
Block licensee to make satellite-capable handsets available. Rather, we will require the D Block
licensee to begin offering at least one handset suitable for public safety use that includes a
seamlessly integrated satellite solution pursuant to the terms, conditions, and timeframes set forth
in the NSA. We believe that requiring the parties to address, as part of the NSA, how and by
what date the D Block licensee will offer a handset with a seamlessly integrated satellite solution
is reasonable and may encourage speedier development of such handsets for public safety use.
467. In addition to requiring the D Block licensee to offer at least one handset with a
seamlessly integrated satellite technology, we strongly encourage the Public Safety Broadband
Licensee to work with its constituent public safety entities throughout the country to facilitate the
availability of a variety of satellite-based options. Such options could include the Public Safety
984
See MSV 700 MHz Further Notice Comments at 6.
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Broadband Licensee using its relatively stronger market power to negotiate large-scale satellite
service agreements with existing providers, working with the D Block licensee to negotiate for
satellite service to expand or expedite build-out to rural areas, and exploring use of a multitude
of existing and future technologies, including satellite-capable handsets, separate satellite-only
handsets, mobile satellite base stations that can be deployed into areas where terrestrial facilities
are damaged or destroyed, etc.
468. We decline to mandate the incorporation of support for satellite communications
by the D Block licensee into the infrastructure of the shared network. Although such
incorporation might provide some additional communications capacity, if the Public Safety
Broadband Licensee contracts for terrestrial use of satellite frequencies, it would also impose
additional costs that might hinder build-out of the terrestrial network. A mandate for specialized
support may interfere with the D Block licensee’s ability to take advantage of commercial offthe-shelf network facilities or rely on existing CMRS architecture, both of which might assist
greatly in making a national build-out cost effective.985 We believe that the D Block licensee and
the Public Safety Broadband Licensee will be in the best position to determine whether and when
satellite support within the terrestrial infrastructure is appropriate, and by what method it should
be implemented, such as by negotiating a side-agreement with existing satellite service providers
to use their excess capacity for public safety communications.
g.
Local Public Safety Build-out and Operation
469. Background. Several commenters on the Frontline proposal recommend that
participation by public safety entities be voluntary, in the sense that public safety entities could
use their own network operating in spectrum other than the 700 MHz public safety broadband
spectrum if they so chose.986 Commenters also recommend, however, that public safety entities
be permitted to build out their own networks in the 700 MHz public safety broadband spectrum
to some extent. Some argue for allowing public safety entities generally to choose other
arrangements in the 700 MHz broadband spectrum either because it would promote competition
among potential commercial partners to provide public safety entities with service at a better
quality and price,987 or because it would provide public safety entities with greater control over
985
See Verizon Wireless 700 MHz Public Safety Ninth Notice Comments at 6-14 (finding that public safety will
receive “significant benefits” from taking advantage of commercial off-the-shelf equipment, and also from sharing
infrastructure with existing CMRS networks); see also High Tech DTV Coalition 700 MHz Public Safety Ninth
Notice Comments at 10-14.
986
See Motorola 700 MHz Further Notice Comments at 30 (“if the Commission adopts Frontline’s plan, public
safety should not be required to use Frontline’s network. While Motorola believes that public safety would likely
choose to use a purpose-build network, like the one proposed by Frontline, public safety should not be precluded
from using devices on other carriers’ networks, an option they already have today, if they so choose.”); Cyren Call
700 MHz Further Notice Reply Comments at 22 (supporting proposal that “[n]o public safety agency or entity will
be required to operate on the network; participation is entirely voluntary based on decisions made by the same
communications officials who decide today how local, statewide and regional communications requirements should
be met”).
987
See Verizon Wireless 700 MHz Further Notice Comments at 45 (asserting that Commission must ensure that any
rights granted to the D Block licensee do not foreclose opportunity for public safety entities to consider other
commercial partnerships, and arguing that competition for emergency communications services will ensure that first
responders get the best price, quality, and capabilities that commercial companies have to offer).
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their own network services, enabling them to take advantage of their expertise and knowledge to
tailor their network services to local needs.988 For example, APCO argues that the Commission
needs to preserve local options to facilitate deployment of data systems in areas where the
national network may not be deployed for many years.989
470. Discussion. We conclude that no public safety entity will be required to use the
700 MHz public safety broadband network, and that any participation in the 700 MHz
nationwide public safety network by individual public safety entities will be entirely voluntary.
We also conclude, however, that the Upper 700 MHz Band D Block licensee should have the
exclusive right to build and operate the shared wireless broadband network using the 700 MHz
public safety broadband spectrum, except that we permit public safety entities to construct local
broadband networks in the 700 MHz public safety spectrum in two limited circumstances subject
to conditions specified below. We further conclude that public safety entities should have a
limited right to build out wideband networks, again with conditions and restrictions.990
471. Rights to Early Build-out in Areas with a Build-out Commitment. First, in an area
where the D Block licensee has, in the NSA, committed to build out by a certain date, but where
a public safety entity wishes a more immediate build-out, the public safety entity may, with the
pre-approval of the Public Safety Broadband Licensee, have the network constructed in that area
at the public safety entity’s own expense. The network must be capable of operating on the
shared, interoperable broadband network that operates on both the D Block licensee’s
commercial block and the public safety 700 MHz broadband spectrum, and must meet all of the
same requirements and specifications as the shared network required under the NSA.
472. We authorize two options for implementing the early build-out of an area of the
broadband network at the discretion of the public safety entity. Under the first option, the public
safety entity (or the Public Safety Broadband Licensee acting on its behalf) may construct the
network in that area. Upon construction, it must transfer the network to the D Block licensee,
which shall integrate that network into the shared national broadband network constructed
pursuant to the NSA. Under the second option, the public safety entity may require the D Block
licensee to construct the network in that area earlier than scheduled, but the public safety entity
must provide all funds necessary for the early construction of the network, including any and all
additional resource and personnel costs. As with the first option, upon construction, the D Block
licensee will operate and manage the network as an integrated part of the larger shared national
broadband network.
473. In either case, the Public Safety Broadband Licensee, the D Block licensee, and
the public safety entity must, prior to any construction, negotiate an amendment to the NSA
regarding this part of the network, specifying ownership rights, fees, and other terms, which may
be distinct from the analogous terms governing the shared national broadband network. Absent
agreement to the contrary, the amendment must provide that by a date no later than the build-out
date specified for that area in the NSA, the D Block licensee will receive full ownership rights
988
See RCC 700 MHz Further Notice Comments at 54-55, 66.
989
APCO 700 MHz Further Notice Comments at 20-22.
990
We address the specific case of public safety entities that wish to build out networks with wideband operations,
as opposed to broadband operations, elsewhere in this Second Report and Order.
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and will in turn compensate the public safety entity (or the Public Safety Broadband Licensee,
where appropriate) for the construction of the network. The right to compensation for the buildout shall be limited, again absent agreement to the contrary, to the cost that would have been
incurred had the D Block licensee constructed the network itself in accordance with the original
terms and specifications of the NSA. Thus, while the public safety entity may construct a more
expensive network, the D Block licensee will only be responsible for the costs of a network
comparable to what it would have constructed in accordance with the original terms of the NSA,
and any costs attributable solely to advancing the date of construction will not be compensable.
474. We point out that early build-out in this scenario is a right to construct only.
Operations may not commence on the network until the network is transferred to the D Block
licensee. Operations on early build-out networks would then be conducted under the authority of
the Public Safety Broadband Licensee’s license, in the same manner as any network operations
that occur following construction by the D Block licensee under the build-out schedule contained
in the NSA.
475. Starting on the date of compensation for build-out, or on the build-out due date of
the NSA if there is no specified date of compensation, the D Block licensee may include the
early build-out for purposes of determining whether it has met its national build-out benchmarks
and the build-out requirements of the NSA.991
476. We note that the National Capital Region (NCR) has commenced construction
and operation of a broadband network in the 700 MHz Band pursuant to an experimental license
and has been granted a waiver in anticipation of its application for a license to operate such
system.992 The NCR consists of eighteen jurisdictions: The District of Columbia, Montgomery
and Prince Georges Counties of Maryland, and the cities of Gaithersburg, Rockville, Takoma
Park, Bowie, College Park, and Greenbelt; Arlington, Fairfax, Loudon and Prince William
Counties of Virginia, and the cities of Alexandria, Falls Church, Town of Leesburg, Manassas,
and Manassas Park.993 Although NCR cannot now obtain a license, as such license will be held
by the Public Safety Broadband Licensee, nothing herein should be construed as preventing or
limiting NCR's ability to continue to operate the broadband network they have built within the
700 MHz broadband allocation (subject to NCR properly obtaining a grant of a request for
Special Temporary Authority for such continued operation) until such time as the NCR network
is integrated into the nationwide, interoperable broadband network in accordance with the buildout plan set forth in the NSA.
477. NCR, in requesting the waiver to operate its broadband network, 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 [sic]
991
Parties are thus free to provide that the ownership of the network will remain with the constructing public safety
entity, in which case, the D Block licensee will owe no compensation for the build-out costs to that entity, and the
network will not be counted toward the D Block licensee’s build-out requirements until the build-out date specified
for that area in the Network Sharing Agreement.
992
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).
993
See The National Capital Planning Act of 1952, 40 U.S.C. § 71.
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making and may have to do one of the following to continue the use of the 700 MHz spectrum
for public safety broadband wireless communications: 1. Modify its proposed network. For
example, we may have to change the center frequency of the carriers and the filters to protect
narrowband operations; or 2. Change the proposed network. For example, we may have to
change the underlying technology, and therefore, have to change the equipment to use a standard
that is different from that chosen by the NCR (1xEVDO Rev A); or 3. Transition to a 700 MHz
public safety national broadband wireless network that is managed by a single national
licensee.”994 In fact, the waiver grant to NCR was explicitly conditioned on those
representations, which are incorporated into the NCR Waiver Order as part of the conditions of
the waiver.
478. We advise the Public Safety Broadband Licensee to consult NCR in negotiating
the build-out date for the nationwide, interoperable network, as the build-out plan in the NSA
should allow NCR a reasonable time to make any modifications necessary to incorporate its
network into the nationwide, interoperable broadband network by the date set forth in the NSA
for build out of the portion of the nationwide, interoperable broadband network in the NCR.
NCR will, of course, be expected to comply with the requirements set forth herein for public
safety entities exercising the right to early build out, and NCR shall be entitled to the same rights
and compensation as set forth herein for public safety entities electing to exercise their right to
early build out.
479. The Spectrum Coalition would have us give local public safety entities, including
NCR, the ability to “opt-out” of the national, interoperable broadband network, yet operate
individual systems in the 700 MHz Band. We flatly reject such argument; local public safety
entities do not have to participate in the nationwide network, but they may not “opt-out” in favor
of using the 700 MHz broadband spectrum for individual networks. As a general matter, as we
have discussed above, there are numerous benefits to having a single Public Safety Broadband
Licensee.995
480. Rights to Build Out and Operate In Areas without a Build-out Commitment. We
acknowledge that, even under the stringent population-based build-out requirements that we are
adopting, there will be areas of the nation in which the NSA does not require the D Block
licensee to build out the shared broadband network. In such areas, under the policies and
procedures discussed below, we provide that a public safety entity may build out and operate a
separate, exclusive network in the 700 MHz public safety broadband spectrum at any time,
provided the public safety entity has received the approval of the Public Safety Broadband
Licensee and operates its independent network pursuant to a spectrum leasing arrangement into
which the public safety entity has entered with the Public Safety Broadband Licensee.
481. Under this option, the public safety entity need not obtain any agreement with the
D Block licensee. The Public Safety Broadband Licensee must, however, provide the D Block
994
NCR Waiver Order at 1849 ¶ 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).
995
Specific to NCR, we reject such argument as inconsistent with the explicit representations they made in obtaining
a waiver and the very waiver conditions themselves.
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licensee with notice of the public safety entity’s intent to construct in that area within 30 days of
receipt of a request from a public safety entity wishing to exercise this option, and shall inform
the D Block licensee of the public safety entity’s anticipated build-out date(s). This affords the
D Block licensee the opportunity, in conjunction with the Public Safety Broadband Licensee, to
reconsider whether the NSA should be revised to include a commitment to build out the area that
the public safety entity has identified. Further, if within 30 days of receiving such notice the D
Block licensee certifies in writing to the Public Safety Broadband Licensee that it will build out
the shared network in the area, within a reasonable time of the anticipated build-out date(s), as
determined by the Public Safety Broadband Licensee, then the public safety entity shall not have
the option of building out and operating its own separate exclusive network in the area. Under
this circumstance, the D Block licensee, working with the Public Safety Broadband Licensee,
must then adopt an appropriate amendment to the NSA, and such commitment would become
enforceable against the D Block licensee as part of its build-out requirements. We note also that,
as an alternative in such cases, the public safety entity would be able to complete early build-out
under the procedures we discuss above.
482. If the public safety entity pursues this option to build out a separate network, the
Public Safety Broadband Licensee and public safety entity, as its spectrum lessee, must file a
spectrum leasing arrangement with the Commission prior to the public safety entity commencing
any operations. We will require that the spectrum leasing arrangement take the form of a
spectrum manager leasing arrangement under the Commission’s spectrum leasing rules.996 We
will not permit such arrangements to take the form of long-term de facto transfer spectrum
leasing arrangements. We believe that it is necessary that the Public Safety Broadband Licensee
retain not only de jure control of all of the spectrum associated with the Public Safety Broadband
License, even in areas not scheduled for build-out, but also de facto control of the spectrum
leased for use by public safety entities. As described elsewhere, the Public Safety Broadband
Licensee has a number of important responsibilities related to the entire public safety
community’s use of the 700 MHz broadband spectrum. In order to carry out these
responsibilities with respect to this early build-out option, the Public Safety Broadband Licensee
must exercise actual oversight of its spectrum lessee’s activities, including maintaining actual
working knowledge about the spectrum lessee’s activities and facilities that could affect
compliance with applicable Commission rules.997 Early build-out even in areas without a buildout commitment can impact adjacent or nearby build-out of the shared network by the D Block
licensee. Accordingly, we find it essential that, as provided under the spectrum manager leasing
rules and as distinguished from the long-term de facto transfer leasing arrangement, the Public
Safety Broadband Licensee maintain actual oversight and working knowledge of its spectrum
lessees’ activities in order to ensure compliance with all requirements of the Communications
Act, the Commission’s rules, and the obligations set forth in this Second Report and Order.998
996
47 C.F.R. § 1.9020.
997
See 47 C.F.R. § 1.9010 (standard for retaining de facto control under a spectrum leasing arrangement).
998
See 47 C.F.R. §§ 1.9010-1.9030 (distinguishing between the licensee’s responsibilities with regard to its
spectrum lessee depending on whether they have entered into a spectrum manager leasing arrangement or, instead, a
de facto transfer spectrum leasing arrangement).
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483. In addition to compliance with the Commission’s spectrum leasing requirements,
the public safety spectrum lessee must ensure that the following conditions are met: (1) the
network must provide broadband operations; (2) the network must be fully interoperable with the
shared national broadband network required by the NSA; (3) the network must be available for
use by any public safety agency in the area; and (4) the network must satisfy any other terms or
conditions required by the Public Safety Broadband Licensee. These conditions specifically
must be included in the spectrum manager lease agreement entered between the Public Safety
Broadband Licensee and the public safety entity. Consistent with Section 90.551 of the
Commission’s rules, which contains the general 700 MHz public safety spectrum construction
requirements, the lease agreement between the parties must specify that the public safety entity
must construct and place into operation its network within one year of the effective date of the
spectrum manager leasing arrangement,999 and if not, then the Public Safety Broadband Licensee
will terminate the spectrum leasing arrangement pursuant to the Commission’s rules.1000 The
separate network need not, however, meet the other specifications of the D Block licensee’s
shared national network. In particular, absent agreement of the public safety entity, the Public
Safety Broadband Licensee, and the D Block licensee, the separate network may not operate
using any spectrum associated with the D Block license. Finally, as required by the
Commission’s spectrum leasing rules, the Public Safety Broadband Licensee must notify the
Commission of the spectrum manager leasing arrangement as part of the Commission’s spectrum
manager lease notification procedures.1001 The notice must identify the public safety entity
leasing the spectrum and the particular areas of spectrum leased as part of this build-out option.
484. We emphasize that under no conditions may a public safety entity construct a
network using 700 MHz public safety broadband spectrum in an area absent the approval of the
Public Safety Broadband Licensee. We find that permitting individual public safety entities to
construct their own networks using this spectrum without such approval would lead to the same
balkanization problems of existing public safety spectrum use that we seek to avoid here, and
would be contrary to the Commission’s determination that the public safety broadband spectrum
shall be a single nationwide license subject to the authority of the Public Safety Broadband
Licensee. Use of the public safety broadband spectrum without a spectrum lease from the Public
Safety Broadband Licensee approved by the Commission would also be inconsistent with
Section 310 of the Act, which requires Commission authorization for the use of licensed
spectrum.1002 Nothing in this determination should be construed, however, to prohibit the Public
Safety Broadband Licensee from being responsive to requests from localities to opt out and
provide separate network services pursuant to a spectrum lease approved by the Public Safety
Broadband Licensee and the Commission.
485. Conditions for Waiver to Allow Limited and Temporary Wideband Operations. In
the 700 MHz Further Notice, we asked for comment on our tentative conclusion to prohibit
wideband operations on a going forward basis, and deferred consideration of adopting a
999
The public safety entity may seek extended implementation authority from the Commission pursuant to the
requirements of Section 90.629. 47 C.F.R. § 90.629.
1000
47 C.F.R. § 1.9020(h)(3) (permitting licensee to terminate the spectrum leasing arrangement).
1001
47 C.F.R. § 1.9020(e).
1002
47 U.S.C. § 310.
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wideband interoperability standard.1003 The record contains comments in support of and in
opposition to allowing wideband operations.
486. In general, those supporting a wideband option argue that broadband operations
are not needed everywhere,1004 result in significant additional costs,1005 and would take too long
to build out.1006 Some commenters disagree with the Commission’s tentative conclusion that
allowing wideband could hinder interoperability.1007 Some commenters believe that we should
take a “flexible” approach to permitting wideband operations, such as leaving the decision on
whether to deploy a wideband system up to local/regional planners rather than establishing a
regulatory mandate requiring use of broadband systems.1008 Hampton Roads states that it is
important for public safety disciplines “to have the flexibility to choose and deploy the best
communication solutions based on the jurisdictions’ specific needs as they relate to technologies,
geographic challenges and increasing financial constraints.”1009 Region 33 (Ohio) contends that
everything it has planned for in the future can be accomplished with wideband communications
(150 kHz channels), and that a broadband requirement would be a disservice to Ohio and its
citizens.1010 NATOA states that flexibility is critical and that public safety entities must have the
option to choose the technology (wideband or broadband) that best serves their unique
requirements and budgets.1011
487. Several commenters argue that the Commission should allow “mixed use” of
wideband or broadband, but only in the upper 1.25 megahertz of the broadband segment and/or
the guard band (a total of 2.25 megahertz),1012 with the decision whether to implement wideband
in this 2.25 megahertz segment left up to regional planning committees or state/local
1003
700 MHz Further Notice, 22 FCC Rcd at 8156 ¶ 253 & n.521. At the same time, we also stated we would work
with public safety entities to extend previous grants of Special Temporary Authority (STA), to the extent such
public safety entity has constructed, deployed, and is currently operating a wideband system pursuant to STA. Id. at
¶ 250 n.512.
1004
For example, Region 40 states that one size does not fit all when it comes to communications solutions. Region
40 (Texas North) 700 MHz Further Notice Comments at 2.
1005
L-3 700 MHz Further Notice Comments at 4.
1006
APCO, for example, states that even “the most ambitious public safety broadband proposals will leave some
portions of the country unserved for many years, and perhaps indefinitely.” APCO 700 MHz Further Notice
Comments at 6; see also Fort Lauderdale 700 MHz Further Notice Comments at 3; Hawaii 700 MHz Further Notice
Comments at 2; Region 16 (Kansas) 700 MHz Further Notice Comments at 3.
1007
See, e.g., Region 9 (Florida) 700 MHz Further Notice Comments at 2; Tacoma, WA 700 MHz Further Notice
Comments at 2.
1008
See, e.g., Tacoma, WA 700 MHz Further Notice Comments at 2; Motorola 700 MHz Further Notice Comments
at 4-5; Region 16 (Kansas) 700 MHz Further Notice Comments at 2.
1009
Hampton Roads Interop 700 MHz Further Notice Comments at 1; see also Region 40 (Texas North) 700 MHz
Further Notice Comments at 2.
1010
Region 33 (Ohio) 700 MHz Further Notice Comments at 3.
1011
NATOA 700 MHz Further Notice Comments at 6-7; see also California 700 MHz Further Notice Comments at
8, Region 16 (Kansas) 700 MHz Further Notice Comments at 1-3; Region 9 (Florida) 700 MHz Further Notice
Comments at 2.
1012
Under this approach, the lower 3.75 megahertz of the broadband segment would be reserved for broadband only.
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government.1013 NPSTC proposes that wideband use in this segment be given primary status
until 2019 and that such systems could maintain primary status beyond 2019 if the spectrum was
not needed for broadband operations in the area.1014 Under the NPSTC approach, wideband or
local broadband systems also could operate on a secondary basis under certain conditions.1015
488. Other commenters support prohibiting wideband operations.1016 In general, they
argue that permitting a mixed deployment (wideband and broadband) undermines public safety
capabilities. According to commenters opposing wideband operation, broadband provides for
significantly more throughput, greater capacity, and better coverage, whereas wideband is an
outdated, costly technology, the deployment of which would have a negative impact on
interoperability. For example, Qualcomm states that it supports the Commission’s tentative
conclusion to prohibit wideband operations in the broadband segment, contending that to do
otherwise may make it difficult to achieve full interoperability.1017 Alcatel-Lucent argues that
permitting operation of wideband technologies “will only perpetuate the shortcomings of today’s
public safety systems: limited, lower bandwidth applications; high cost of user devices; and
limited interoperability.”1018 Frontline argues that, if the Commission allows wideband
operations, it should only be in the narrowband portion of the spectrum.1019 Cyren Call urges the
Commission to permit both wideband and narrowband operations in the narrowband segment
and suggests that the decision on whether to deploy wideband operations on narrowband general
use channels would be left up to the regional planning committees.1020
489. On balance, we find that the benefits of selecting a band plan that lays the
foundation for the deployment of a nationwide, interoperable broadband network outweigh the
near term and relatively limited potential advantages of allowing wideband systems to disrupt the
national broadband scheme. Based on the record before us, we affirm our tentative conclusion in
the 700 MHz Further Notice that providing wideband flexibility could hinder efforts to deploy a
nationwide, interoperable broadband network by perpetuating a balkanization of public safety
spectrum licenses, networks, and technology deployment.1021 Only through use of broadband
networks can public safety leverage advanced commercial technologies and infrastructure to
reduce costs, speed deployment, and enable the potential for priority access to commercial
1013
See NPSTC 700 MHz Further Notice Comments at 20; see also APCO 700 MHz Further Notice Comments at 67; Region 40 (Texas North) 700 MHz Further Notice Comments at 2-3; San Diego County 700 MHz Further Notice
Comments at 8-9.
1014
NPSTC 700 MHz Further Notice Comments at 20-21.
1015
Id. at 21.
1016
See, e.g., Alcatel-Lucent 700 MHz Further Notice Comments at 13-15; Northrop Grumman 700 MHz Further
Notice Comments at 2-3; Qualcomm 700 MHz Further Notice Comments at 17-31; Alcatel-Lucent 700 MHz
Further Notice Reply Comments at 3-6.
1017
Qualcomm 700 MHz Further Notice Comments at 31.
1018
Alcatel-Lucent 700 MHz Further Notice Comments at i-ii.
1019
Frontline 700 MHz Further Notice Comments at 55.
1020
Cyren Call 700 MHz Further Notice Comments at 24.
1021
700 MHz Further Notice, 22 FCC Rcd at 8156 ¶ 253.
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networks during emergencies.1022 Unfettered deployment of wideband systems in the broadband
allocation will impede nationwide broadband interoperability and continue the balkanization of
the public safety network landscape we seek to prevent. We are convinced that allowing
wideband operations, particularly in the broadband segment intended to be part of a
public/private relationship, could present relocation problems down the road. We, therefore,
prohibit wideband operations in the public safety allocation of the 700 MHz Band, subject to the
limited exceptions set forth herein.
490. Even in light of the advantages and opportunities that can be made available by
broadband technologies, we recognize that some public safety entities may wish to deploy
wideband systems based on specific needs pending deployment of the broadband network. We
conclude, however, that such deployments should be rare and subject to certain criteria.
Accordingly, we will require public safety entities seeking to deploy wideband systems to satisfy
the following conditions and restrictions.1023
491. First, wideband operations in the 700 MHz public safety spectrum will be
permitted only upon grant of a properly supported request for waiver of the requirement to
conform to the band plan we adopt herein, i.e., one that permits only broadband or narrowband
operations.1024 In the interests of ensuring the integrity of the public/private partnership for
construction of a nationwide broadband, interoperable network, we find it necessary to consider
requests to deploy wideband only in a waiver context. In this manner, the Commission will be
able to best consider the particular facts and circumstances of each case, and balance the needs of
the requesting public safety agency with the overarching goals of promoting a nationwide,
interoperable broadband network. Requests for waiver to conduct wideband operations must be
accompanied by an application for authorization.
492. Second, any petition for waiver must be accompanied by a letter from the Public
Safety Broadband Licensee, confirming that the proposed wideband deployment is not
inconsistent with the broadband deployment plan for the affected or adjacent service areas. We
encourage public safety entities seeking such waivers to cooperate with the Public Safety
Broadband Licensee to reach agreement on the conditions, if any, to be placed on any wideband
deployment, including the appropriate plan for transition to the nationwide broadband,
interoperable network.1025 All requests for waiver must include any agreed-upon conditions and
transition plan.
1022
Id.
1023
We direct the PSHSB to grant a public safety entity that has constructed, deployed, and is currently operating a
wideband system pursuant to STA to grant requests to extend the STA grant up until, but not later than, six months
following the selection of the Public Safety Broadband Licensee (such operations to be referred hereafter as
Grandfathered Wideband STA Operations). In this manner, public safety entities operating wideband systems under
such circumstances will be afforded time to plan their spectrum usage to be able to conform to the requirements we
adopt herein. We otherwise direct the PSHSB to deny any pending STA request to commence new wideband
operations. Such applicants may submit new requests for authority to operate wideband systems only in
conformance with the requirements we adopt herein.
1024
See 47 C.F.R. § 1.925; WAIT Radio v. FCC, 418 F.2d 1153, 1158-59 (D.C. Cir. 1969), aff’d, 459 F.2d 1203
(D.C. Cir. 1972).
1025
For example, wideband operations, even if occurring outside the broadband allocation, may conflict with the
broadband deployment, whether due to interference concerns caused by the presence of wideband operations within
(continued….)
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493. Third, except as discussed below, we will restrict grants of waiver to the
deployment of a wideband system in the consolidated narrowband spectrum or the internal
public safety guard band. We must limit any wideband operations in this manner in order to
ensure the full preservation of the broadband segment, and thereby enable the goals of the
public/private partnership for a common broadband network and architecture. Based on the
record before us, we are not convinced that any wideband operations could not be designed to
operate in the narrowband and internal guard band spectrum. We also believe that the regional
planning committees will continue to serve an important role in overseeing and crafting
appropriate spectrum use; to that end, petitions for waiver in the narrowband spectrum must also
include a letter from the appropriate regional planning committee or state licensee confirming
that the proposed wideband deployment will not disrupt any regional or state planning efforts
that are underway. We encourage the Public Safety Broadband Licensee to coordinate with the
applicable regional planning committee or state licensee when these entities are asked to
consider any wideband deployment in the narrowband portion of the public safety spectrum, to
ensure proper coordination with existing and pending narrowband applications.
494. If there are instances where spectrum in the narrowband segment or internal guard
band is unavailable for wideband operations, we will permit submission of request for waiver to
operate in the upper 1.25 megahertz of the broadband allocation. We emphasize, however, that
applicants seeking waiver relief to deploy wideband networks in the public safety broadband
spectrum face a very high hurdle. As a threshold requirement, we will consider requests for
waiver to conduct wideband operations in the broadband allocation only upon submission of a
substantially supported, detailed technical showing demonstrating why there is insufficient
spectrum in the narrowband allocation or internal guard band to support the desired wideband
operations. As with requests to conduct wideband operations in the narrowband segment or
internal guard band, any request for waiver to conduct wideband operations in the upper 1.25
megahertz of the broadband allocation must be accompanied by a letter from the Public Safety
Broadband Licensee confirming that the proposed wideband deployment is not inconsistent with
the broadband deployment plan for the affected or adjacent service areas, and all requests for
waiver must reflect any conditions and transition plan agreed upon by the petitioner and the
Public Safety Broadband Licensee. The public safety entity seeking to establish wideband
operations in the broadband segment must have first issued a request for proposal (RFP) that
permitted interested parties to submit broadband proposals that are technically consistent with
the Public Safety Broadband Licensee network. Finally, the wideband applicant must include
with its waiver request proof that responses to the RFP proposing a broadband network were
more costly, provided less coverage as measured by throughput at the network edge, or were
otherwise inferior to the accepted wideband proposal.
495. Notwithstanding anything herein to the contrary, we will not entertain any request
for waiver seeking to permit wideband operations in the broadband segment in areas scheduled
for broadband deployment within the first three years of the build-out plan for the national public
safety broadband network. We believe that it would be unduly and unnecessarily disruptive to
the national public safety broadband network to permit wideband deployment where the
(Continued from previous page)
the public safety band, or because the Public Safety Broadband Licensee determines that because of the broadband
deployment, either the guard band must be cleared of any wideband operations, or the narrowband channels need to
be used solely to satisfy narrowband needs.
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broadband network would be constructed at the same time or shortly thereafter. Particularly in
light of the extensive benefits afforded by broadband technology, it would be wasteful of limited
resources and contrary to principles of sound spectrum management to permit deployment of
wideband technology in areas scheduled to receive broadband service. In addition, consistent
with the waiver discussion herein, the Commission will not grant any waiver request for any
wideband deployment in the broadband segment that does not include a detailed plan,
accompanied by attestation, specifying how and by what date the wideband applicant will
integrate its proposed wideband system into the national broadband network. The Commission
shall condition any waiver relief for wideband operations in the broadband segment upon
acceptance of the applicant’s integration plan. As a further condition of any wideband
operations proposed in the broadband segment, we will require all devices operating on the
wideband system to be designed such that they also must be interoperable with the nationwide,
broadband network.1026 In order to ensure that our goals for the deployment of the nationwide
broadband network are met, the authority granted for any wideband operations in the broadband
segment will expire automatically upon the D Block licensee’s initiation of service in areas
where wideband has been deployed. Further, any Grandfathered Wideband STA operations or
wideband authority granted by waiver in the public safety segment of the 700 MHz Band shall be
secondary to primary narrowband or broadband applications, as applicable. Finally, as a
condition of the grant of waiver allowing deployment of a wideband system in the broadband
segment, a public safety entity must certify in its application and waiver request its
acknowledgement that it may not seek reimbursement for any costs involved in converting the
wideband system to the national broadband network upon completion of the broadband network
in the subject area.
496. License terms for wideband operations granted under waiver – whether they are in
the narrowband, internal guard band, or broadband segments of the 700 MHz public safety
spectrum – will be limited to no more than five years, and may be granted for less time
depending on the particular circumstances presented. The Commission must receive requests for
renewal of the license granted pursuant to waiver request not less than 180 days prior to
expiration of the license. Renewal requests must include a showing that continued operation of
the wideband system is in the public interest. Renewal requests for wideband operations in the
broadband segment also must be accompanied by a letter from the Public Safety Broadband
Licensee confirming that continuing wideband operations are not inconsistent with the
broadband deployment plan for the affected or adjacent service areas. The license term for any
renewal of waiver will not exceed three years and a wideband waiver licensee may only receive a
single extension. Any renewal of a wideband authorization shall continue to be on a secondary
basis only to primary narrowband or broadband applications, as applicable. Finally, in light of
the waiver process we describe above, we find it unnecessary to adopt any particular wideband
interoperability standard.
1026
Motorola 700 MHz Further Notice Comments at 20-21.
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Safeguards Relating to the Public/Private Partnership
a.
Rules for Establishment, Execution and Application of the
NSA
497. Background. In the 700 MHz Further Notice, we tentatively concluded that, in
the event the Frontline proposal was adopted, we would need to impose conditions to deal with
the circumstance where the winning bidder of the commercial license and the “national public
safety licensee” are unable to reach agreement on a network sharing agreement.1027 We
specifically proposed requiring the winning bidder and the national public safety licensee to
enter into binding arbitration in the event that they cannot resolve outstanding issues.1028 We
further tentatively concluded that, to provide incentives to reach an agreement, we would not
grant a license to the winning bidder of the commercial license at auction until after it filed a
network sharing agreement with the Commission, and received approval.1029
498. We also sought comment on several other issues and possible conditions,
including whether (1) we should adopt a requirement that the parties report to the Commission
on the status of the negotiations, (2) other conditions should be adopted that “ensure that an
agreement is reached quickly and in a manner that is satisfactory to public safety,” (3) we should
adopt other options to provide additional oversight, (4) we should require an agreement by a
certain date, and (5) in the absence of an arbitration option, whether the Commission should be
authorized to appoint board members to the governance of the D Block licensee.1030
499. Commenters on this subject generally support requiring good faith
negotiations,1031 ongoing Commission oversight,1032 waiting to grant the commercial license until
the network sharing agreement is filed,1033 and placing a deadline on the negotiation of that
agreement.1034 Commenters also argue that, regardless of the remedies adopted, the Commission
should assume an active role in oversight through reporting requirements and dispute resolution
processes to ensure that the interests of public safety are adequately protected.1035
1027
See 700 MHz Further Notice, 22 FCC Rcd at 8165 ¶ 282.
1028
See id.
1029
See id.
1030
See id., 22 FCC Rcd at 8165 ¶ 283.
1031
See NPSTC 700 MHz Further Notice Comments at 12.
1032
See Cyren Call 700 MHz Further Notice Comments at 15 (Commission should “engage in an ongoing review
process as the [NSA] is being developed by the parties and [] require status reports on a regular basis . . . .”).
1033
See APCO 700 MHz Further Notice Comments at 15; Cyren Call 700 MHz Further Notice Comments at 14-15;
Fire Fighters Virginia 700 MHz Further Notice Comments at 2; Fire Fighters Oregon 700 MHz Further Notice
Comments at 1; NPSTC 700 MHz Further Notice Comments at 10.
1034
See APCO 700 MHz Further Notice Comments at 15.
1035
See Cyren Call 700 MHz Further Notice Comments at 10-12, 17 (recommending that, “[a]t a minimum, the rules
should require an annual report from the parties, one that provides status updates on key Network Sharing
Agreement elements and, more generally, keeps the FCC apprised of the ‘State of the Network.’”); NPSTC 700
MHz Further Notice Comments at 12.
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500. Commenters are divided on the issue of whether the Commission should resolve
negotiation disputes through mandatory binding arbitration. While some commenters support an
arbitration if it were done by the Commission,1036 a number of public safety commenters strongly
oppose any mandatory arbitration, whether private or by the Commission.1037 They argue that
mandatory dispute resolution would take control of public safety spectrum out of the hands of
the national public safety licensee and would force the public safety community nationwide into
a long-term partnership with an entity over whose selection they would have no control and who
would be chosen solely by competitive bidding.1038 They insist that the only appropriate remedy
in the event the parties are unable to negotiate an agreement would be to auction a new license
for the commercial spectrum.1039
501. Discussion. Based on the record, we specifically condition the D Block license
on the following requirements to ensure the establishment and execution of the NSA in a timely
manner while safeguarding the public interest.
502. Approval of NSA as Pre-Condition for Granting the D Block license. Because the
terms of the NSA are critical to the success of the partnership, the D Block license will not be
issued until the Commission has approved the NSA and following such approval, the parties
execute the NSA and file an executed copy with the Commission. As several public safety
commenters recognize, this condition for granting the license will ensure that the winning bidder
for the D Block license has appropriate incentives to reach an agreement on the NSA in good
faith and cannot stall the negotiations to avoid its obligations to public safety.1040
1036
See Frontline 700 MHz Further Notice Comments at 44.
1037
See APCO 700 MHz Further Notice Comments at 16; NPSTC 700 MHz Further Notice Comments at 10-11
(opposing third-party arbitration); Cyren Call 700 MHz Further Notice Reply Comments at 15; but see NPSTC 700
MHz Further Notice Comments at 11-12 (“While still problematic, submitting disputes to the Commission . . . may
be a viable option . . . .”).
1038
See APCO 700 MHz Further Notice Comments at 16 (“We strongly oppose [binding arbitration] as it would also
take control of the [public safety] spectrum out of the hands of the public safety licensee . . . . While [resolution by
the Commission is] preferable to binding arbitration by a third party, this approach could still force public safety into
a long term partnership with an entity that fails to understand public safety needs and obtained its license merely by
being the highest bidder.”); NPSTC 700 MHz Further Notice Comments at 10-11. See also California 700 MHz
Further Notice Comments at 5-6 (supporting Frontline proposal if it is established by a “mutually agreeable” NSA).
1039
See APCO 700 MHz Further Notice Comments at 17 (re-auctioning “avoids the problem of a forced partnership.
. . . The key to success is to ensure that public safety, not a commercial auction, decides the fate of public safety
spectrum.”); Cyren Call 700 MHz Further Notice Comments at 15 (national public safety licensee should “not be
forced to accept as its long-term partner . . . an entity determined exclusively by the size of its entity’s auction bid”
and if there are intractable disputes, “the National Licensee should be permitted to terminate the negotiation process
and, at its discretion, consider partnership arrangements with other commercial 700 MHz licensees with authority to
permit them secondary access to Public Safety’s broadband spectrum.”); NPSTC 700 MHz Further Notice
Comments at 11 (“The only appropriate solution . . . is to re-auction the spectrum, . . . the only remedy that
preserves public safety control over public safety spectrum.”).
1040
See APCO 700 MHz Further Notice Comments at 15-16; Cyren Call 700 MHz Further Notice Reply Comments
at 14 (also suggesting requiring a showing of financial bona fides before using a license). In one of its more recent
filings, Frontline opposes this measure, arguing that it would be “an open invitation for losing bidders, incumbents
and other competitors to poison the negotiations and even the dispute resolution process, in an effort to force an
impasse . . . .” Frontline July 24, 2007 Ex Parte at 1. Given that such parties will not be participating in the
negotiations, however, we think that the risk that they could “poison” the negotiations is minimal. Further, we note
(continued….)
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503. We recognize that the D Block licensee will be subject to an aggressive build-out
schedule, and an applicant for the license may wish to commence certain initial construction
activities prior to the grant of an authorization. We do not prohibit the winning bidder of the D
Block license from engaging in network build-out during the NSA negotiation period and prior
to grant of the license, but to ensure that such build-out does not frustrate the interests of public
safety or preempt the negotiations regarding the appropriate build-out schedule, we require that
any such build-out occur only with the approval of the Public Safety Broadband Licensee.
Similar to service rules for other spectrum licenses,1041 such construction is conducted at the sole
risk of the applicant, is subject to the Commission’s authority to provide notification to stop such
build-out, and cannot result in commercial operation unless and until the Commission has
granted the D Block license.
504. Timeframe for Negotiation. We also establish a deadline for the parties to reach
agreement on the terms of the NSA to ensure that the Public/Private Partnership implementation
is not indefinitely delayed. Specifically, we require the parties to commence negotiations on the
terms of the NSA on the date that the winning bidder of the D Block license files its long form
application1042 or the date on which the Commission designates the Public Safety Broadband
Licensee, whichever is later, and we further require the parties to conclude negotiations not later
than six months after the commencement date. As soon as the parties have reached an agreement
on all the terms of the NSA, but not later than five days after the six month period for negotiation
has expired, they must submit for Commission approval the NSA together with all agreements
and other documents referred to in the NSA, including the agreement reached on the broadband
technology standard. The Commission will act on the NSA within 60 days of receipt. If the
parties have not reached agreement on all terms of the NSA by the end of the six-month period,
they must notify the Commission not later than five days after the expiration of the six-month
period of the terms agreed upon, the nature of the remaining issues and each party’s position on
each issue (whether in the form of final best offers, or a characterization of the parties jointly on
the positions of the parties and reason for impasse), whether additional negotiation is likely to
produce an agreement, and, if so, a proposed deadline for completing the agreement.
505. Requirement of Good Faith. We require the parties to negotiate in good faith the
specific terms of the NSA pursuant to the conditions, requirements, and guidance established in
this Second Report and Order. We also require the parties to act in good faith in the performance
of the NSA. To provide additional assurance that negotiations are proceeding in good faith, and
except as explicitly set forth herein, the Commission will oversee the negotiation of the NSA,
and will play an active role in the resolution of any disputes among the relevant parties
(including the winning bidder for the D Block; the D Block licensee; the Operating Company;
the Network Assets Holder; and the Public Safety Broadband Licensee), both resulting from the
negotiations and once the parties are operating under the terms of the NSA.
(Continued from previous page)
that Frontline itself, in its original comments, supports this very condition when combined with binding dispute
resolution, arguing that it “incentivizes the E Block licensee to reach a mutually beneficial agreement with the NPSL
in a timely manner.” Frontline 700 MHz Further Notice Comments at 44. As stated elsewhere, the Commission
will retain the option of engaging in binding dispute resolution in the event negotiations are unsuccessful.
1041
47 C.F.R. § 22.143.
1042
See 47 C.F.R. §§ 1.2107-1.2109.
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506. Progress Reports During Negotiations. The winning bidder for the D Block
license shall file an initial report within 10 days of the commencement of the negotiations 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. We require that two
members of the Commission’s staff, one from the Wireless Bureau, and one from the Public
Safety and Homeland Security Bureau, be present at all stages of the negotiation of the NSA as
neutral observers. We do not intend, however that the staff act as arbitrators. Disputes must still
come to the Commission for resolution. Beginning three months from the triggering of the sixmonth negotiation period, the winning bidder for the 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 should include descriptions of all material issues that the
parties have yet to resolve. The monthly reports will enable us to identify any areas of
significant disagreement between the winning bidder for the D Block license and the Public
Safety Broadband Licensee. The Commission also reserves the right to require the parties to
meet with Commission staff to discuss their negotiations or reports at any time during the
negotiation process.
507. These reporting requirements, together with the authority we reserve to observe
negotiations, will ensure that the Commission’s participation is not limited to dispute resolution.
We intend to actively monitor and, if required, participate in the negotiation process. Such
involvement may help to avoid intractable disputes and to produce an agreement consistent with
the rules we are establishing and the goals of the proceeding in a timely manner. This process
may also help to determine whether parties are likely to reach an agreement prior to, but not later
than the end of the negotiation period. If the Commission determines that parties are unlikely to
reach an agreement or they violate certain obligations (e.g., good faith negotiation obligations),
the Commission (or the Bureaus) may take, on its own motion, actions pertaining to dispute
resolution before the NSA approval, described elsewhere in this Second Report and Order,
without waiting for the six-month negotiation period to fully elapse.
508. Resolution of Negotiation Disputes. Either upon notice of a dispute at the end of
the six-month negotiation period, or on their own motion at any time, if the Chiefs of PSHSB
and WTB determine that negotiations have reached a likely impasse, we delegate authority to the
Chiefs of PSHSB and WTB to take certain actions jointly in the public interest to adjudicate the
dispute.1043 As appropriate, these actions may include but are not limited to one or more of the
following: (1) granting additional time for negotiation; (2) issuing a decision on the disputed
issues and requiring the submission of a draft agreement consistent with their decision; (3)
directing the parties to further brief the remaining issues in full for immediate Commission
decision; and/or (4) immediate denial of the long-form application filed by the winning bidder
for the D Block license. Remedies shall not, however, include ordering private third-party
arbitration. In the event that the long-form application filed by the winning bidder for the D
Block license is denied, the winning bidder for the D Block license will be deemed to have
defaulted under Section 1.2109(c) of the Commission’s rules, it will be liable for the default
1043
47 U.S.C. § 155(c)(1).
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payment set forth in § 1.2104(g),1044 and the full Commission, at its discretion, shall decide
whether to offer a new license for the spectrum to existing or new applicants, offer a new license
to the other highest bidders (in descending order) at their final bids, or choose any other process
within the Commission’s statutory authority to reassign the license, in light of the public interest
goals served by the Public/Private Partnership.1045
509. Our approach to adjudicating disputes during the NSA negotiations responds to
the concerns of public safety commenters, including APCO, NPSTC, and Cyren Call, who have
argued the only remedy the Commission should apply in the event of negotiation failure is to
conduct a new auction for a new license for the spectrum.1046 We note that, while public safety
commenters have generally opposed a requirement of mandatory private third-party arbitration,
they also concede that having the Commission adjudicate their disputes rather than a private
party would address some of their concerns on this issue,1047 and other commenters fully support
adjudication of disputes by the Commission.1048 We agree that it would be inappropriate to have
issues regarding the use of public safety spectrum resolved by a private party and preclude that
option as a remedy. We find, however, that we should not at this time preclude the option of
disputes being adjudicated by the Commission. Rather, providing the Commission with
discretion to choose from a range of remedies will enable the Commission to choose the most
appropriate option in the context of the specific concerns raised by the parties. When the
specific disputes are presented, the Commission will be in a better position to determine whether
the goals of the 700 MHz Public/Private Partnership and the interests of public safety and the
public will be best served by conducting a new auction for a new license for the D Block
spectrum, or whether adjudication of disputes or another remedy is the best course.
510. Licensing Rules and Procedures Applicable to the D Block license. Except as
provided herein, the Commission’s competitive bidding rules applicable to other commercial
licenses in the 700 MHz Bands will apply to the winning bidder for the Public/ Private
Partnership License, including the practices and procedures listed in Part 1 of our rules.1049 For
example, the down payment requirement, the obligation of the winning bidder for the D Block
license to file a “long form” license application, and the consequences of a default prior to grant
of the license will be in accordance with Sections 1.2104, 1.2105, 1.2106, 1.2107, and 1.2109 of
the Commission’s rules.
511. If the long form application is denied, the procedures under Section 1.2109 of the
Commission’s rules will generally apply. We note that we may complete review of the long
form application and deny the application without regard to the NSA, if the application is
deficient or the grant of the license would otherwise be inconsistent with the Commission’s
rules. We further clarify that if the winning bidder for the D Block license fails to comply with
1044
See 47 C.F.R. § 1.2104(g).
1045
See, e.g., 47 C.F.R. § 1.2109.
1046
APCO 700 MHz Further Notice Comments at 17; Cyren Call 700 MHz Further Notice Comments at 15; NPSTC
700 MHz Further Notice Comments at 11.
1047
See, e.g., NPSTC 700 MHz Further Notice Comments at 11-12.
1048
See, e.g., Frontline 700 MHz Further Notice Reply Comments at 13.
1049
See, e.g., 47 C.F.R. §§ 1.2104 et seq.
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the procedures we establish for negotiation or dispute resolution, fails to receive final
Commission approval of an NSA, or fails to execute an approved NSA, (a) it shall be
disqualified from holding the D Block license, (b) the license application will be denied, and (c)
it will be deemed to have defaulted and will be subject to all payments and obligations under
Section 1.2109 of our rules.1050
512. Process for Final Approval. The Commission will review and approve the NSA.
To facilitate our review, we may seek input from the parties, or invite public comment on the
proposed NSA, subject to redactions to protect a legitimate need for confidentiality. After
conducting our review, we may approve the NSA in its entirety, approve it with modifications, or
require the parties to address additional terms or re-draft existing terms within a specified
timeframe. Following approval with or without modifications, the parties shall execute the NSA
and submit a copy of the executed NSA to the Commission within 10 days of approval.
b.
Ongoing Conditions for the Protection of Public Safety Service
513. Background. In its proposal, Frontline asserted that, if its proposed commercial
block licensee encounters financial or other problems that prevent compliance with its
obligations, the Commission may reclaim and re-auction the spectrum.1051 Accordingly, it
argued, there is no need for service rules to address this issue in some special fashion.1052
514. In the 700 MHz Further Notice, we sought comment on whether other measures
should be adopted to address what actions the Commission might or must take in the event that
the commercial licensee fails to comply with its obligations.1053 In particular, we asked whether
(1) there should be a special process for public safety entities or others to challenge the
commercial licensee’s compliance with its obligations; (2) the license should cancel
automatically based on failure to comply with specified obligations; (3) the Commission should
establish an unjust enrichment requirement to be paid in the event the Commission is unable to
reclaim the license after a failure by the commercial licensee to meet its obligations; (4) in the
event the Commission does reclaim the license, it should hold any network infrastructure built by
the licensee in trust for public safety to avoid interruption of service to first responders; and (5)
the Commission should provide a rebate of a portion of the net bid amount paid by the
commercial licensee at auction upon satisfaction of the conditions of the license.1054
515. Commenters agree that the rules need to protect against any disruption to public
network operations or default on build-out obligations or license cancellation.1055 Commenters
1050
See 47 C.F.R. § 1.2109.
1051
Frontline 700 MHz Further Notice Comments at 9.
1052
Frontline 700 MHz Further Notice Comments at 9.
1053
See 700 MHz Further Notice, 22 FCC Rcd at 8167 ¶ 289.
1054
Id.
1055
APCO 700 MHz Further Notice Comments at 20; Frontline 700 MHz Further Notice Comments at 47 (the rules
should protect against any disruption of public safety use of the network); Cyren Call 700 MHz Further Notice
Comments at 18; GEOCommand 700 MHz Further Notice Comments at 13; MetroPCS 700 MHz Further Notice
Comments at 65; California 700 MHz Further Notice Reply Comments at 6. See also Arcadian 700 MHz Further
Notice Comments at 5. Similarly, public safety users would be stranded if the E Block licensee failed to meet its
construction benchmarks.”); CTIA 700 MHz Further Notice Comments at 22 (asserting that failure of the enterprise
(continued….)
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also offer a number of proposals to address these problems. To prevent the interruption of
service to public safety users, several commenters propose that the Commission should simply
establish an applicable rule similar to Section 214 of the Act and prohibit the commercial
licensee from discontinuing operations to public safety without Commission approval.1056
Verizon Wireless argues that, although a Section 214-like rule can provide for an orderly
discontinuation of service, such a rule cannot, as a practical matter, require a failing business to
continue to operate by regulatory fiat.1057
516. Several commenters recommend some form of financial security from the
Public/Private Partnership Licensee, such as a performance bond or letter of credit, to be drawn
on in the case of financial or regulatory difficulties.1058 Commenters also emphasize the
importance of continued monitoring by the Commission of the development and operations of
the network. For example, Cyren Call proposes that we require annual reports that provide status
updates on all key NSA elements to keep the Commission apprised on the state of the
network.1059 Others recommend that, in the event that the commercial licensee is non-compliant
with the NSA, the infrastructure of the network should be held in trust for public safety to avoid
interruption of services.1060 Commenters also propose that the Commission establish an
expedited process for addressing and resolving claims that the commercial licensee has not
complied with its obligations.1061
517. Discussion. We conclude that several measures are necessary to address the
possibility that problems will arise in the implementation of the NSA or the operation of the
common network. We are concerned that such problems, whether financial or otherwise, may
threaten the build-out of the public safety network or the continued provision of network services
to public safety users. We are also concerned that the D Block licensee or a related entity might,
in financial difficulty, draw the D Block license or the network assets, respectively, into a
bankruptcy proceeding and attempt to place both the operations of the network and its underlying
assets outside of the control of either public safety or the Commission. To address these
concerns, while maintaining necessary incentives for investment and preserving commercial
viability, we establish a number of inter-related requirements.1062
(Continued from previous page)
would result in significant lost opportunity costs and uncertainty for the deployment and operations of the public
safety broadband network).
1056
See APCO 700 MHz Further Notice Comments at 20; Frontline 700 MHz Further Notice Comments at 47;
NPSTC 700 MHz Further Notice Comments at 14; Cyren Call 700 MHz Further Notice Reply Comments at 20.
1057
See Verizon Wireless 700 MHz Further Notice Comments at 27.
1058
See APCO 700 MHz Further Notice Comments at 20; Cyren Call 700 MHz Further Notice Comments at 18-20;
NPSTC 700 MHz Further Notice Comments at 15.
1059
See Cyren Call 700 MHz Further Notice Comments at 17.
1060
See GEOCommand 700 MHz Further Notice Comments at 13.
1061
See GEOCommand 700 MHz Further Notice Comments at 12-13 (public safety entities should have a special
ability to challenge the commercial licensee to ensure compliance on a fast track).
1062
We decline to require the D Block licensee to post a financial security to ensure performance of its obligations.
We are concerned that the burden of obtaining such a security could deter qualified entities from bidding on the D
Block license and believe that a D Block licensee’s financial resources are better used for actual construction and
(continued….)
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518. Requirements Relating to Organization and Structure of the Public/Private
Partnership. To support continued construction and operation of the shared wireless broadband
network by reducing the risk that the D Block license or the network assets will be drawn into a
bankruptcy proceeding, we require the winning bidder for the D Block license to form separate
special purpose entities,1063 which will be bankruptcy remote,1064 to hold the D Block license and
the network assets, respectively. We also require the winning bidder of the D Block licensee to
form another vehicle that will also be a bankruptcy remote, special purpose entity (Operating
Company). The D Block licensee will lease the spectrum rights associated with the D Block
license to the Operating Company pursuant to the Commission’s spectrum leasing rules. The
spectrum leasing arrangement will be for the entire term of the D Block license and will be
renewable, provided that the Commission renews the underlying D Block license. These license
transactions will occur following the granting of the D Block license and should follow existing
Commission procedures applicable to such transactions. The Operating Company will also be
leased secondary use rights associated with the primary license held by the Public Safety
Broadband Licensee.1065 To ensure that these requirements have been met, the D Block auction
winner shall submit the proposed organizational structure to the Commission and demonstrate to
the Commission’s satisfaction that each of the constituent entities is appropriately bankruptcy
remote. Finally, it shall be a condition of the D Block license and the Public Safety Broadband
License that all special purpose entities and any leasing or other commercial agreements created
to implement the public/private partnership will be subject to the Communications Act of 1934,
as amended, and the Commission’s rules and regulations, and the parties to the NSA shall
acknowledge such regulatory authority in a form acceptable to the Commission.
519. The D Block licensee and other entities authorized and required in this Second
Report and Order or the NSA will have the obligation to build out the nationwide, shared
interoperable broadband network operating on the spectrum associated with the D Block license
and the Public Safety Broadband License.
520. In connection with establishing the bankruptcy remote special purpose entities
required hereunder, the Commission requires the issuance of one or more legal opinion letters, at
the cost of the winning bidder of the D Block license, from bankruptcy counsel chosen by the
winning bidder of the D Block license and acceptable to the Commission, and such other parties
as the Commission may designate, that clearly states, subject only to customary assumptions,
limitations and qualifications that none of the winning bidder, the Operating Company, or any
party to the NSA or other related agreements will be substantively consolidated with any entity.
(Continued from previous page)
operation costs. Cf. Cyren Call 700 MHz Further Notice Comments at 19 & n.20 (finding that “[m]easures such as
obtaining performance bond arrangements are likely not to be available at a reasonable cost . . . .”).
1063
A “special purpose entity” is a legal entity created for a special limited purpose, in this context primarily to hold
the D Block license or the network assets, or to conduct the operation.
1064
A special purpose entity is “bankruptcy remote” if that entity is unlikely to become insolvent as a result of its
own activities, is adequately insulated from the consequences of a related party’s insolvency, and contains certain
characteristics which enhance the likelihood that it will not become the subject of an insolvency proceeding.
1065
We note that if we cancel the D Block license this spectrum lease arrangement will also be terminated.
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The scope of this opinion letter shall also cover such other opinions as the Commission may
request.1066
521. Prohibition on Discontinuance of Public Safety Operations. We prohibit the D
Block licensee from discontinuing or degrading the broadband network service provided to the
Public Safety Broadband Licensee or to public safety entities unless either at the request of the
entity or entities in question or it has first obtained the approval of the Commission.1067 Further,
the D Block licensee must notify the affected public safety entity or entities and the Public Safety
Broadband Licensee at least 30 days prior to any unrequested discontinuance or degradation of
network service.
522. We recognize that such a prohibition cannot by itself prevent discontinuance of a
financially ailing business operation indefinitely. We anticipate, however, that in the event of
significant problems, it will ensure the continuance of public safety operations in the short term
until longer terms measures have been adopted to address the underlying problems.
523. Failure to Comply with the NSA or the Commission’s Rules. We establish rules
to address how the Commission will remedy failures by either the D Block licensee or the Public
Safety Broadband Licensee to comply with the NSA or our rules. First, with regard to the D
Block licensee, as we have stated elsewhere, we have conditioned the D Block license on
compliance with the NSA. Failure to comply with the Commission’s rules or the terms of the
NSA may warrant cancelling the D Block license, depending on the circumstances, and awarding
it to a new licensee. In particular, the full Commission will decide whether to cancel and
reassign the D Block license in the event that the D Block licensee either cannot or will not fulfill
the critical responsibilities that are being given to it. Accordingly, we provide for a process by
which cancellation will occur without threatening network services to public safety entities.
524. In the event that the Commission determines that the D Block license must be
cancelled consistent with the Act and the requirements herein, an order shall be issued cancelling
the license and announcing the process for awarding rights to the spectrum to a new licensee.
However, pending the award to a new licensee, the Operating Company will be issued a special
temporary authority (STA) to continue to provide both commercial and public safety service in
the Public/Private Partnership spectrum. We find that issuance of an STA in this circumstance
will serve the public interest, convenience, and necessity by enabling uninterrupted, seamless
1066
The opinion letter must contain detailed legal analysis of the basis of counsel’s opinion. A draft opinion letter
must be submitted for review and approval by the Commission’s Office of General Counsel prior to issuance of the
opinion. Bankruptcy counsel and, if applicable, counsel’s firm, must have a Martindale-Hubbell rating of “A/V”
and must satisfy the Commission in all other respects.
1067
GEOCommand recommends that we address the threat of discontinuance by establishing a right to place the
network assets in a government trust in the event of financial difficulty or non-compliance. See GEOCommand 700
MHz Further Notice Comments at 13. We decline to establish such a rule, however, because we have serious
concerns regarding both the legal validity of such a rule, its effectiveness in the event of bankruptcy filing (and the
possible incentives created by such a rule for the D Block licensee to seek protection in bankruptcy), and its impact
on the investment incentives that will be necessary to generate the capital to build the network. We find that the
measures we have adopted, and the active oversight of the Commission, should be sufficient to ensure that public
safety services will not be discontinued.
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service to public safety entities as well as commercial users, pending the grant of a new
license.1068
525. To further ensure that services to public safety are not threatened by cancellation
or otherwise, the NSA shall require, in a separate agreement, the granting of (a) an irrevocable
and assignable right of first refusal if the network and network assets are otherwise to be sold;
and (b) an irrevocable and assignable option in favor of the Public Safety Broadband Licensee to
acquire the network and all network assets if and whenever the D Block license is cancelled or
terminated, by reason of default or for any other reason, for a consideration equivalent to the fair
market value (FMV) of the tangible and intangible assets sold. This option shall be senior to,
and have priority over, any other right, claim, or interest in or to the network or the network
assets. An event of default includes any default of the D Block licensee of a material obligation
under the NSA, as determined by the Commission. Valuation will be performed pursuant to a
FMV methodology to be agreed upon by the parties and set forth in the NSA. Valuation shall be
performed immediately following the occurrence of a triggering event and completed within a
reasonable time thereafter. The NSA must further provide that, in the event that the D Block
license is awarded to a new entity, the Public Safety Broadband Licensee’s right to purchase the
network assets shall be reassigned to the new D Block licensee. Thereafter, the Public Safety
Broadband Licensee’s right to purchase shall be extinguished unless and until a new triggering
event described above occurs, as the primary purpose of the right, to enable a smooth transition
in the event of a default, would be achieved, and because maintaining the right might adversely
impact the incentive of the new D Block licensee to invest in its network.
526. We provide that, in the event that the D Block license is cancelled, the
Commission may choose any process within the Commission’s statutory authority to reassign the
license, in light of the public interest goals served by the Public/Private Partnership. Upon grant
of a new license, the Commission, or the Bureaus acting on delegated authority, shall, in
coordination with the former licensee and the new licensee, as well as the Public Safety
Broadband Licensee, establish the terms and timing under which the temporary authorization
shall be cancelled and the new D Block licensee assume the construction and operation of the
network.1069 This decision shall take into account, among other factors, any exercise by the new
licensee of its right to purchase the network assets.
527. With regard to the Public Safety Broadband Licensee, in the event that the Public
Safety Broadband Licensee fails to adhere to the terms of the NSA, or comply with the
Commission’s rules or any requirements contained in this Second Report and Order, to an extent
1068
Under established standards, an STA is appropriate when the proposed action will serve the public interest,
convenience and necessity. See Accounting Safeguards Under the Telecommunications Act of 1996, Order, 16
FCC Rcd 17969, 17970, ¶ 3 (2001); Application of GTE Corporation and Bell Atlantic Corporation for Consent to
Transfer Control of Domestic and International Sections 214 and 310 Authorizations and Application to Transfer
Control of a Submarine Cable Landing License, Order, 16 FCC Rcd 15957, 15958, ¶ 3 (2001) (addressing standard
for granting STAs); see also 47 U.S.C. §§ 154(i), 214(a), 303(r), 308(a).
1069
As with the original license, a new license shall not be granted until an NSA is approved and executed by the
parties. We authorize the Bureaus to adopt a process for establishing an NSA that differs from the process
applicable to the establishment of the original NSA, to the extent that such difference will serve the goals of the
Public/Private Partnership. For example, the Bureaus may require that the new licensee must accept the terms of the
original NSA for its remaining term.
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giving rise to license cancellation, we delegate authority to the Chiefs, PSHSB and WTB jointly
to determine an appropriate remedy. The potential remedies include, but are not limited to,
cancelling the license, assigning the license to another entity, directing the Public Safety
Broadband Licensee to transfer the assignable option to purchase the assets at fair market value,
ordering specific performance, or ordering removal and replacement of individual officers,
directors or member organizations of the Public Safety Broadband Licensee. The potential
remedies would be consistent with the unique role and responsibilities of the Public Safety
Broadband Licensee and the importance of minimizing any disruptions to public safety
broadband operations in the 700 MHz Band.
528. Resolution of Disputes after Grant of the D Block license. The record supports
Commission involvement in the adjudication of disputes arising from the 700 MHz
Public/Private Partnership established in this Second Report and Order.1070 We find that the
Commission should assume primary responsibility and jurisdiction for adjudicating intractable
disputes that arise once the parties are operating pursuant to the terms of the NSA. While we
strongly encourage the parties to first attempt to resolve any disagreements themselves through
voluntary means, the parties to the NSA may at any time bring a complaint based on a claim that
the other party has deviated from the terms of the NSA, or a petition for a declaratory ruling to
resolve the proper interpretation of an NSA term or provision. We emphasize that these shall be
the exclusive remedies for claims seeking the interpretation of the NSA in the first instance. The
Commission may, however, as an alternative to adjudicating the issues, require the parties to first
seek a settlement to the dispute or authorize them to resolve the dispute through litigation or
other means, particularly if the dispute is found to involve no significant public concerns, and the
Commission will consider any request by the parties to authorize such means.
529. In the event the Commission decides to adjudicate the issues, we provide that the
Commission will have full authority to interpret not only its rules but all of the provisions of the
NSA.1071 We further provide that, if the Commission finds a material breach of the NSA, it may
apply any remedy or enforcement mechanism within its authority. In particular, insofar as the D
Block license is conditioned for its entire license term upon the D Block licensee’s compliance
with the terms of the NSA, breach of this licensing condition may result in the cancellation of the
license or other enforcement action.1072 Similarly, as discussed elsewhere, the Public Safety
Broadband Licensee’s breach of its license terms, the NSA, or our rules may also result in the
cancellation of its license or other enforcement action. As with adjudication of disputes during
the NSA negotiation process, the Chiefs of PSHSB and WTB are delegated joint responsibility
for adjudicating any disputes that arise during performance of the NSA. Bureau level
adjudications of NSA disputes must be completed within 45 days. The parties may seek review
by the Commission of any bureau-level adjudication.1073 Finally, we establish that, if a breach of
1070
NPSTC 700 MHz Further Notice Comments at 13 (submitting disputes regarding performance to the
Commission appropriate because of the obligation in the Act to promote safety of life and property).
1071
This is consistent with our requirement that the NSA must be approved by the Commission and the terms of the
NSA are part of the license conditions.
1072
See 47 C.F.R. § 1.2109(c). The Commission may reassign the license through competitive bidding to a new
applicant.
1073
47 C.F.R. § 1.115.
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the NSA occurs but is not brought to the Commission for resolution, the Commission retains
authority to apply all appropriate remedies on its own initiative at any time after the breach
occurs.
530. Reporting Obligations. Once the NSA is approved by the Commission and
executed by the parties, 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,1074 which public safety entities (e.g., police, fire departments) are using the
broadband network in each area of operation;1075 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. We anticipate that this information will be readily
available from the billing systems used for the shared network, and reserve the right to specify
additional information that the quarterly reports must include at a later date. The D Block
licensee and Public Safety Broadband Licensee also have joint responsibility to register the base
station locations with the Commission, providing basic technical information, including
geographic location. Such registrations may be filed with a request for confidential treatment by
the Commission. In this regard, we delegate to the Wireless Bureau authority to adopt rules and
procedures to implement this requirement, as well as authority to modify ULS to accept such
filings and to issue a Public Notice describing any such modifications and relevant filing
procedures.1076 We delegate to the Wireless Bureau the authority to adopt filing rules and
procedures not inconsistent with this Second Report and Order to facilitate these reporting
obligations.
4.
Other Issues
a.
Bidding Credits
531. Background. In the 700 MHz Further Notice,1077 we sought comment on whether
the Commission’s prior determination to provide applicants that are eligible to be licensed as
designated entities, i.e., small businesses, with bidding credits in an auction of 700 MHz licenses
should apply to the license proposed by Frontline.1078 Given that the Commission previously has
1074
As part of these quarterly reports, the Commission may require financial information from the ultimate parent
entity of the individual parties to the NSA.
1075
By providing the number of public safety entities that have chosen to receive service from the network, the
reports will provide the Commission with an important indicator of the network’s success in meeting public safety
needs. See NPSTC 700 MHz Further Notice Reply Comments at 5-6. See also Cyren Call 700 MHz Further Notice
Comments at 17-18 (“In the end, success must be measured by the network’s ability to attract Public Safety users . .
. . .”); AT&T 700 MHz Further Notice Reply Comments at 25 (recommending that the Commission require the D
Block licensee to meet certain public safety participation benchmarks by a certain date); see also NPSTC 700 MHz
Further Notice Comments at 5-6 (D Block licensee should be judged on an ongoing basis by the quality of service it
provides and the number of agencies that have chosen to participate in the network).
1076
TIA 700 MHz Further Notice Comments at 5 (recommending that the Commission impose regular reporting
requirements to ensure performance).
1077
700 MHz Further Notice, 22 FCC Rcd at 8160 ¶ 268.
1078
700 MHz Further Notice, 22 FCC Rcd at 8166 ¶ 286. We did not specifically seek comment on Frontline’s
previous proposal, in response to the 700 MHz Public Safety Ninth Notice, that the Commission should develop
bidding credits for bidders making commitments to exceed required coverage benchmarks, modeled on the
(continued….)
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declined to offer designated entities bidding credits for services with high implementation costs,
we expressed concern that the capital requirements of constructing a nationwide network for
public safety services might make it inappropriate to offer bidding credits in connection with
such a proposal.1079
532. We further explained in the 700 MHz Further Notice that Frontline’s proposal that
its proposed commercial licensee be required to provide only wholesale service created a conflict
with the eligibility requirements for entities seeking a designated entity bidding credit.1080
Section 1.2110(b)(iv) of the Commission’s rules restricts an applicant’s eligibility for designated
entity benefits if it has an “impermissible material relationship,” which is defined as an
arrangement with one or more entities for the lease or resale (including under a wholesale
agreement) of, on a cumulative basis, more than 50 percent of the spectrum capacity of any one
of the applicant’s or licensee’s licenses.1081 Thus, in considering whether to offer bidding
preferences, including small business bidding credits, we noted in the 700 MHz Further Notice
that a wholesale-service-only requirement appeared to “plainly” create a violation of Section
1.2110(b)(iv)(A) of the Commission’s designated entity eligibility rules.1082 We therefore sought
comment on this issue.1083
533. In response to the 700 MHz Further Notice, Frontline argues in favor of providing
bidding preferences, such as bidding credits, for applicants applying for the proposed
commercial license, now the D Block license, based on their status as a small business or
designated entity.1084 Frontline contends in part that it, and other entities, that meet the
Commission’s definition of small businesses for purposes of receiving bidding credits are
capable of raising the capital necessary to fulfill the obligations of the proposed commercial
(Continued from previous page)
Commission’s tribal lands bidding credits program. See Frontline 700 MHz Public Safety Ninth Notice Comments at
32. Moreover, Frontline did not continue to advocate such a credit in its response to the 700 MHz Further Notice.
See generally Frontline 700 MHz Further Notice Comments; Frontline 700 MHz Further Notice Reply Comments.
1079
As explained in the 700 MHz Further Notice, this was true for services with extremely high capital costs such as
direct broadcast satellite service and the digital audio radio service. 700 MHz Further Notice, 22 FCC Rcd at 8166 ¶
285. See generally, Revision of Rules and Policies for the Direct Broadcast Satellite Service, IB Docket No. 95-168,
PP Docket No. 93-253, Report and Order, 11 FCC Rcd 9712 (1995) (DBS Auction Order); Establishment of Rules
and Policies for the Digital Audio Radio Satellite Service in the 2310-2360 MHz Band, IB Docket No. 95-91,
Report and Order, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd
5754 (1997) (DARS Auction Order).
1080
700 MHz Further Notice, 22 FCC Rcd at 8166 ¶ 287.
1081
47 C.F.R. § 1.2110(b)(iv)(A).
1082
700 MHz Further Notice, 22 FCC Rcd at 8167 ¶ 287. As the Commission explained in the 700 MHz Further
Notice, “[i]n the event that we offered bidding preferences with respect to such an ‘E Block’ license, the existing
rule plainly would preclude any licensee that is required to operate only as a wholesale provider from receiving
designated entity benefits.” Id.
1083
In connection with Frontline’s material relationship arguments, we note the Office of Advocacy of the Small
Business Administration’s comments urging the Commission to stay the effect of revisions made in 2006 to the
Commission’s designated entity rules for the 700 MHz auction. SBA 700 MHz Further Notice Comments at 2. We
find nothing persuasive in the Office of Advocacy’s pleading as to why the Commission’s current rules should not
apply to the auction of 700 MHz licenses.
1084
Frontline 700 MHz Further Notice Comments at 58-67.
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licensee.1085 Frontline notes that the Commission’s definition of small businesses is based on
revenues rather than cash reserves or assets, and asserts that small businesses will be able to
attract additional capital as needed to provide service with a Commission license.1086 Frontline
also argues more broadly that providing bidding credits attracts applicants for licenses and
thereby enhances the competition for and the efficient assignment of licenses.1087 In brief,
Frontline maintains that bidding credits may help potential applicants overcome efforts by
incumbents to prevent others from winning newly available licenses. Commenters such as
McBride, Blooston, and Council Tree generally support the availability of designated entity
bidding credits either in connection with or without regard to Frontline’s specific proposals.1088
534. MetroPCS states that, given Frontline’s proposal for the obligations of the
commercial licensee, it “shares the Commission’s ‘serious concerns’” about offering bidding
preferences to such applicants based on their small business status.1089 It maintains that the
Frontline proposal would cause “a per se violation” of the current designated entity rules
concerning impermissible material relationships.1090 MetroPCS argues that Frontline has
effectively requested that the Commission waive or change its designated entity rules for the
proposed commercial licensee. It claims that Frontline has offered no grounds to justify such an
action and that the Commission’s current rules prohibit a wholesale arrangement such as that
suggested by Frontline.1091 The United States Cellular Corporation also opposes the Frontline
proposal for both adopting the public/private partnership licensing regulations and offering
bidding credits, arguing that such requirements would undermine “existing rules and
expectations.”1092
535. Discussion. We conclude that we should provide applicants that are eligible to be
licensed as designated entities with bidding credits in the auction of the D Block license,
consistent with the Commission’s prior decision regarding bidding credits for 700 MHz
licenses1093 and our current designated entity rules.1094 As explained elsewhere, we do not adopt
Frontline’s proposal that the D Block licensee be required to provide only wholesale service.
1085
Id. at 62.
1086
Id. at 60-61.
1087
Frontline June 28 Ex Parte, Attach. at 16.
1088
McBride Spectrum Partners, LLC 700 MHz Further Notice Comments at 4-8; Blooston 700 MHz Further Notice
Comments at 7; Council Tree 700 MHz Further Notice Reply Comments at 5-7.
1089
MetroPCS 700 MHz Further Notice Comments at 60.
1090
Id. at 60-61. It should be noted that MetroPCS expresses disagreement “with the Commission’s contention that
wholesale arrangements are inconsistent with the statutory scheme for DEs.” However, it acknowledges that “the
holding to this effect, although being challenged, still remains in effect.” Id. at 61 n. 148; see also id. at 63 n.155.
1091
Id. at 61-63. MetroPCS further argues that a grant of Frontline’s request should require the Commission to
reexamine the future applicability of its designated entity rules to wholesale arrangements in general. Id. at 61
n.150.
1092
USCC 700 MHz Further Notice Comments at 19-20.
1093
See Upper 700 MHz First Report and Order, 15 FCC Rcd at 529-530 (establishing bidding credits for
frequencies covered by the D Block).
1094
See 47 C.F.R. § 1.2110.
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Thus, the issues raised by commenters opposing designated entity benefits in light of such a
requirement need not be addressed.
536. The Commission employs a service-by-service approach when it comes to
defining designated entities eligible for small business bidding credits.1095 As discussed in detail
elsewhere, the D Block license presents a unique and innovative opportunity for a commercial
service provider to serve the public interest by forming a public/private partnership with the
Public Safety Licensee for the benefit of public safety entities and the public at large. Although
the Commission generally has refrained from offering bidding preferences for nationwide
licenses with services that may have high capital costs, as stated above, we have reserved our
discretion to employ a service-by-service approach when it comes to defining small businesses.
Pursuant to that discretion, the Commission has previously offered bidding credits in connection
with nationwide licenses where the service specific rules have made it appropriate to do so.1096
537. We conclude that the conditions on the D Block license detailed herein, which
include compliance with all the terms of the NSA to be negotiated with the Public Safety
Broadband Licensee, will deter bidding by parties that likely will be unable to fulfill the crucial
financial commitments required to comply with the conditions and retain the license. Given
these conditions, parties that are uncertain of their ability to hold the license for the full term are
less likely to bid on the D Block license. In order to encourage the widest range of potentially
qualified applicants to participate in bidding for the D Block license, we will provide eligible
bidders for the D Block license with the existing 15 and 25 percent bidding credits, as the credits
may be necessary to create incentives for investors to provide innovative small businesses with
the capital necessary to compete for the D Block license at auction.1097 Pursuant to our existing
small business size standards, eligible bidders with average attributable gross revenues for the
last three years not exceeding $15 million or $40 million, respectively, may be eligible for
bidding credits of 25 percent or 15 percent, respectively.1098
b.
License Partitioning, Disaggregation, Assignment, and
Transfer
538. Background. Section 27.15 of the Commission’s rules permits Part 27 licensees
to seek Commission authorization to partition their geographic license areas and disaggregate
1095
Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, WT Docket No. 97-82,
Third Report and Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374, 388 ¶ 18 (1997)
(“Part 1 Third Report and Order”); 47 C.F.R. § 1.2110 (c)(1).
1096
See “Announcing the High Bidders in the Auction of Ten Nationwide Narrowband PCS Licenses,” Public
Notice, PNWL 94-4 (rel. Aug. 2, 1994). In the nationwide narrowband PCS auction (Auction No. 1), bidding credits
on ten nationwide licenses were offered to women- and minority-owned businesses. See also “1670-1675 MHz
Band Auction Closes, Winning Bidder Announced,” Public Notice, 18 FCC Rcd 9089 (2003). In the 1670-1675
MHz Band auction (Auction No. 46), the Commission offered a bidding credit on a nationwide license in the 16701675 MHz band to small businesses with average annual revenues not exceeding $40 million and very small
businesses with average annual revenues not exceeding $15 million.
1097
47 C.F.R. § 27.502.
1098
We note that use of these special small business size standards does not require coordination with the Small
Business Administration.
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their spectrum at any time following the grant of their licenses.1099 Frontline in its “Public Safety
Broadband Deployment Plan” proposed that to the extent the commercial licensee satisfies the
construction requirements of §27.14 through partitioning or disaggregation, it shall do so through
the first options listed in Sections 27.15(d)(1) and (2) of the Commission’s rules.1100 In the
700MHz Further Notice, we sought comment on the proposed “Public Safety Broadband
Deployment Plan,” its likely effects on both the commercial and the public safety users in the
700 MHz Band, and whether it would be in the public interest for the Commission to adopt such
a proposal, or alternatives to achieve the same or similar public interest goals.1101 While most of
commenters are silent on the issue, NPSTC recommends that the nationwide public safety
licensee be provided the authority to veto any subsequent proposed license transfer or
disaggregation/partitioning of the proposed commercial license that it believes would be
detrimental to the deployment or continued operation of nationwide broadband system.1102
539. Discussion. Based on the record, we decide to prohibit geographic partitioning
and spectrum disaggregation for the D Block licensee. As discussed elsewhere, the Public Safety
Broadband Licensee is also prohibited from partitioning and disaggregation. We reasoned that
such restriction is necessary to ensure the integrity of the nationwide broadband network and the
public/private partnership we establish.
540. We agree with NPSTC’s concern that unrestricted license transfer or
disaggregation and partitioning of the D Block license would be detrimental to the successful
deployment and continued operation of nationwide broadband system.1103 We find that the
success of the Public/Private Partnership largely depends on the partnership structure and the
negotiated terms of the NSA. Adding new parties into the partnership structure and splitting
various obligations among the new partners after the NSA is executed could further complicate
the rights and responsibilities of each party. Dealing with multiple licensees in case of disputes
may also be unduly burdensome for the Public Safety Broadband Licensee and delay successful
resolution of issues. The D Block license has specific license conditions that are designed to
facilitate successful deployment and operation of nationwide broadband system. Allowing
multiple licensees in the band may impair the nationwide aspect of the broadband network.
541. The record fails to address how the conditions in the NSA will apply to new D
Block licensee in cases of partitioning and disaggregation. The goal of specific construction
requirements in both the partitioning and disaggregation context is “to ensure that the spectrum is
used to the same degree that would have been required had the partitioning or disaggregation
transaction not taken place.”1104 As we noted in the 700 MHz Further Notice, successful
1099
47 C.F.R. § 27.15.
1100
Frontline Mar. 26 Ex Parte in WT Docket Nos. 06-150 and 06-169 and PS Docket No. 06-229 at 4, Attached
Proposed Rules. Under this proposal, in partitioning, each D Block licensee should meet the build-out requirements
independently within its own license area. After spectrum disaggregation, however, licensees would share the
responsibility for the build-out. If either licensee fails, both licensees would be subject to forfeiture.
1101
700 MHz Further Notice, 22 FCC Rcd at 8164 ¶ 277.
1102
NPSTC 700 MHz Further Notice Comments at 13.
1103
NPSTC 700 MHz Further Notice Comments at 13.
1104
CMRS Partitioning and Disaggregation Order, 11 FCC Rcd 21831, 21864 ¶ 61 (1996).
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negotiation of the NSA is a critical first step to achieving the benefits to public safety.1105 If the
D Block licensee is allowed partitioning and disaggregation, the administrative burden on both D
Block licensee and the public safety licensee would outweigh the benefit of flexibility to the
licensee.
542. It would best service the public interest to assure reliable partnership between the
D Block licensee and the potential Public Safety Broadband Licensee by prohibiting partitioning
and disaggregation. We recognize that the Commission’s existing Secondary Markets rules
governing transfers and assignments would be applicable to the D Block licensee, providing
further flexibility to the licensee.1106 Thus, the D Block licensee would be permitted to assign or
transfer its licensee subject to the Commission review and prior approval.1107
c.
Commercial Service Issues
(i)
Wholesale and Open Access Proposals
543. Background. In the 700 MHz Further Notice, we sought comment on a proposal
that the commercial licensee be required to operate as a “wholesale” provider with respect to
commercial use of the Public/Private Partnership spectrum.1108 In its comments, Frontline
proposed that the commercial license to be used in the Public/Private Partnership should be
allocated exclusively for a wholesale network provider whose sole focus is to operate the
continuously reliable and robust network services that public safety needs.1109 Under this
“wholesale only” or “open access” proposal, the licensee would be required not to discriminate
against any retail service provider, and users would be allowed to attach any devices to the
network and to access services and content provided by unaffiliated parties.1110 In its comments,
Frontline suggests that the commercial licensee be prohibited from selling more than 24.9
percent of its total service capacity to any one entity, and prohibited from selling capacity to
affiliated third parties.1111
544. Most of the comments regarding this proposal parallel the comments regarding
“open access” for other 700 MHz Commercial Services spectrum, which we summarize
1105
700 MHz Further Notice, 22 FCC Rcd at 8165 ¶ 282.
1106
See generally Secondary Markets Second Report and Order, 19 FCC Rcd 17503.
1107
Because any such application is subject to Commission review and prior approval, however, it is precluded from
overnight processing.
1108
700 MHz Further Notice, 22 FCC Rcd at 8163-64 ¶ 276, 8167-68 ¶ 290; See Frontline 700 MHz Public Safety
Ninth Notice Comments at 29-31; Frontline Mar. 6 Comments in WT Docket No. 06-150 at 16-19. See also
Frontline Mar. 26 Ex Parte in WT Docket Nos. 06-150- and 06-169 and PS Docket No. 06-229, Attach. (Frontline’s
proposed 47 C.F.R. §§ 27.16, 27.51).
1109
Frontline 700 MHz Public Safety Ninth Notice Comments at 29.
1110
See 700 MHz Further Notice, 22 FCC Rcd at 8168 ¶ 290. This proposal relates to one specific block of 700
MHz Band spectrum, and is separate from PISC’s proposal for open access provisions applicable to CMRS
spectrum generally in the 700 MHz Band, as discussed elsewhere in this Second Report and Order. See also
Frontline 700 MHz Public Safety Ninth Notice Comments at 30; Frontline Mar. 6 Comments in WT Docket No. 06150 at 16-17; Frontline 700 MHz Further Notice Comments at 4-5; CCIA 700 MHz Further Notice Comments at 6.
1111
Frontline 700 MHz Further Notice Comments at 19-20.
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elsewhere. Proponents cite benefits they expect will flow from adoption of the proposal,1112
while opponents dispute such claims and predict adverse consequences.1113 The Wireless
Founders Coalition for Innovation urges us to apply “Open Services, Open Devices, and Open
Auction” requirements to the Public/Private Partnership spectrum “as a sandbox for
entrepreneurs.”1114 RCC Consultants, however, notes that, “[t]he vast bulk of the Frontline
[Comments] are addressed to matters of competition as to which public safety agencies have
indicated no special interest . . . .”1115 Arcadian observes that “no existing providers offer a
wholesale service with automatic roaming and Carterfone benefits,” and argues that “[t]he
Commission should not conduct an experiment with the valuable Public/Private Partnership
License spectrum, particularly if our nation’s first responders are going to be relying on it.”1116
NPSTC concludes that “[o]pen access may be a viable option for the future, however, at this time
not enough is known about the effects on the public safety part of the network to mandate it in
the rules.”1117 CTIA, Alltel, and other carriers opposed mandatory “wholesale” requirement,
arguing that the Commission should not mandate the “wholesale only” restriction for the
commercial licensee and allow the innovation and market competition to determine the best
course of the business model for the spectrum.1118 Cyren Call argues that the proposal would
have “very negative consequences . . . for Public Safety” because it would effectively preclude
existing carriers from either participating in the auction or from entering into network hosting or
other arrangements with the winning bidder.1119 On the other hand, Google supports the
mandatory wholesale/open access component of Frontline’s proposal, arguing that it would
“ensure that at least some of the spectrum available in the auction would lead to an open
broadband platform.”1120
545. Discussion. Based on the record, we decline to restrict the D Block licensee to
operating exclusively on a “wholesale” or “open access” basis. Instead, we provide the D Block
licensee with flexibility to provide wholesale or retail services or other types of access to its
1112
See, e.g., CCIA 700 MHz Further Notice Comments at 6; Frontine 700 MHz Further Notice Comments at 16-23;
PISC 700 MHz Further Notice Comments at 12-29.
1113
See, e.g., CTIA 700 MHz Further Notice Comments at 17-19; Qualcomm 700 MHz Further Notice Comments at
11-12; Verizon Wireless 700 MHz Further Notice Comments at 45-49, 51; AT&T 700 MHz Further Notice Reply
Comments at 16-17; CTIA 700 MHz Further Notice Reply Comments at 11, 12; MetroPCS 700 MHz Further Notice
Reply Comments at 37 n.113, 40; USD Cellular 700 MHz Further Notice Comments at 23-24.
1114
WFCI Ex Parte, WT Docket No. 06-150 (filed June 7, 2007) at 2-5.
1115
RCC 700 MHz Further Notice Reply Comments at 47.
1116
Arcadian 700 MHz Further Notice Reply Comments at 5.
1117
NPSTC 700 MHz Further Notice Reply Comments at 9.
1118
See Cyren Call 700 MHz Further Notice Comments at 24-29; CTIA 700 MHz Further Notice Comments at 18,
23; Alltel 700 MHz Further Notice Comments at 6; MetroPCS 700 MHz Further Notice Comments at 52-55; AT&T
700 MHz Further Notice Reply Comments at 16-17; CTIA 700 MHz Further Notice Reply Comments at 12;
MetroPCS 700 MHz Further Notice Reply Comments at 33-34; Stelera 700 MHz Further Notice Reply Comments
at 6.
1119
Cyren Call 700 MHz Further Notice Comments at 26; see also id. at 29 (Commission should not tie the
partnership to a business model with an “uncertain commercial reception and unknown level of acceptance”).
1120
Google 700 MHz Further Notice Comments at 8-9.
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network that comply with our rules and the NSA. This decision is consistent with our
determination, elsewhere in this Second Report and Order, to reject imposing open access
requirements broadly in the 700 MHz Band. We also note that concerns about imposing such
obligations on the D Block licensee have been raised by a number of public safety
commenters.1121 NPSTC, for example, states that “open access” should not be a requirement for
the commercial license associated with the public/private partnership.1122 NPSTC states that the
effects of an open access environment on public safety is unknown and that, before open access
is mandated, a number of core issues such as “confidentiality, authentication, integrity and non
repudiation must be all understood, particularly in the public safety environment.”1123 We
conclude that, given the public/private partnership obligations adopted in this Second Report and
Order, it would not serve the goals of the Public/Private Partnership to impose special wholesale
or open-access requirements (e.g., device, application, or network access conditions) on the D
Block licensee specifically. Rather, giving the D Block licensee the flexibility to choose the
commercial service it will provide based on its determination of market needs should improve
the viability of the 700 MHz Public/Private Partnership and serve the interests of public safety.
546. With respect to the network services offered to public safety, we note that the
negotiated terms adopted in the NSA will establish consistent technical requirements for
attachment of commercial and public safety devices to the network, as necessary for appropriate
network control. The Public Safety Broadband Licensee will also have the right to determine
and approve specifications for public safety equipment used on the network, to the extent that
such specifications are not inconsistent with network control requirements established in the
NSA.
(ii)
Roaming Proposal
547. Background. In the 700 MHz Further Notice we sought comment on Frontline’s
proposal that its proposed commercial licensee be required, as a condition of its license, to offer
roaming to any provider with customers utilizing devices compatible with the open protocol
interface of the Public/Private Partnership network, and that such obligation be extended to all
spectrum holdings of the commercial licensee.1124 Frontline argued that this requirement would
serve as a benefit to competition generally and small and rural commercial providers
particularly.1125
1121
See, e.g., NPSTC July 6, 2007 Ex Parte at 2; APCO 700 MHz Further Notice Reply Comments at 5.
1122
NPSTC July 6, 2007 Ex Parte at 2.
1123
NPSTC 700 MHz Further Notice Reply Comments at 8-9. Cyren Call expresses similar concerns, and states that
there are a number of “compelling reasons for rejecting the requirement the ‘open access’ ‘wholesale’ model.”
Cyren Call 700 MHz Further Notice Comments at 28 (stating that a shared network will have multiple levels of
priority access, encryption, and other forms of secured communications requirements, which raise significant
unanswered questions vis-à-vis an open access requirement).
1124
700 MHz Further Notice, 22 FCC Rcd at 8162 ¶ 274; Frontline 700 MHz Public Safety Ninth Notice Comments
at 32-33; Frontline Mar. 6 Comments in WT Docket No. 06-150 at 21.
1125
See Frontline 700 MHz Further Notice Comments at 24-25 (roaming requirement “will promote and protect
competition by enabling mid-sized and rural carriers to remain viable wireless competitors in a concentrated
market.”).
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548. Supporters of the proposal contend that this requirement will promote public
safety in rural areas and that access to a robust, reliable, high-quality wireless network will
enable small clinics and mobile health care workers in otherwise uncovered areas to access stateof-the-art IP applications such as remote video feeds and the downloading of visual
information.1126 On the other hand, CTIA, MetroPCS and others oppose Frontline’s proposal,
arguing that the roaming requirement as well as the wholesale requirement conflict with current
CMRS carriers business models and that the Commission should refrain from dictating specific
business decisions for the commercial licensee.1127 Cyren Call further argues against the
proposal, as it did with the open access and wholesale proposals, on the grounds that it “would
cause more harm than good to take any action that will have as its effect the preclusion of
existing wireless carriers from choosing to participate in the [D Block license] auction, or from
choosing to enter into network hosting or other arrangements . . . with the winning [D Block
license] bidder.”1128
549. Discussion. We note that the Commission is already considering in another
proceeding a broad range of issues related to the automatic roaming obligations for CMRS
carriers.1129 We conclude that we should defer to the broader context of the pending roaming
proceeding the determination of whether there are public interest benefits in also requiring
automatic roaming to be provided by other commercial licensees. In addition, with regard to the
D Block license specifically, we find that the proposed roaming requirement, which Frontline
advocates as a benefit to competition generally and small and rural commercial providers
particularly,1130 is not related to the public safety purposes of the Public/Private Partnership, and
may, as Cyren Call argues, deter qualified carriers from seeking to bid on the D Block license.
We will therefore not at this time impose any special roaming requirements on the D Block
licensee.
1126
See Frontline 700 MHz Public Safety Ninth Notice Comments at 32-33; Frontline Mar. 6 Comments in WT
Docket No. 06-150 at 21; CCIA 700 MHz Further Notice Comments at 7; Cellular South 700 MHz Further Notice
Comments at 19-20; Frontline 700 MHz Further Notice Comments at 4-5, 14-21; Google 700 MHz Further Notice
Comments at 8-9; CCIA 700 MHz Further Notice Reply Comments at 6-7; Cellular South 700 MHz Further Notice
Reply Comments at 19-20.
1127
See CTIA 700 MHz Further Notice Comments at 18; Cyren Call 700 MHz Further Notice Comments at 24-29;
MetroPCS 700 MHz Further Notice Comments at 52, 54; NENA 700 MHz Further Notice Comments at 8; CTIA
700 MHz Further Notice Reply Comments at 18; Cyren Call 700 MHz Further Notice Reply Comments at 24-29;
MetroPCS 700 MHz Further Notice Reply Comments at 52, 54; NENA 700 MHz Further Notice Reply Comments at
8.
1128
Cyren Call 700 MHz Further Notice Comments at 26.
1129
See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, Automatic and
Manual Roaming Obligations Pertaining to Commercial Mobile Radio Services, WT Docket No. 05-265,
Memorandum Opinion & Order and Notice of Proposed Rulemaking, 20 FCC Rcd 15047, 15048 ¶ 2 (2005)
(“Roaming Reexamination NPRM”).
1130
See Frontline 700 MHz Further Notice Comments at 24-25 (roaming requirement “will promote and protect
competition by enabling mid-sized and rural carriers to remain viable wireless competitors in a concentrated
market.”).
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Applicability of CALEA, E911, and Other
Requirements
550. Background. As part of its proposal on which we sought comment, Frontline
asked the Commission to clarify that the regulatory requirements under the Communications
Assistance for Law Enforcement Act (CALEA) and E911 rules, as well as “other requirements
applicable to retail service providers,” do not apply to its proposed commercial licensee.1131
Frontline argued that the commercial licensee will be providing only wholesale service, that any
retailer of its service will be subject to any “CALEA, E911, or other requirements applicable to
retail service providers,” and that, therefore, “no gap in the enforcement of these requirements
will result from Frontline’s proposals.”1132
551. USCC opposes Frontline’s requested clarification, stating that “CALEA and E911
are crucial mandates, upon which Frontline’s future competitors have spent and will spend
millions of dollars.”1133 A number of comments respecting regulatory requirements such as
CALEA, E911, and hearing aid compatibility1134 focus on the Commission’s proposed
clarification in the 700 MHz Commercial Services Notice.1135 CTIA supports the Commission’s
tentative conclusion in the 700 MHz Commercial Services Notice that certain services using Part
27 spectrum should be required to fulfill E911 and hearing aid compatibility obligations
consistent with the Commission’s existing functional criteria for those requirements.1136 NENA
further argues that the burden should be on parties seeking exemption from E911 obligations to
file for a waiver.1137 By setting the expectation that the Commission’s E911 rules will be
applicable to services operating in the 700 MHz Band, NENA believes that the repeated
rulemakings and costly retrofitting that occurred in the past may be avoided.1138 In its more
recent filings, Frontline modifies its original proposal and now proposes that the commercial
licensee will be subject to CALEA requirements and that it must “ensure that the shared network
1131
See Frontline Mar. 26 Ex Parte in WT Docket No. 06-150 and 06-169 and PS Docket No. 06-229 at 8. See also
47 C.F.R. § 20.18 (establishing E911 requirements for CMRS providers); 5 U.S.C. § 603 (CALEA); 47 C.F.R. Part
1, Subpart Z (establishing requirements under CALEA).
1132
See Frontline Mar. 26 Ex Parte in WT Docket No. 06-150 and 06-169 and PS Docket No. 06-229 at 8.
1133
USCC 700 MHz Further Notice Comments at 21.
1134
Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, Report and
Order, 18 FCC Rcd 16753, 16764-66 (2003).
1135
See 700 MHz Commercial Services Notice, 22 FCC Rcd at 9388-90 ¶¶ 99-103.
1136
See, e.g., CTIA 700 MHz Commercial Services Notice Comments at 21 (“With respect to wireless services, such
an approach is dictated by the public safety and public interest determinations underlying the Commission’s E911
and HAC rules, as well as fundamental principles of regulatory parity.”); see also NENA 700 MHz Commercial
Service Notice Comments at 6 (Commission should make the E911 requirements of Section 20.18 of the
Commission’s rules applicable to all services operating in the 700 MHz Band that meet the functional criteria set
forth in Section 20.18(a) of the rules).
1137
NENA 700 MHz Commercial Services Notice Comments at 6.
1138
Id.
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will not inhibit service-specific requirements, such as E911, provided by retailers of commercial
services using the shared network .”1139
552. Discussion. We decline to categorically exempt services offered by the D Block
licensee from E911, CALEA, and other regulatory requirements. Instead, we clarify that E911,
CALEA, and other regulatory requirements will apply to services provided using Public/Private
Partnership spectrum to the extent and only to the extent that these requirements apply to similar
services provided elsewhere in the 700 MHz Band. We have only recently concluded that the
E911 requirements established in Section 20.18 of our rules will apply to all commercial mobile
radio services, including such services throughout the 700 MHz Band, that meet the functional
criteria in Section 20.18(a),1140 and we see no reason to revisit that decision.1141 We defer any
further examination of regulatory applicability to a more concrete and particular context, e.g., if
service providers seek clarification regarding the applicability of a specific regulatory
requirement to their specific service.1142
553. We also note that, even though the D Block license for spectrum in the “D Block”
band will be issued pursuant to Part 27 of the Commission’s rules, the licensee will be required
to comply with other rule parts, which are applicable to the other commercial 700 MHz bands,
unless otherwise stated in this Second Report and Order.1143 Some of these rule parts will be
applicable by virtue of the fact that they apply to all licensees and others will apply depending on
the type of services the D Block licensee provide. For example, the D Block licensee will be
required to comply with the practices and procedures listed in Part 1 of our rules for license
applications, adjudicatory proceedings, etc. In addition, to the extent the licensee provides a
Commercial Mobile Radio Service, such service would be subject to the provisions of Part 20 of
the Commission’s rules, along with the provisions in Part 27.1144 Part 20 applies to all CMRS
providers, even though the stations may be licensed under other parts of our rules.
IV.
PROCEDURAL MATTERS
A.
Regulatory Flexibility Act
554. Pursuant to the Regulatory Flexibility Act of 1980, as amended (RFA),1145 the
Final Regulatory Flexibility Analysis (FRFA) for the Second Report and Order is set forth in
Appendix C. Although Section 213 of the Consolidated Appropriations Act 2000 provides that
1139
Frontline July 3, 2007 Ex Parte at 1-2.
1140
See 700 MHz Report and Order, 22 FCC Rcd at 8108-21 ¶¶ 120-150. We note that while the Commission
concluded that providers of digital CMRS in the 700 MHz Commercial Services Band, among others, should be
subject to hearing aid-compatibility requirements, it declined to impose such requirements until an appropriate
technical standard for compatibility is established, and it established a 24-month period to provide time for the
development of such a standard. See id. at 8108-21 ¶¶ 142-150.
1141
We also note that we are not mandating wholesale services in this band.
1142
We therefore express no opinion as to the applicability of any particular regulatory obligation to providers of
wholesale broadband network capacity.
1143
See, e.g., Upper 700 MHz Report and Order, 15 FCC Rcd 476, 509-513 ¶¶ 81-92 (2000).
1144
47 C.F.R. Part 20.
1145
See 5 U.S.C. § 604.
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the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the
746-806 MHz Band,1146 we nevertheless believe that it would serve the public interest to analyze
the possible significant economic impact of the policy and rule changes in this band on small
entities. Accordingly, the FRFA in Appendix C of this Second Report and Order includes an
analysis of this impact in connection with all spectrum that falls within the scope of the Second
Report and Order, including spectrum in the 746-806 MHz Band.
B.
Paperwork Reduction Act of 1995
555. The Second Report and Order contains both new and modified information
collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 10413. It will be submitted to the Office of Management and Budget (OMB) for review under
Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to
comment on the new information collection requirements contained in this proceeding.
Comments should address the following: (a) whether the proposed collection of information is
necessary for the proper performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the Commission’s burden estimates;
(c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on respondents, including the use of
automated collection techniques or other forms of information technology. In addition, the
Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public
Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the
Commission might “further reduce the information collection burden for small business concerns
with fewer than 25 employees.” In this present document, we have assessed the potential effects
of the various policy changes with regard to information collection burdens on small business
concerns, and find that there are no results specific to businesses with fewer than 25 employees.
In addition, we have described impacts that might affect small businesses, which includes most
businesses with fewer than 25 employees, in the FRFA in Appendix C, infra. We note, however,
that Section 213 of the Consolidated Appropriations Act 2000 provides that rules governing
frequencies in the 36 megahertz of the spectrum in the 746-806 MHz Band allocated for
commercial use become effective immediately upon publication in the Federal Register without
regard to certain sections of the Paperwork Reduction Act.1147 We are therefore not inviting
comment on any information collections that concern those frequencies.
V.
ORDERING CLAUSES
556. Accordingly, IT IS ORDERED that pursuant to Sections 1, 4(i), 5, 7, 10, 201, 202,
208, 214, 215, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 229, 251(e)(3),
301, 303, 307, 308, 309, 310, 311, 312, 316, 324, 331, 332, 333, 336, 337, 403, 503, and 710, of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 155, 157, 160, 201,
202, 208, 214, 215, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3),
229, 301, 303, 307, 308, 309, 310, 311, 312, 316, 324, 331, 332, 333, 336, 337, 403, 503, and
1146
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).
1147
Id.
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610, and Section 102 of the Communications Assistance for Law Enforcement Act, 18 U.S.C. §
1001, this SECOND REPORT AND ORDER in WT Docket No. 06-150, CC Docket No. 94-102,
WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06229, and WT Docket No. 96-86 is ADOPTED, and that Part 2, 27, and 90 of the Commission’s rules,
47 C.F.R. Parts 2, 27, and 90, are AMENDED as set forth in Appendix B. This SECOND REPORT
AND ORDER shall become effective 60 days after publication in the Federal Register subject to OMB
approval for new information collection requirements.
557. IT IS FURTHER ORDERED THAT, pursuant to Section 5(c) of the
Communications Act of 1934, as amended, 47 U.S.C. § 5(c), the Wireless Telecommunications
Bureau and Public Safety and Homeland Security Bureau ARE GRANTED DELEGATED
AUTHORITY to implement the policies set forth in this SECOND REPORT AND ORDER and
the rules, as revised, set forth in Appendix B hereto.
558. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, 316(a), the 700 MHz Guard Band
A Block licenses of Access 700, LLC, Pegasus Guard Band, LLC, and Dominion 700, Inc. ARE
MODIFIED, as specified in Appendix D, upon the effective date of this SECOND REPORT
AND ORDER.1148
559. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, 316(a), Access 700 Holdings, LLC,
Pegasus Guard Band, LLC, and Radiofone Nationwide PCS, LLC shall surrender their 700 MHz
Guard Band B Block licenses to the Commission no later than 5 days from the effective date of
this SECOND REPORT AND ORDER.1149
560. IT IS ORDERED that, pursuant to Sections 4(i), and 309(f) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309(f), Access 700, LLC is granted
special temporary authority for a period of 180 days, upon the effective date of this SECOND
REPORT AND ORDER, for frequencies 746.000-747.000 and 776.000-777.000 MHz in Major
Economic Areas 20, 26, 32, 37, 44, and 52. The Wireless Telecommunications Bureau is
delegated authority to issue such authorizations and to resolve any request for an extension of
such authorizations as specified in this SECOND REPORT AND ORDER.
561. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, 316(a) and Section 1.87 of the
Commission's rules, 47 C.F.R. § 1.87, the 700 MHz Guard Band A Block license for Station
WPRV447, licensed to PTPMS II Communications, L.L.C., WILL BE MODIFIED by changing
the authorized frequencies from 746.000-747.000 and 776.000-777.000 MHz, to 757.000758.000 and 787.000-788.000 MHz.
562. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 309, 316(a) and Section 1.87 of the
1148
Each licensee has waived its right to contest such license modifications under Section 316 of the Act. See
Access Spectrum/Pegasus July 6, 2007 Ex Parte; Access Spectrum/Pegasus July 13, 2007 Ex Parte; Access
Spectrum/Pegasus July 26, 2007 Ex Parte.
1149
Each licensee has agreed to surrender its 700 MHz Guard Band B Block licenses to the Commission. See
Access Spectrum/Pegasus July 13, 2007 Ex Parte; Access Spectrum/Pegasus July 26, 2007 Ex Parte.
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Commission's rules, 47 C.F.R. § 1.87, the 700 MHz Guard Band B Block licenses for Stations
WPRV448 and WPRV449, licensed to PTPMS II Communications, L.L.C., WILL BE
MODIFIED by changing the authorized frequencies from 762.000-764.000 and 792.000-794.000
MHz, to 761.000-763.000 and 791.000-793.000 MHz.
563. IT IS ORDERED that, pursuant to Sections 309 and 316 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 309, 316, the modifications of Stations WPRV447,
WPRV448, and WPRV449, licensed to PTPMS II Communications, L.L.C., specified in
paragraphs 561 and 562, supra, shall become final and effective 30 days from the effective date
of this SECOND REPORT AND ORDER if no protests are filed within that period. The
Wireless Telecommunications Bureau is delegated authority to resolve any such protests that
may arise and to modify such licenses as specified in this SECOND REPORT AND ORDER.
564. IT IS ORDERED, pursuant to Sections 1 and 4(i) of the Communications Act, as
amended, 47 U.S.C. §§ 151, 154(i), that on the effective date of this SECOND REPORT AND
ORDER, all 700 MHz Band public safety licensees, whether holding individual narrowband
authorizations or operating pursuant to a State License, SHALL PROVIDE the total number of
narrowband mobile and portable handsets and narrowband base stations in operation in channels
63 and 68, and the upper 1 megahertz of channels 64 and 69, as of 30 days after the date of
adoption of this SECOND REPORT AND ORDER, along with the related information specified
herein.
565. IT IS FURTHER ORDERED that the Wireless Telecommunications Bureau
SHALL SEND a copy of this SECOND REPORT AND ORDER, by certified mail, return
receipt requested, to Alfred Angelo, President, PTPMS II Communications, L.L.C., 340 North
Avenue East, Cranford, New Jersey 07016, and James H. Barker, Esq., 1001 Pennsylvania
Avenue, N.W. Suite 1300, Washington, DC 20004-2505.
566.
IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this SECOND REPORT AND
ORDER, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the
Small Business Administration.
567.
IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this
SECOND REPORT AND ORDER in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A
Comments and Reply Comments
List of Comments and Reply Comments
In the 700 MHz Further Notice
(WT Docket Nos. 06-150, 06-169, 03-264, 96-86, and PS Docket 06-229)
This is a list of parties who filed comments and reply comments within the designated comment
periods in the proceeding. This list does not include approximately 250,000 individual citizens
who filed brief comments both during and after the formal comment periods. Of these 250,000
comments, approximately 225,000 were compiled and filed as reply comments by MoveOn.org
Civic Action. Approximately 25,000 others were filed as “Email Comments” to the
Commission. 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 Independents (Central Wisconsin Communications, LLC D/B/A Solarus, Chariton
Valley Communication Corporation, Inc., Ct Cube, L.P. D/B/A West Central Wireless, Grand
River Communications, Inc., Home Telephone Company, Horry Telephone Cooperative, Inc.,
Interstate Enterprises, Ltd., Kanokla Telephone Association, Inc., Palmetto Rural Telephone
Cooperative, Inc., Siskiyou Telephone Company, And Southern Iowa 700, L.L.C) (“700 MHz
Independents”)
Access Spectrum LLC, Dominion 700 Inc., Harbor Guardband LLC, and Pegasus
Communications Corp. (“Access Spectrum/Pegasus”)
Ad Hoc Public Interest Spectrum Coalition (Consumer Federation of America, Consumers
Union, Educause, Free Press, Media Access Project, New America Foundation, Public
Knowledge, U.S. Public Interest Research Group) (“PISC”)
Alcatel-Lucent (“Alcatel-Lucent”)
Allcomm Technologies, Inc. (“Allcomm”)
Alltel Corporation (“Alltel”)
Aloha Partners, LP (“Aloha”)
American Petroleum Institute (“API”)
Arcadian Networks, Inc. (“Arcadian”)
Association of Public-Safety Communications Officials-International, Inc. (“APCO”)
AT&T Inc. (“AT&T”)
Blooston Rural Carriers (“Blooston”)
Cellular South Licenses, Inc. (“Cellular South”)
Centennial Communications Corp. (“Centennial”)
Center for Democracy & Technology (“CDT”)
City of Albuquerque (“Albuquerque”)
City of Fort Lauderdale, Florida (“Fort Lauderdale”)
City of Independence, Missouri (“City of Independence”)
City of Joplin (“Joplin”)
City of New York (“New York, NY”)
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City of Philadelphia (“Philadelphia”)
City of Tacoma, WA (“Tacoma, WA”)
Communications Service Inc. (“Communications Service Inc.”)
Computer & Communications Industry Association (“CCIA”)
Council Tree Communications, Inc. (“Council Tree”)
Counties of Foxcomm; Wisconsin Counties of Brown, Outgamie, Calumet and Winnebago
(“Wisconsin Counties”)
County of Lake - Ohio (“Lake, Ohio”)
CTIA - The Wireless Association (“CTIA”)
Cyren Call Communications Corporation (“Cyren Call”)
Dataradio Inc. (“Dataradio”)
Dekalb County Board of Education (“Dekalb Dept of Ed”)
Department of Emergency Management, City/County of San Francisco (“San Francisco
Department of Emergency Management”)
Dobson Communications Corporation (“Dobson”)
Embarq, CenturyTel, and Citizens/Frontier (Mid-Size ILECs) (“Embarq”)
Enterprise Wireless Alliance (“Enterprise”)
Ericsson Inc (“Ericsson”)
ETMC EMS (“ETMC EMS”)
Fargo (North Dakota) Metropolitan Statistical Area Police, Fire and EMT Agencies (“Fargo
MSA Police”)
Frontier Communications (“Frontier”)
Frontline Wireless LLC (“Frontline”)
GEOCommand, Inc. (“GEOCommand”)
Google Inc. (“Google”)
Grundy County Emergency Telephone System Board (“Grundy Co ETS”)
Hampton Roads Interoperable Communications Advisory Committee (“Hampton Roads
Interop”)
Hawaii Fire Chiefs (“Fire Fighters Hawaii”)
Horizon Telcom, Inc. (“Horizon”)
Idaho Fire Chiefs Association (“Fire Fighters Idaho”)
Jefferson County, Alabama (“Jefferson County, AL”)
Johnson County KS (“Johnson County, KS”)
L-3 Communications Corporation (“L-3”)
Lake County Sheriff’s Department (“Lake County Sheriff”)
Leap Wireless International, Inc. (“Leap”)
Louisiana Statewide Interoperability Executive Committee (“Louisiana Interoperability”)
M/A-COM, Inc. (“M/A-COM”)
Madison County Communication District (“MCCD”)
Massachusetts Chiefs of Police Association (“Police Chiefs Mass”)
McBride Spectrum Partners, LLC (“McBride”)
MetroPCS Communications, Inc. (“MetroPCS”)
Michael Gallagher & Larry Irving (“Gallagher & Irving”)
Mid-America Regional Council (“Mid-America Regional Council”)
Mike Jeffres, Chair Region 26 Nebraska 700 MHz RPC (“Region 26 (Nebraska)”)
Minnesota Region 22 700 MHz Public Safety Regional Planning Committee (“Region 22”)
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Missouri State Highway Patrol Communications Division (“Missouri Hwy Patrol”)
Mobile Satellite Ventures Subsidiary LLC (“MSV”)
Montana State Fire Chiefs Association (“Fire Fighters Montana”)
Motorola, Inc. (“Motorola”)
Mower County, Minnesota Office of the Sheriff (“Mower County Sheriff”)
Nassau County (NY) Fire/Rescue Services (“Nassau County”)
National Association of EMS Physicians (“EMS Physicians”)
National Cable & Telecommunications Association (“NCTA”)
National Emergency Number Association (“NENA”)
National Public Safety Telecommunications Council (“NPSTC”)
National Rural Electric Cooperative Association (“NRECA”)
National Telecommunications Cooperative Association (“NTCA”)
National Volunteer Fire Council (“NVFC”)
NATOA, NACO, USCM and NLC (“NATOA”)
Nevada (Region 27) 700 MHz Regional Planning Committee (“Region 27 (Nevada)”)
Northrop Grumman Information Technology, Inc. (“Northrop Grumman”)
Office of Advocacy, U.S. Small Business Administration (“SBA”)
Office of the Hennepin County Sheriff (“Hennepin County Sheriff”)
Ohio Region 33 700 MHz. Planning Committee (“Region 33 (Ohio)”)
Ohio Statewide Interoperability Executive Committee (“Ohio Interoperability Council”)
Orange County Sheriff’s Department (“Orange County Sheriff”)
Oregon Fire Chiefs Association (“Fire Fighters Oregon”)
Police Executive Research Forum (“Police Executive Research Forum”)
Professional Fire Fighters of Massachusetts (“Fire Fighters Mass”)
PTPMS II Communications, L.L.C. (“PTPMS”)
Public Utility District #1 of Snohomish County (“Snohomish PUD”)
QUALCOMM Incorporated (“Qualcomm”)
Radiofone Nationwide PCS, L.L.C. (“RadioFone”)
RCC Consultants, Inc. (“RCC”)
Region 9 Florida, Regional Planning Committee (“Region 9 (Florida)”)
Region 10 (Georgia) 700 MHz Public Safety Regional Planning Committee (“Region 10
(Georgia)”)
Region 13 (Illinois) 700 MHz Public Safety Regional Planning Committee (“Region 13
(Illinois)”)
Region 14 700 MHz Regional Planning Committee (“Region 14 (Indiana)”)
Region 16 (Kansas) Regional Planning Committee (“Region 16 (Kansas)”)
Region 40 Regional Planning Committee (“Region 40 (Texas North)”)
Region 43 Regional Planning Committee (“Region 43 (Washington)”)
Rehabilitation Engineering Research Center for Wireless Technology (“Rehabilitation
Engineering”)
Rick Neathery (“Neathery”)
Rural Cellular Association (“RCA”)
Rural Telecommunications Group, Inc. (“RTG”)
San Diego County - Imperial County, CA Regional Communications System (“San Diego
Regional System”)
Satellite Industry Association (“SIA”)
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Scott D. Reiter (“Reiter”)
Sharp Communication, Inc. (“Sharp”)
Sherburne County Emergency Services (“Sherburne County”)
SpectrumCo LLC (“SpectrumCo”)
Sprint Nextel Corporation (“Sprint Nextel”)
State of California (“California”)
State of Hawaii, Department of Accounting and General Services (“Hawaii”)
State of Ohio MARCS Program (“Ohio MARCS”)
Telecommunications Industry Association (“TIA”)
Texas Statewide Interoperability Executive Committee (“Texas Interoperability”)
The Coalition for 4G in America (Access Spectrum LLC, The DIRECTV Group, Inc., EchoStar
Satellite, L.L.C., Google, Inc., Intel Corporation, Skype Communications S.A.R.L., YAHOO!
Inc. (“4G Coalition”)
The Wireless Internet Service Provider Association (“WISPA”)
Union Telephone Company (“Union”)
United States Cellular Corporation (“U.S. Cellular”)
Vanu, Inc. (“Vanu”)
Verizon Wireless (“Verizon”)
Virginia Fire Chiefs Association (“Fire Fighters Virginia”)
Western Fire Chiefs Association - President Jeff Johnson (“Fire Fighters Western”)
Wirefree Partners III, LLC (“Wirefree Partners”)
Wireless Communications Association International, Inc. (“WCA”)
Wisconsin State Patrol (“Wisconsin State Patrol”)
York County, SC (“York County, SC”)
Reply Comments
Access Spectrum, Dominion 700, Harbor Guardband, and Pegasus Communications (“Access
Spectrum/Pegasus”)
Alcatel-Lucent (“Alcatel”)
Aloha Partners, L.P. (“Aloha”)
Arcadian Networks (“Arcadian”)
Association of Public-Safety Communications Officials-International, Inc. (“APCO”)
AT&T Inc. (“AT&T”)
Barat Wireless, L.P. and Carroll Wireless, L.P. (“Barat”)
Cellular South Licenses, Inc. (“Cellular South”)
City of El Paso/Yvonne Bonnie V. Guinn (“El Paso”)
Council Tree Communications, Inc. (“Council Tree”)
CTIA - The Wireless Association (“CTIA”)
Cyren Call Communications Corporation (“Cyren Call”)
Dobson Communications Corporation (“Dobson”)
Fire Fighters Association District of Columbia (“Fire Fighters DC”)
Frontline Wireless LLC (“Frontline”)
Hawaii Fire Fighters Association (“Fire Fighters Hawaii”)
L-3 Communications Corporation (“L-3”)
Leap Wireless International, Inc. (“Leap”)
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Lisa K. Thompson - Arlington County, VA (“Arlington County, VA”)
M/A-COM, Inc. (“M/A-COM”)
Maryland Fire Chiefs Association (“Fire Fighters Maryland”)
MetroPCS Communications, Inc. (“MetroPCS”)
Metropolitan Emergency Services Board (“Metropolitan Emergency Services Board”)
Michigan Professional Firefighters Union (“Fire Fighters Michigan”)
Missouri State Highway Patrol (“Missouri Hwy “)
Mobile Satellite Ventures Subsidiary LLC (“MSV”)
Montana State Fire Chiefs' Association (“Fire Fighters Montana”)
Motorola, Inc. (“Motorola”)
MoveOn.org Civic Action (“MoveOn”)
MoveOn.Org/40 Technology & Civic Leaders (“MoveOn with 40 tech”)
National Emergency Number Association (“NENA”)
National Public Safety Telecommunications Council (“NPSTC”)
National Telecommunications Cooperative Association (“NTCA”)
NATOA, NACO, NLC, USCM (“NATOA”)
Northrop Grumman Information Technology, Inc (“Northrup Grumman”)
NYS Professional Fire Fighters Assoc. (“Fire Fighters NY”)
Office of the Chief Technology Officer -- District of Columbia (“DC Govt”)
Oregon State Fire Fighters Council (“Fire Fighters Oregon”)
Professional Fire Fighters of Georgia (“Fire Fighters Georgia”)
Professional Fire Fighters of Idaho (“Fire Fighters Idaho”)
Professional Firefighters Union of Indiana, Inc. (“Fire Fighters Indiana”)
Puerto Rico Telephone Company, Inc. (“Puerto Rico Tel”)
QUALCOMM Incorporated (“Qualcomm”)
RCC Consultants, Inc., et al (“RCC”)
Rural Cellular Association (“RCA”)
Rural Telecommunications Group, Inc. (“RTG”)
State of California (“California”)
Stelera Wireless, LLC (“Stelera”)
TCA, Inc. (“TCA”)
Tennessee Professional Firefighters Association (“Fire Fighters Tenn”)
Texas State Association of Firefighters (“Fire Fighters Texas”)
The Blooston Rural Carriers (“Blooston”)
The Greater Boston Police Council (“Police Boston”)
The Spectrum Coalition for Public Safety (“SCPS”)
The Wireless Internet Service Providers Association (“WISPA”)
T-Mobile USA, Inc. (“T-Mobile”)
Union Telephone Company (“Union”)
United States Cellular Corporation (“USCC”)
USA Broadband, LLC (“USA Broadband”)
Verizon Wireless (“Verizon Wireless”)
Vermont Department of Public Service, Vermont Public Service Board, Vermont Office of the
Chief Information Officer, North Dakota Public Service Commission, Nebraska Public Service
Commission, ConnectME Authority, Maine Office of the Chief Information Officer (“Vermont
Department of Public Safety, et al.”)
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Washington State Council of Fire Fighters (“Fire Fighters Washington”)
Comments and Reply Comments to Google Public Notice
List of Comments and Reply Comments
In the 700 MHz Commercial Services and Guard Band Proceedings
(WT Docket No. 06-150 and WT Docket No. 06-169)
Comments
AT&T Inc. (“AT&T”)
Computer & Communications Industry Association (“CCIA”)
CTIA - The Wireless Association (“CTIA”)
Frontline Wireless LLC (“Frontline”)
MetroPCS Communications, Inc. (“MetroPCS”)
National Public Safety Telecommunications Council (“NPSTC”)
QUALCOMM Incorporated (“Qualcomm”)
Rural Telecommunications Group, Inc. (“RTG”)
Vanu, Inc. (“Vanu”)
Verizon Wireless (“Verizon Wireless”)
Reply Comments
MetroPCS Communications, Inc. (“MetroPCS”)
National Emergency Number Association (“NENA”)
QUALCOMM Incorporated (“Qualcomm”)
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APPENDIX B
Final Rules
Parts 0, 1, 2, 27 and 90 of Title 47 of the Code of Federal Regulations are amended as
follows:
1. The authority citation for Part 0 continues to read as follows:
AUTHORITY: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.
2. Section 0.181 is amended by adding a new paragraph (k) to read as follows:
§ 0.181 The Defense Commissioner.
*****
(k) To decide, in response to a request by the Public Safety Broadband Licensee whether
circumstances warrant emergency priority access by first responder public safety entities to
the Upper 700 MHz D Block license spectrum.
3. The authority citation for Part 1 continues to read as follows:
AUTHORITY: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r),
and 309.
4. Section 1.9005 is amended by revising paragraph (k) to read as follows:
§ 1.9005 Included services.
*****
(k) The Wireless Communications Service in the 746 – 763 MHz, 775 – 793 MHz, and
805 – 806 MHz bands (part 27 of this chapter);
*****
5. Section 1.946 is amended by revising paragraph (c) to read as follows:
§ 1.946 Construction and coverage requirements.
*****
(c) Termination of authorizations. If a licensee fails to commence service or operations
by the expiration of its construction period or to meet its coverage or substantial service
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obligations by the expiration of its coverage period, its authorization terminates automatically
(in whole or in part as set forth in the service rules), without specific Commission action, on
the date the construction or coverage period expires.
*****
6. Section 1.955 is amended by revising paragraph (a)(2) to read as follows:
§ 1.955 Terminations of authorizations.
(a) * * *
(1) * * *
(2) Failure to meet construction or coverage requirements. Authorizations
automatically terminate (in whole or in part as set forth in the service rules), without specific
Commission action, if the licensee fails to meet applicable construction or coverage
requirements. See § 1.946(c) of this part.
*****
7. Section 1.2105 is amended by revising paragraph (c)(6) to read as follows:
§ 1.2105 Bidding application and certification procedures; prohibition of collusion.
*****
(c) * * *
(6) Any applicant that makes or receives a communication of bids or bidding strategies
prohibited under paragraph (c)(1) of this section shall report such communication in writing
to the Commission immediately, and in no case later than five business days after the
communication occurs. An applicant’s obligation to make such a report continues until the
report has been made. Such reports shall be filed with the Office of the Secretary, and a copy
shall be sent to the Chief of the Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau.
*****
8. The authority citation for Part 2 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
9. Section 2.103 is amended by revising paragraphs (a) and (b) and adding a new paragraph (c)
to read as follows:
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§ 2.103 Federal use of non-Federal frequencies.
(a) Federal stations may be authorized to use non-Federal frequencies in the bands above
25 MHz (except the 763-775 MHz and 793-805 MHz public safety bands) if the Commission
finds that such use is necessary for coordination of Federal and non-Federal activities:
Provided, however, that:
*****
(b) Federal stations may be authorized to use channels in the 769-775 MHz, 799-805
MHz and 4940-4990 MHz public safety bands with non-Federal entities if the Commission
finds such use necessary; where:
*****
(c) Federal stations may be authorized to use channels in the 763-768 MHz and 793-798
MHz public safety bands with non-Federal entities where:
(1) The Federal entity obtains the prior approval of the Public Safety Broadband
Licensee (and such approval granted by the Public Safety Broadband Licensee is consistent
with the terms and conditions of the Network Sharing Agreement under Section 90.1406);
and
(2) Federal operation is in accordance with the Commission’s Rules governing operation
of this band and conforms to any conditions agreed upon by the Commission and NTIA.
10. 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.
11. Section 27.1 is amended by revising paragraph (b)(2) to read as follows:
§ 27.1 Basis and purpose.
*****
(b) * * *
(2) 746–763 MHz, 775–793 MHz, and 805-806 MHz.
*****
12. Section 27.2 is amended by revising paragraph (b) to read as follows:
§ 27.2 Permissible communications.
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*****
(b) 775–776 MHz and 805-806 MHz bands. Operators in the 775–776 MHz and 805–806
MHz bands may not employ a cellular system architecture. A cellular system architecture is
defined, for purposes of this part, as one that consists of many small areas or cells (segmented
from a larger geographic service area), each of which uses its own base station, to enable
frequencies to be reused at relatively short distances.
*****
13. Section 27.4 is amended by adding the following definitions in alphabetical order to read as
follows:
§ 27.4 Terms and definitions
*****
700 MHz Public/Private Partnership. The public/private partnership established for the
development and operation of a nationwide, shared interoperable wireless broadband
network operating on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz and
793-798 MHz bands in accordance with the Commission’s rules.
*****
Network Assets Holder. The Network Assets Holder is a Special Purpose Bankruptcy
Remote Entity that is formed to hold the assets of the shared wireless broadband network
associated with the 700 MHz Public/Private Partnership, in accordance with the terms of the
Network Sharing Agreement, such other agreements as the Commission may require or
allow, and the Commission’s rules.
*****
Network Sharing Agreement (NSA). An agreement entered into between the winning
bidder, 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 the 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.
*****
Operating Company. The Operating Company is a Special Purpose Bankruptcy Remote
Entity that is formed to build and operate the shared wireless broadband network associated
with the 700 MHz Public/Private Partnership, in accordance with the terms of the Network
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Sharing Agreement, such other agreements as the Commission may require or allow, and the
Commission’s rules.
*****
Public Safety Broadband License. The Public Safety Broadband License authorizes
public safety broadband services in the 763-768 MHz and 793-798 MHz bands.
*****
Public Safety Broadband Licensee. The licensee of the Public Safety Broadband License
in the 763-768 MHz and 793-798 MHz bands.
*****
Shared Wireless Broadband Network. Wireless broadband network associated with the
700 MHz Band Public/Private Partnership that operates on the 758-763 MHz and 788-793
MHz bands and the 763-768 MHz and 793-798 MHz bands pursuant to the terms of the
Network Sharing Agreement, such other agreements as the Commission may require or
allow, and the Commission’s rules.
*****
Special Purpose Bankruptcy Remote Entity. A “special purpose entity” is a legal entity
created for a special limited purpose, in this context primarily to hold the Upper 700 MHz D
Block license or the network assets, or to conduct the construction or operation of the shared
wireless broadband network associated with the 700 MHz Public/Private Partnership. A
special purpose entity is “bankruptcy remote” if that entity is unlikely to become insolvent as
a result of its own activities, is adequately insulated from the consequences of a related
party’s insolvency, and contains certain characteristics which enhance the likelihood that it
will not become the subject of an insolvency proceeding.
*****
Upper 700 MHz D Block license. The Upper 700 MHz D Block license is the nationwide
license associated with the 758-763 MHz and 788-793 MHz bands.
*****
Upper 700 MHz D Block licensee. The Special Purpose Bankruptcy Remote Entity to
which the Upper 700 MHz D Block license must be transferred upon execution of the
Network Sharing Agreement. References herein to the rights and obligations of the Upper
700 MHz D Block licensee include the exercise or discharge of such rights or obligations,
respectively, by related entities as are provided for in the NSA or otherwise as authorized by
the Commission.
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*****
14. Section 27.5 is amended by revising paragraph (b) to read as follows:
§ 27.5 Frequencies.
*****
(b) 746–763 MHz, 775–793 MHz, and 805-806 MHz bands. The following frequencies
are available for licensing pursuant to this part in the 746-763 MHz, 775-793 MHz, and 805806 MHz bands:
(1) Two paired channels of 1 megahertz each are available for assignment in Block A in
the 757-758 MHz and 787-788 MHz bands.
(2) Two paired channels of 1 megahertz each are available for assignment in Block B in
the 775-776 MHz and 805-806 MHz bands.
(3) Two paired channels of 11 megahertz each are available for assignment in Block C in
the 746-757 MHz and 776-787 MHz bands. In the event that no licenses for two channels in
this Block C are assigned based on the results of the first auction in which such licenses were
offered because the auction results do not satisfy the applicable reserve price, the spectrum in
the 746-757 MHz and 776-787 MHz bands will instead be made available for assignment at a
subsequent auction as follows:
(i) Two paired channels of 6 megahertz each available for assignment in Block C1 in the
746-752 MHz and 776-782 MHz bands.
(ii) Two paired channels of 5 megahertz each available for assignment in Block C2 in the
752-757 MHz and 782-787 MHz bands.
(4) Two paired channels of 5 megahertz each are available for assignment in Block D in
the 758-763 MHz and 788-793 MHz bands.
*****
15. Section 27.6 is amended by revising paragraphs (a), (b), (c), and (e) 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), 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
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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. The nationwide area is composed of the contiguous 48 states, Alaska,
Hawaii, the Gulf of Mexico, and the U.S. territories. 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. * * *
*****
(b) 746–763 MHz, 775–793 MHz, and 805-806 MHz bands. WCS service areas for the
746-763 MHz, 775-793 MHz, and 805-806 MHz bands are as follows.
(1) Service areas for Block A in the 757-758 MHz and 787-788 MHz bands and Block B
in the 775-776 MHz and 805-806 MHz bands are based on Major Economic Areas (MEAs),
as defined in paragraphs (a)(1) and (a)(2) of this section.
(2) Service areas for Block C in the 746-757 MHz and 776-787 MHz bands are based on
Regional Economic Area Groupings (REAGs) as defined by paragraph (a) of this section. In
the event that no licenses with respect to service areas for Block C in the 746-757 MHz and
776-787 MHz bands are assigned based on the results of the first auction in which such
licenses are offered because the auction results do not satisfy the applicable reserve price,
then service areas for the spectrum at 746-757 MHz and 776-787 MHz will instead be
available for assignment as follows:
(i) Service areas for Block C1 in the 746-752 MHz and 776-782 MHz bands are based
on Economic Areas (EAs) as defined in paragraph (a) of this section.
(ii) Service areas for Block C2 in the 752-757 MHz and 782-787 MHz bands are based
on Regional Economic Area Groupings (REAGs) as defined by paragraph (a) of this section.
(3) Service area for Block D in the 758-763 MHz and 788-793 MHz bands is a
nationwide area as defined in paragraph (a)(1) of this section.
(c) 698–746 MHz band. WCS service areas for the 698-746 MHz band are as follows.
(1) Service areas for Block A in the 698-704 MHz and 728-734 MHz bands and Block E
in the 722-728 MHz band are based on Economic Areas (EAs) as defined in paragraph (a) of
this section.
(2) Service areas for Block B in the 704-710 MHz and 734-740 MHz bands and Block C
in the 710-716 MHz and 740-746 MHz bands are based on cellular markets comprising
Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs) as defined by Public
Notice Report No. CL–92–40 “Common Carrier Public Mobile Services Information,
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Cellular MSA/RSA Markets and Counties,” dated January 24, 1992, DA 92–109, 7 FCC Rcd
742 (1992), with the following modifications:
(i) The service areas of cellular markets that border the U.S. coastline of the Gulf of
Mexico extend 12 nautical miles from the U.S. Gulf coastline.
(ii) The service area of cellular market 306 that comprises the water area of the Gulf of
Mexico extends from 12 nautical miles off the U.S. Gulf coast outward into the Gulf.
(3) Service areas for Block D in the 716-722 MHz band are based on Economic Area
Groupings (EAGs) as defined by the Federal Communications Commission. See 62 FR
15978 (April 3, 1997) extended with the Gulf of Mexico. See also paragraphs (a)(1) and
(a)(2) of this section and 62 FR 9636 (March 3, 1997), in which the Commission created an
additional four economic area-like areas for a total of 176. Maps of the EAGs and the
Federal Register Notice that established the 172 Economic Areas (EAs) are available for
public inspection and copying at the Reference Center, Room CY A-257, 445 12th St., S.W.,
Washington, DC 20554. These maps and data are also available on the FCC website at
www.fcc.gov/oet/info/maps/areas/.
(i) There are 6 EAGs, which are composed of multiple EAs as defined in the table
below:
Economic
Area
Groupings
EAG001
EAG002
EAG003
Name
Economic Areas
Northeast
Mid-Atlantic
Southeast
EAG004
EAG005
Great Lakes
Central/Mounta
in
Pacific
1-11, 54
12-26, 41, 42, 44-53, 70
27-40, 43, 69, 71-86, 88-90, 95, 96, 174,
176(part)
55-68, 97, 100-109
87, 91-94, 98, 99, 110-146, 148, 149, 152,
154-159, 176(part)
147, 150, 151, 153, 160-173, 175
EAG006
Note 1 to paragraph (c)(3)(i): Economic Area Groupings are defined by the Federal
Communications Commission; see 62 FR 15978 (April 3, 1997) extended with the Gulf of
Mexico.
Note 2 to paragraph (c)(3)(i): Economic Areas are defined by the Regional Economic
Analysis Division, Bureau of Economic Analysis, U.S. Department of Commerce February
1995 and extended by the Federal Communications Commission, see 62 FR 9636 (March 3,
1997).
(ii) For purposes of paragraph (c)(3)(i) of this section, EA 176 (the Gulf of Mexico) will
be divided between EAG003 (the Southeast EAG) and EAG005 (the Central/Mountain EAG)
in accordance with the configuration of the Eastern/ Central and Western Planning Area
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established by the Mineral Management Services Bureau of the Department of the Interior
(MMS). That portion of EA 176 contained in the Eastern and Central Planning Areas as
defined by MMS will be included in EAG003; that portion of EA 176 contained in the
Western Planning Area as defined by MMS will be included in EAG005. Maps of these areas
may be found on the MMS website. www.gomr.mms.gov/homepg/offshore/offshore.html.
*****
(e) The paired 1392–1395 and 1432–1435 MHz bands. Service areas for the paired
1392–1395 and 1432–1435 MHz bands are as follows. Service areas for Block A in the
1392–1393.5 MHz and 1432–1433.5 MHz bands and Block B in the 1393.5–1395 MHz and
1433.5–1435 MHz bands are based on Economic Area Groupings (EAGs) as defined in
paragraph (c)(3) of this section.
*****
16. Section 27.11 is amended by revising paragraphs (c) and (d) to read as follows:
§ 27.11 Initial authorization.
*****
(c) 746–763 MHz, 775–793 MHz, and 805-806 MHz bands. Initial authorizations for the
746–763 MHz, 775–793 MHz, and 805-806 MHz bands shall be for paired channels of 1, 5,
6, or 11 megahertz of spectrum in accordance with §27.5(b).
(1) Authorizations for Block A, consisting of two paired channels of 1 megahertz each,
will be based on those geographic areas specified in §27.6(b)(1).
(2) Authorizations for Block B, consisting of two paired channels of 1 megahertz each,
will be based on those geographic areas specified in §27.6(b)(1).
(3) Authorizations for Block C, consisting of two paired channels of 11 megahertz each,
will be based on those geographic areas specified in §27.6(b)(2). In the event that no licenses
granting authorizations for Block C, consisting of two paired channels of 11 megahertz each,
are assigned based on the results of the first auction in which such licenses are offered
because the auction results do not satisfy the applicable reserve price, then the authorizations
for the spectrum in the 746-757 MHz and 776-787 MHz bands will instead be as follows:
(i) Authorizations for Block C1, consisting of two paired channels of 6 megahertz each
in the 746-752 MHz and 776-782 MHz bands, will be based on those geographic areas
specified in §27.6(b)(2)(i).
(ii) Authorizations for Block C2, consisting of two paired channels of 5 megahertz each
in the 752-757 MHz and 782-787 MHz bands, will be based on those geographic areas
specified in §27.6(b)(2)(ii).
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(4) The authorization for Block D, consisting of two paired channels of 5 megahertz
each, will be based on the geographic area specified in §27.6(b)(3).
(d) 698–746 MHz band. Initial authorizations for the 698–746 MHz band shall be for 6
or 12 megahertz of spectrum in accordance with §27.5(c).
(1) Authorizations for Block A, consisting of two paired channels of 6 megahertz each,
will be based on those geographic areas specified in §27.6(c)(1).
(2) Authorizations for Block B, consisting of two paired channels of 6 megahertz each,
will be based on those geographic areas specified in §27.6(c)(2).
(3) Authorizations for Block C, consisting of two paired channels of 6 megahertz each,
will be based on those geographic areas specified in §27.6(c)(2).
(4) Authorizations for Block D, consisting of an unpaired channel block of 6 megahertz,
will be based on those geographic areas specified in §27.6(c)(3).
(5) Authorizations for Block E, consisting of an unpaired channel block of 6 megahertz,
will be based on those geographic areas specified in §27.6(c)(1).
*****
17. Section 27.13 is amended by revising paragraph (b) to read as follows:
§ 27.13 License Period.
*****
(b) 698-763 MHz and 776-793 MHz bands. Initial authorizations for the 698-763 MHz
and 776-793 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. * * *
18. Section 27.14 is amended by revising the title and paragraph (a), redesignating paragraph (e)
as paragraph (f), and by adding new paragraphs (e), (g), (h), (i), (j), (k), (l), (m), (n) to read as
follows:
§ 27.14 Construction requirements; Criteria for Renewal.
(a) AWS and WCS licensees, with the exception of WCS licensees holding
authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the
704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, Block C in the
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746-757 MHz and 776-787 MHz, and Block D in the 758-763 MHz and 788-793 MHz bands
must, as a performance requirement, make a showing of "substantial service" in their license
area within the prescribed license term set forth in § 27.13. “Substantial service is defined as
service which is sound, favorable and substantially above a level of mediocre service which
just might minimally warrant renewal. Failure by any licensee to meet this requirement will
result in forfeiture of the license and the licensee will be ineligible to regain it.
*****
(e) Comparative renewal proceedings do not apply to WCS licensees holding
authorizations for the 698-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands.
These licensees must file a renewal application in accordance with the provisions set forth in
§ 1.949, 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.
*****
(g) WCS licensees holding EA authorizations for Block A in the 698-704 MHz and 728734 MHz bands, cellular market authorizations for Block B in the 704-710 MHz and 734-740
MHz bands, and EA authorizations for Block E in the 722-728 MHz band, if the results of
the first auction in which licenses for such authorizations are offered satisfy the reserve price
for the applicable block, shall provide signal coverage and offer service over at least 35
percent of the geographic area of each of their license authorizations no later than February
17, 2013 (or within four years of initial license grant if the initial authorization in a market is
granted after February 17, 2009), and shall provide such service over at least 70 percent of
the geographic area of each of these authorizations by the end of the license term. In
applying these geographic benchmarks, licensees are not required to include land owned or
administered by government as a part of the relevant service area. Licensees may count
covered government land for purposes of meeting their geographic construction benchmark,
but are required to add the covered government land to the total geographic area used for
measurement purposes. Licensees are required to include those populated lands held by
tribal governments and those held by the Federal Government in trust or for the benefit of a
recognized tribe.
(1) If an EA or CMA licensee holding an authorization in these particular blocks fails to
provide signal coverage and offer service over at least 35 percent of the geographic area of its
license authorization by no later than February 17, 2013 (or within four years of initial
license grant, if the initial authorization in a market is granted after February 17, 2009), the
term of that license authorization will be reduced by two years and such licensee may be
subject to enforcement action, including forfeitures. In addition, such an EA or CMA
licensee may lose authority to operate in part of the remaining unserved areas of the license.
(2) If any such EA or CMA licensee fails to provide signal coverage and offer service to
at least 70 percent of the geographic area of its license authorization by the end of the license
term, that licensee’s authorization will terminate automatically without Commission action
for those geographic portions of its license in which the licensee is not providing service, and
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those unserved areas will become available for reassignment by the Commission. Such
licensee may also be subject to enforcement action, including forfeitures. In addition, an EA
or CMA licensee that provides signal coverage and offers service at a level that is below the
end-of-term benchmark may be subject to license termination. In the event that a licensee’s
authority to operate in a license area terminates automatically without Commission action,
such areas will become available for reassignment pursuant to the procedures in paragraph (j)
of this subsection.
(3) For licenses under paragraphs (g), (h), and (i), the geographic service area to be made
available to new entrants must include a contiguous area of at least 130 square kilometers (50
square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50
square miles) will not be deemed unserved.
(h) WCS licensees holding authorizations for Block C in the 746-757 MHz and 776-787
MHz bands shall provide signal coverage and offer service over at least 40 percent of the
population in each EA comprising the REAG license area no later than February 17, 2013 (or
within four years of initial license grant, if the initial authorization in a market is granted
after February 17, 2009), and shall provide such service over at least 75 percent of the
population of each of these EAs by the end of the license term. For purposes of compliance
with this requirement, licensees should determine population based on the most recently
available U.S. Census Data.
(1) If a licensee holding a Block C authorization fails to provide signal coverage and
offer service over at least 40 percent of the population in each EA comprising the REAG
license area by no later than February 17, 2013 (or within four years of initial license grant if
the initial authorization in a market is granted after February 17, 2009), the term of the
license authorization will be reduced by two years and such licensee may be subject to
enforcement action, including forfeitures. In addition, a licensee that provides signal
coverage and offers service at a level that is below the interim benchmark may lose authority
to operate in part of the remaining unserved areas of the license.
(2) If a licensee holding a Block C authorization fails to provide signal coverage and
offer service over at least 75 percent of the population in any EA comprising the REAG
license area by the end of the license term, for each such EA that licensee’s authorization will
terminate automatically without Commission action for those geographic portions of its
license in which the licensee is not providing service. Such licensee may also be subject to
enforcement action, including forfeitures. In the event that a licensee’s authority to operate
in a license area terminates automatically without Commission action, such areas will
become available for reassignment pursuant to the procedures in paragraph (j) of this
subsection. In addition, a REAG licensee that provides signal coverage and offers service at
a level that is below the end-of-term benchmark within any EA may be subject to license
termination within that EA.
(i) WCS licensees holding EA authorizations for Block A in the 698-704 MHz and 728734 MHz bands, cellular market authorizations for Block B in the 704-710 MHz and 734-740
MHz bands, and EA authorizations for Block E in the 722-728 MHz band, if the results of
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the first auction in which licenses for such authorizations in Blocks A, B, and E are offered
do not satisfy the reserve price for the applicable block, as well as EA authorizations for
Block C1 in the 746-752 MHz and 776-782 MHz bands and REAG authorizations for Block
C2 in the 752-757 MHz and 782-787 MHz bands, are subject to the following:
(1) If a licensee holding a cellular market area or EA authorization subject to this
paragraph (i) fails to provide signal coverage and offer service over at least 40 percent of the
population in its license area by no later than February 17, 2013 (or within four years of
initial license grant, if the initial authorization in a market is granted after February 17,
2009), the term of that license authorization will be reduced by two years and such licensee
may be subject to enforcement action, including forfeitures. In addition, such licensee that
provides signal coverage and offers service at a level that is below the interim benchmark
may lose authority to operate in part of the remaining unserved areas of the license. For
purposes of compliance with this requirement, licensees should determine population based
on the most recently available U.S. Census Data.
(2) If a licensee holding a cellular market area or EA authorization subject to this
paragraph (i) fails to provide signal coverage and offer service over at least 75 percent of the
population in its license area by the end of the license term, that licensee’s authorization will
terminate automatically without Commission action for those geographic portions of its
license in which the licensee is not providing service, and those unserved areas will become
available for reassignment by the Commission. Such licensee may also be subject to
enforcement action, including forfeitures. In the event that a licensee’s authority to operate in
a license area terminates automatically without Commission action, such areas will become
available for reassignment pursuant to the procedures in paragraph (j) of this subsection. In
addition, such a licensee that provides signal coverage and offers service at a level that is
below the end-of-term benchmark may be subject to license termination. For purposes of
compliance with this requirement, licensees should determine population based on the most
recently available U.S. Census Data.
(3) Licensee’s holding an authorization in Block C2 will be subject to the requirements
in paragraph (h) of this subsection.
(j) In the event that a licensee’s authority to operate in a license area terminates
automatically under subsections (g), (h), or (i) of this section, such areas will become
available for reassignment pursuant to the following procedures:
(1) The Wireless Telecommunications Bureau is delegated authority to announce by
public notice that these license areas will be made available and establish a 30-day window
during which third parties may file license applications to serve these areas. During this 30day period, licensees that had their authority to operate terminate automatically for unserved
areas may not file applications to provide service to these areas. Applications filed by third
parties that propose areas overlapping with other applications will be deemed mutually
exclusive, and will be resolved through an auction. The Wireless Telecommunications
Bureau, by public notice, may specify a limited period before the filing of short-form
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applications (FCC Form 175) during which applicants may enter into a settlement to resolve
their mutual exclusivity, subject to the provisions of § 1.935.
(2) Following this 30-day period, the original licensee and third parties can file license
applications for remaining unserved areas where licenses have not been issued or for which
there are no pending applications. If the original licensee or a third party files an application,
that application will be placed on public notice for 30 days. If no mutually exclusive
application is filed, the application will be granted, provided that a grant is found to be in the
public interest. If a mutually exclusive application is filed, it will be resolved through an
auction. The Wireless Telecommunications Bureau, by public notice, may specify a limited
period before the filing of short-form applications (FCC Form 175) during which applicants
may enter into a settlement to resolve their mutual exclusivity, subject to the provisions of §
1.935.
(3) The licensee will have one year from the date the new license is issued to complete
its construction and provide signal coverage and offer service over 100 percent of the
geographic area of the new license area. If the licensee fails to meet this construction
requirement, its license will automatically terminate without Commission action and it will
not be eligible to apply to provide service to this area at any future date.
(k) WCS licensees with authorizations in the spectrum blocks enumerated in paragraphs
(g), (h), or (i), including any licensee that obtained its license pursuant to the procedures set
forth in subsection (j) shall demonstrate compliance with performance requirements by filing
a construction notification with the Commission, within 15 days of the expiration of the
relevant benchmark, in accordance with the provisions set forth in § 1.946(d). The licensee
must certify whether it has met the relevant performance requirement. All licensees must file
a description and certification of the areas for which they are providing service. The
construction notifications must include electronic coverage maps, supporting technical
documentation and any other information as the Wireless Telecommunications Bureau may
prescribe by Public Notice.
(l) WCS licensees with authorizations in the spectrum blocks enumerated in paragraphs
(g), (h), or (i), excluding any licensee that obtained its license pursuant to the procedures set
forth in subsection (j), shall file interim reports with the Commission that provide the
Commission, at a minimum, with information concerning the status of their efforts to meet
the performance requirements applicable to their authorizations in such spectrum blocks and
the manner in which that spectrum is being utilized. The information to be reported will
include the date the license term commenced, a description of the steps the licensee has taken
toward meeting its construction obligations in a timely manner, including the technology or
technologies and service(s) being provided, and the areas within their license areas in which
those services are available. These licensees shall file their first interim report with the
Commission no later than February 17, 2011 and no sooner than 30 days prior to this date.
Licensees that meet their interim benchmarks shall file a second interim report with the
Commission no later than February 17, 2016 and no sooner than 30 days prior to this date.
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Licensees that do not meet their interim benchmarks shall file their second interim report no
later than on February 17, 2015 and no sooner than 30 days prior to this date.
(m) The WCS licensee holding the authorization for the D Block at 758-763 MHz and
788-793 MHz (the Upper 700 MHz D Block licensee) shall comply with the following
construction requirements.
(1) The Upper 700 MHz D Block licensee shall provide a signal coverage and offer
service over at least 75 percent of the population of the nationwide Upper 700 MHz D Block
license area within four years from February 17, 2009, 95 percent of the population of the
nationwide license area within seven years, and 99.3 percent of the population of the
nationwide license area within ten years.
(2) The Upper 700 MHz D Block licensee may modify, to a limited degree, its
population-based construction benchmarks with the agreement of the Public Safety
Broadband Licensee and the prior approval of the Commission, where such a modification
would better serve to meet commercial and public safety needs.
(3) The Upper 700 MHz D Block licensee shall meet the population benchmarks based
on a performance schedule specified in the Network Sharing Agreement, taking into account
performance pursuant to §27.1327 as appropriate under that rule, and using the most recently
available U.S. Census Data. The network and signal levels employed to meet these
benchmarks must be adequate for public safety use, as defined in the Network Sharing
Agreement, and the services made available must include those appropriate for public safety
entities that operate in those areas. The 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 D Block licensee jointly determine, in consultation with a
relevant community, that such additional coverage will not provide significant public benefit.
(4) 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 relevant benchmark, in accordance with the provisions set
forth in § 1.946(d). The licensee must certify whether it has met the relevant 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:
(i) 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
service it is providing for each area, and the type of technology it is utilizing to provide this
service.
(ii) 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.
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(n) 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 § 27.14.
*****
19. Section 27.15 is amended by revising and redesignating paragraphs (d)(1) and (d)(2) as
(d)(1)(i) and (d)(2)(i), respectively; and adding new paragraphs (d)(1)(ii) and (d)(2)(ii),
respectively, to read as follows:
§ 27.15 Geographic partitioning and spectrum disaggregation.
*****
(d)
Compliance with construction requirements.
(1) Partitioning.
(i) Except for WCS licensees holding authorizations for Block A in the 698-704 MHz
and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in
the 722-728 MHz band, Blocks C, C1, and C2 in the 746-757 MHz and 776-787 MHz bands,
and Block D in the 758-763 MHz and 788-793 MHz bands, the following rules apply to
WCS and AWS licensees holding authorizations for purposes of implementing the
construction requirements set forth in §27.14. * * *
(ii) For WCS licensees holding authorizations for Block A in the 698-704 MHz and 728734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722728 MHz band, and Blocks C, C1, and C2 in the 746-757 MHz and 776-787 MHz bands, the
following rules apply for purposes of implementing the construction requirements set forth in
§ 27.14. Parties to partitioning agreements have two options for satisfying the construction
requirements set forth in § 27.14. Under the first option, the partitioner and partitionee each
certifies that they will collectively share responsibility for meeting the construction
requirement for the entire pre-partition geographic license area. If the partitioner and
partitionee collectively fail to meet the construction requirement, then both the partitioner
and partitionee will be subject to the consequences enumerated in § 27.14(g)-(h) for this
failure. Under the second option, the partitioner and partitionee each certifies that it will
independently meet the construction requirement for its respective partitioned license area. If
the partitioner or partitionee fails to meet the construction requirement for its respective
partitioned license area, then the consequences for this failure shall be those enumerated in §
27.14(g)-(h).
(2) Disaggregation.
(i) Except for WCS licensees holding authorizations for Block A in the 698-704 MHz and
728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the
722-728 MHz band, and Blocks C, C1, and C2 in the 746-757 MHz and 776-787 MHz
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bands, and Block D in the 758-763 MHz and 788-793 MHz bands, the following rules apply
to WCS and AWS licensees holding authorizations for purposes for purposes of
implementing the construction requirements set forth in §27.14. * * *
(ii) For WCS licensees holding authorizations for Block A in the 698-704 MHz and 728734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722728 MHz band, and Blocks C, C1, and C2 in the 746-757 MHz and 776-787 MHz bands, the
following rules apply for purposes of implementing the construction requirements set forth in
§ 27.14. If either the disaggregator or the disaggregatee meets the construction requirements
set forth in § 27.14, then these requirements will be considered to be satisfied for both
parties. If neither the disaggregator nor the disaggregatee meets the construction
requirements, then both parties will be subject to the consequences enumerated in § 27.14(g)(h) for this failure.
20. Part 27 is amended by adding new Section 27.16 to read as follows:
§ 27.16 Network access requirements for Block C in the 746-757 and 776-787 MHz
bands.
(a) Applicability. This section shall apply only to the authorizations for Block C in the
746-757 and 776-787 MHz bands assigned and only if the results of the first auction in which
licenses for such authorizations are offered satisfied the applicable reserve price.
(b) Use of devices and applications. Licensees offering service on spectrum subject to
this section shall not deny, limit, or restrict the ability of their customers to use the devices
and applications of their choice on the licensee’s C Block network, except:
(1) Insofar as such use would not be compliant with published technical standards
reasonably necessary for the management or protection of the licensee’s network, or
(2) As required to comply with statute or applicable government regulation.
(c) Technical standards. For purposes of subsection (b)(1):
(1) Standards shall include technical requirements reasonably necessary for third parties
to access a licensee’s network via devices or applications without causing objectionable
interference to other spectrum users or jeopardizing network security. The potential for
excessive bandwidth demand alone shall not constitute grounds for denying, limiting or
restricting access to the network.
(2) To the extent a licensee relies on standards established by an independent standardssetting body which is open to participation by representatives of service providers, equipment
manufacturers, application developers, consumer organizations, and other interested parties,
the standards will carry a presumption of reasonableness.
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(3) A licensee shall publish its technical standards, which shall be non-proprietary, no
later than the time at which it makes such standards available to any preferred vendors, so
that the standards are readily available to customers, equipment manufacturers, application
developers, and other parties interested in using or developing products for use on a
licensee’s networks.
(d) Access requests.
(1) Licensees shall establish and publish clear and reasonable procedures for parties to
seek approval to use devices or applications on the licensees’ networks. A licensee must also
provide to potential customers notice of the customers’ rights to request the attachment of a
device or application to the licensee’s network, and notice of the licensee’s process for
customers to make such requests, including the relevant network criteria.
(2) If a licensee determines that a request for access would violate its technical standards
or regulatory requirements, the licensee shall expeditiously provide a written response to the
requester specifying the basis for denying access and providing an opportunity for the
requester to modify its request to satisfy the licensee’s concerns.
(e) Handset locking prohibited. No licensee may disable features on handsets it provides
to customers, to the extent such features are compliant with the licensee’s standards pursuant
to §27.16(b), nor configure handsets it provides to prohibit use of such handsets on other
providers’ networks.
(f) Burden of proof. Once a complainant sets forth a prima facie case that the C Block
licensee has refused to attach a device or application in violation of the requirements adopted
in this section, the licensee shall have the burden of proof to demonstrate that it has adopted
reasonable network standards and reasonably applied those standards in the complainant’s
case. Where the licensee bases its network restrictions on industry-wide consensus
standards, such restrictions would be presumed reasonable.
16.
Section 27.50 is amended by revising paragraphs (b) and (c) and the tables at the end of
the section to read as follows:
§ 27.50 Power and antenna height limits.
*****
(b) * * *
(1) Fixed and base stations transmitting a signal in the 757-758 and 775-776 MHz bands
must not exceed an effective radiated power (ERP) of 1000 watts and an antenna height of
305 m height above average terrain (HAAT), except that antenna heights greater than 305 m
HAAT are permitted if power levels are reduced below 1000 watts ERP in accordance with
Table 1 of this section.
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(2) Fixed and base stations transmitting a signal in the 746-757 MHz, 758-763 MHz,
776-787 MHz, and 788-793 MHz bands with an emission bandwidth of 1 MHz or less must
not exceed an ERP of 1000 watts and an antenna height of 305 m HAAT, except that antenna
heights greater than 305 m HAAT are permitted if power levels are reduced below 1000
watts ERP in accordance with Table 1 of this section.
(3) Fixed and base stations located in a county with population density of 100 or fewer
persons per square mile, based upon the most recently available population statistics from the
Bureau of the Census, and transmitting a signal in the 746-757 MHz, 758-763 MHz, 776-787
MHz, and 788-793 MHz bands with an emission bandwidth of 1 MHz or less must not
exceed an ERP of 2000 watts and an antenna height of 305 m HAAT, except that antenna
heights greater than 305 m HAAT are permitted if power levels are reduced below 2000
watts ERP in accordance with Table 2 of this section.
(4) Fixed and base stations transmitting a signal in the 746-757 MHz, 758-763 MHz,
776-787 MHz, and 788-793 MHz bands with an emission bandwidth greater than 1 MHz
must not exceed an ERP of 1000 watts/MHz and an antenna height of 305 m HAAT, except
that antenna heights greater than 305 m HAAT are permitted if power levels are reduced
below 1000 watts/MHz ERP accordance with Table 3 of this section.
(5) Fixed and base stations located in a county with population density of 100 or fewer
persons per square mile, based upon the most recently available population statistics from the
Bureau of the Census, and transmitting a signal in the 746-757 MHz, 758-763 MHz, 776-787
MHz, and 788-793 MHz bands with an emission bandwidth greater than 1 MHz must not
exceed an ERP of 2000 watts/MHz and an antenna height of 305 m HAAT, except that
antenna heights greater than 305 m HAAT are permitted if power levels are reduced below
2000 watts/MHz ERP in accordance with Table 4 of this section.
(6) Licensees of fixed or base stations transmitting a signal in the 746-757 MHz, 758763 MHz, 776-787 MHz, and 788-793 MHz bands at an ERP greater than 1000 watts must
comply with the provisions set forth in paragraph (b)(8) and §27.55(c).
(7) Licensees seeking to operate a fixed or base station located in a county with
population density of 100 or fewer persons per square mile, based upon the most recently
available population statistics from the Bureau of the Census, and transmitting a signal in the
746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands at an ERP greater
than 1000 watts must:
(i) coordinate in advance with all licensees authorized to operate in the 698-763 MHz,
775-793, and 805-806 MHz bands within 120 kilometers (75 miles) of the base or fixed
station;
(ii) coordinate in advance with all regional planning committees, as identified in §90.527
of this chapter, with jurisdiction within 120 kilometers (75 miles) of the base or fixed station.
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(8) Licensees authorized to transmit in the 746-757 MHz, 758-763 MHz, 776-787 MHz,
and 788-793 MHz bands and intending to operate a base or fixed station at a power level
permitted under the provisions of paragraph (b)(6) of this section must provide advanced
notice of such operation to the Commission and to licensees authorized in their area of
operation. Licensees who must be notified are all licensees authorized to operate in the 763775 MHz and 793-805 MHz bands under Part 90 of this chapter within 75 km of the base or
fixed station and all regional planning committees, as identified in §90.527 of this chapter,
with jurisdiction within 75 km of the base or fixed station. Notifications must provide the
location and operating parameters of the base or fixed station, including the station's ERP,
antenna coordinates, antenna height above ground, and vertical antenna pattern, and such
notifications must be provided at least 90 days prior to the commencement of station
operation.
(9) Control stations and mobile stations transmitting in the 746–757 MHz, 758-763
MHz, 776–793 MHz, and 805-806 MHz bands and fixed stations transmitting in the 787–788
MHz and 805-806 MHz bands are limited to 30 watts ERP.
(10) Portable stations (hand-held devices) transmitting in the 746–757 MHz, 758-763
MHz, 776–793 MHz, and 805-806 MHz bands are limited to 3 watts ERP.
(11) For transmissions in the 757-758, 775-776, 787-788, and 805-806 MHz bands,
maximum composite transmit power shall be measured over any interval of continuous
transmission using instrumentation calibrated in terms of RMS-equivalent voltage. The
measurement results shall be properly adjusted for any instrument limitations, such as
detector response times, limited resolution bandwidth capability when compared to the
emission bandwidth, etc., so as to obtain a true maximum composite measurement for the
emission in question over the full bandwidth of the channel.
(12) For transmissions in the 746-757, 758-763, 776-787, and 788-793 MHz bands,
licensees may employ equipment operating in compliance with either the measurement
techniques described in paragraph (b)(11) or a Commission-approved average power
technique. In both instances, equipment employed must be authorized in accordance with the
provisions of 27.51.
(c) * * *
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) Licensees seeking to operate a fixed or base station located in a county with
population density of 100 or fewer persons per square mile, based upon the most recently
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available population statistics from the Bureau of the Census, and transmitting a signal at an
ERP greater than 1000 watts must:
(i) coordinate in advance with all licensees authorized to operate in the 698-763 MHz,
775-793, and 805-806 MHz bands within 120 kilometers (75 miles) of the base or fixed
station;
(ii) coordinate in advance with all regional planning committees, as identified in §90.527
of this chapter, with jurisdiction within 120 kilometers (75 miles) of the base or fixed station.
(6) * * *
(7) A licensee authorized to operate in the 710-716, 716-722, or 740-746 MHz bands, or
in any unpaired spectrum blocks within the 698-746 MHz band, may operate a fixed or base
station at an ERP up to a total of 50 kW within its authorized, 6 MHz spectrum block if the
licensee complies with the provisions of §27.55(b). The antenna height for such stations is
limited only to the extent required to satisfy the requirements of §27.55(b).
(8) Licensees intending to operate a base or fixed station at a power level permitted
under the provisions of paragraph (c)(6) must provide advanced notice of such operation to
the Commission and to licensees authorized in their area of operation. Licensees who must
be notified are all licensees authorized under this part to operate on an adjacent spectrum
block within 75 km of the base or fixed station. Notifications must provide the location and
operating parameters of the base or fixed station, including the station's ERP, antenna
coordinates, antenna height above ground, and vertical antenna pattern, and such
notifications must be provided at least 90 days prior to the commencement of station
operation.
*****
(11) Licensees may employ equipment operating in compliance with either the
measurement techniques described in paragraph (b)(11) or a Commission-approved average
power technique. In both instances, equipment employed must be authorized in accordance
with the provisions of 27.51.
*****
Table 1 - Permissible Power and Antenna Heights for Base and Fixed
Stations in the 757-758 and 775-776 MHz Bands and for Base and
Fixed Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and
788-793 MHz Bands Transmitting a Signal with an Emission
Bandwidth of 1 MHz or Less
Antenna height (AAT) in meters
Effective radiated power (ERP)
(feet)
(watts)
Above 1372 (4500)
65
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Above 1220 (4000) To 1372 (4500)
70
Above 1067 (3500) To 1220 (4000)
75
Above 915 (3000) To 1067 (3500)
100
Above 763 (2500) To 915 (3000)
140
Above 610 (2000) To 763 (2500)
200
Above 458 (1500) To 610 (2000)
350
Above 305 (1000) To 458 (1500)
600
Up to 305 (1000)
1000
FCC 07-132
Table 2 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788793 MHz Bands Transmitting a Signal with an Emission Bandwidth
of 1 MHz or Less
Antenna height (AAT) in meters
Effective radiated power (ERP)
(feet)
(watts)
Above 1372 (4500)
130
Above 1220 (4000) To 1372 (4500)
140
Above 1067 (3500) To 1220 (4000)
150
Above 915 (3000) To 1067 (3500)
200
Above 763 (2500) To 915 (3000)
280
Above 610 (2000) To 763 (2500)
400
Above 458 (1500) To 610 (2000)
700
Above 305 (1000) To 458 (1500)
1200
Up to 305 (1000)
2000
Table 3 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788793 MHz Bands Transmitting a Signal with an Emission Bandwidth
Greater than 1 MHz
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Antenna height (AAT) in meters
(feet)
FCC 07-132
Effective radiated power (ERP)
per MHz (watts/MHz)
Above 1372 (4500)
65
Above 1220 (4000) To 1372 (4500)
70
Above 1067 (3500) To 1220 (4000)
75
Above 915 (3000) To 1067 (3500)
100
Above 763 (2500) To 915 (3000)
140
Above 610 (2000) To 763 (2500)
200
Above 458 (1500) To 610 (2000)
350
Above 305 (1000) To 458 (1500)
600
Up to 305 (1000)
1000
Table 4 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 698-757 MHz, 758-763 MHz, 776-787 MHz and 788793 MHz Bands Transmitting a Signal with an Emission Bandwidth
Greater than 1 MHz
Antenna height (AAT) in meters
Effective radiated power (ERP)
(feet)
per MHz (watts/MHz )
Above 1372 (4500)
130
Above 1220 (4000) To 1372 (4500)
140
Above 1067 (3500) To 1220 (4000)
150
Above 915 (3000) To 1067 (3500)
200
Above 763 (2500) To 915 (3000)
280
Above 610 (2000) To 763 (2500)
400
Above 458 (1500) To 610 (2000)
700
Above 305 (1000) To 458 (1500)
1200
Up to 305 (1000)
2000
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21. Section 27.53 is amended by adding a new paragraph (d), re-designating paragraphs (d)–(m)
as paragraphs (e)-(n), revising paragraph (c), new paragraph (f), and new paragraph (e), and
re-designating paragraphs (e)(1) to (e)(4) as paragraphs (e)(6) to (e)(9) to read as follows:
§ 27.53 Emission limits.
*****
(c) For operations in the 746 to 758 MHz band and the 776 to 788 MHz band, the power
of any emission outside the licensee's frequency band(s) of operation shall be attenuated
below the transmitter power (P) within the licensed band(s) of operation, measured in watts,
in accordance with the following:
(1) On any frequency outside the 746 to 758 MHz band, the power of any emission shall
be attenuated outside the band below the transmitter power (P) by at least 43 + 10 log (P) dB;
(2) On any frequency outside the 776 to 788 MHz band, the power of any emission shall
be attenuated outside the band below the transmitter power (P) by at least 43 + 10 log (P) dB;
(3) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, by a factor not less
than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and fixed stations;
(4) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, by a factor not less
than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile and portable stations;
*****
(d) For operations in the 758-763 MHz and 788-793 MHz bands, the power of any
emission outside the licensee's frequency bands of operation shall be attenuated below the
transmitter power (P) within the licensed band(s) of operation, measured in watts, in
accordance with the following:
(1) On all frequencies between 769 to 775 MHz and 799 to 805 MHz, by a factor not less
than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and fixed stations;
(2) On all frequencies between 769 to 775 MHz and 799 to 805 MHz, by a factor not less
than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile and portable stations;
(3) On any frequency between 775 to 788 MHz, above 805 MHz, and below 758 MHz,
by at least 43 + 10 log (P) dB;
(4) Compliance with the provisions of paragraph (d)(1) and d(2) of this section is based
on the use of measurement instrumentation such that the reading taken with any resolution
bandwidth setting should be adjusted to indicate spectral energy in a 6.25 kHz segment;
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(5) Compliance with the provisions of paragraph (d)(3) of this section is based on the use
of measurement instrumentation employing a resolution bandwidth of 100 kHz or greater.
However, in the 100 kHz bands immediately outside and adjacent to the frequency block, a
resolution bandwidth of at least 30 kHz may be employed.
(e) For operations in the 775–776 MHz and 805–806 MHz bands, transmitters must
comply with either paragraphs (e)(1) to (e)(5) of this section or the ACP emission limitations
set forth in paragraphs (e)(6) to (e)(9) of this section.
(1) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, the power of any
emission outside the licensee's frequency bands of operation shall be attenuated below the
transmitter power (P) within the licensed band(s) of operation, measured in watts, by a factor not
less than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and fixed stations;
(2) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, the power of any
emission outside the licensee's frequency bands of operation shall be attenuated below the
transmitter power (P) within the licensed band(s) of operation, measured in watts, by a factor
not less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile and portable
stations;
(3) On any frequency outside the 775 to 776 MHz and 805 to 806 MHz bands, the power
of any emission shall be attenuated outside the band below the transmitter power (P) within
the licensed band(s) of operation, measured in watts, by at least 43 + 10 log (P) dB;
(4) Compliance with the provisions of paragraph (e)(1) and (e)(2) of this section is based
on the use of measurement instrumentation such that the reading taken with any resolution
bandwidth setting should be adjusted to indicate spectral energy in a 6.25 kHz segment;
(5) Compliance with the provisions of paragraph (e)(3) of this section is based on the use
of measurement instrumentation employing a resolution bandwidth of 100 kHz or greater.
However, in the 100 kHz bands immediately outside and adjacent to the frequency block, a
resolution bandwidth of at least 30 kHz may be employed.
*****
(f) For operations in the 746–763 MHz, 775–793 MHz, and 805-806 MHz bands,
emissions in the band 1559–1610 MHz shall be limited to −70 dBW/MHz equivalent
isotropically radiated power (EIRP) for wideband signals, and −80 dBW EIRP for discrete
emissions of less than 700 Hz bandwidth. For the purpose of equipment authorization, a
transmitter shall be tested with an antenna that is representative of the type that will be used
with the equipment in normal operation.
*****
22. Section 27.55 is amended by revising paragraphs (a)(2) and (c) to read as follows:
§ 27.55 Power strength limits.
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(a) * * *
(1) * * *
(2) 698–758 and 775–787 MHz bands: 40 dBµV/m.
*****
(c) Power flux density limit for stations operating in the 746-757 MHz, 758-763 MHz,
776-787 MHz, and 788-793 MHz bands. For base and fixed stations operating in the 746757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands in accordance with the
provisions of §27.50(b)(6) of this chapter, the power flux density that would be produced by
such stations through a combination of antenna height and vertical gain pattern must not
exceed 3000 microwatts per square meter on the ground over the area extending to 1 km
from the base of the antenna mounting structure.
23. Section 27.57 is amended by revising paragraph (b) to read as follows:
§ 27.57 International coordination.
*****
(b) Operation in the 698–763 MHz, 775–793 MHz, and 805-806 MHz bands is subject to
international agreements between Mexico and Canada. Unless otherwise modified by
international treaty, licenses must not cause interference to, and must accept harmful
interference from, television broadcast operations in Mexico and Canada.
*****
24. Section 27.60 is amended to read as follows:
§ 27.60 TV/DTV interference protection criteria.
Base, fixed, control, and mobile transmitters in the 698–763 MHz, 775–793 MHz, and
805-806 MHz frequency bands must be operated only in accordance with the rules in this
section to reduce the potential for interference to public reception of the signals of existing
TV and DTV broadcast stations transmitting on TV Channels 51 through 68.
(a) D/U ratios. Licensees must choose site locations that are a sufficient distance from
co-channel and adjacent channel TV and DTV stations, and/or must use reduced transmitting
power or transmitting antenna height such that the following minimum desired signal-toundesired signal ratios (D/U ratios) are met.
(1) The minimum D/U ratio for co-channel stations is:
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(i) 40 dB at the hypothetical Grade B contour (64 dBµV/m) (88.5 kilometers (55 miles))
of the TV station;
(ii) For transmitters operating in the 698–746 MHz frequency band, 23 dB at the
equivalent Grade B contour (41 dBµV/m) (88.5 kilometers (55 miles)) of the DTV station; or
(iii) For transmitters operating in the 746–763 MHz, 775–793 MHz, and 805-806 MHz
frequency bands, 17 dB at the equivalent Grade B contour (41 dBµV/m) (88.5 kilometers (55
miles)) of the DTV station.
(2) The minimum D/U ratio for adjacent channel stations is 0 dB at the hypothetical
Grade B contour (64 dBµV/m) (88.5 kilometers (55 miles)) of the TV station or −23 dB at
the equivalent Grade B contour (41 dBµV/m) (88.5 kilometers (55 miles)) of the DTV
station.
(b) TV stations and calculation of contours. The methods used to calculate TV contours
and antenna heights above average terrain are given in §§73.683 and 73.684 of this chapter.
Tables to determine the necessary minimum distance from the 698–763 MHz, 775–793 MHz,
and 805-806 MHz station to the TV/DTV station, assuming that the TV/DTV station has a
hypothetical or equivalent Grade B contour of 88.5 kilometers (55 miles), are located in
§90.309 of this chapter and labeled as Tables B, D, and E. Values between those given in the
tables may be determined by linear interpolation. Distances for station parameters greater
than those indicated in the tables should be calculated in accordance with the required D/U
ratios, as provided in paragraph (a) of this section. The locations of existing and proposed
TV/DTV stations during the period of transition from analog to digital TV service are given
in part 73 of this chapter and in the final proceedings of MM Docket No. 87–268.
(1) Licensees of stations operating within the ERP and HAAT limits of §27.50 must
select one of four methods to meet the TV/DTV protection requirements, subject to
Commission approval:
(i) Utilize the geographic separation specified in Tables B, D, and E of §90.309 of this
chapter, as appropriate;
(ii) When station parameters are greater than those indicated in the tables, calculate
geographic separation in accordance with the required D/U ratios, as provided in paragraph
(a) of this section;
(iii) Submit an engineering study justifying the proposed separations based on the
parameters of the land mobile station and the parameters, including authorized and/or applied
for facilities, of the TV/DTV station(s) it is trying to protect; or,
(iv) Obtain written concurrence from the applicable TV/DTV station(s). If this method is
chosen, a copy of the agreement must be submitted with the application.
(2) The following is the method for geographic separations.
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(i) Base and fixed stations that operate in the 746–763 MHz, 775–787 MHz, and 788793 MHz bands having an antenna height (HAAT) less than 152 m. (500 ft.) shall afford
protection to co-channel and adjacent channel TV/DTV stations in accordance with the
values specified in Table B (co-channel frequencies based on 40 dB protection) and Table E
(adjacent channel frequencies based on 0 dB protection) in §90.309 of this chapter. Base and
fixed stations that operate in the 698–746 MHz band having an antenna height (HAAT) less
than 152 m. (500 ft.) shall afford protection to adjacent channel DTV stations in accordance
with the values specified in Table E in §90.309 of this chapter, shall afford protection to cochannel DTV stations by providing 23 dB protection to such stations' equivalent Grade B
contour (41 dBµV/m), and shall afford protection to co-channel and adjacent channel TV
stations in accordance with the values specified in Table B (co-channel frequencies based on
40 dB protection) and Table E (adjacent channel frequencies based on 0 dB protection) in
§90.309 of this chapter. For base and fixed stations having an antenna height (HAAT)
between 152–914 meters (500–3,000 ft.) the effective radiated power must be reduced below
1 kilowatt in accordance with the values shown in the power reduction graph in Figure B in
§90.309 of this chapter. For heights of more than 152 m. (500 ft.) above average terrain, the
distance to the radio path horizon will be calculated assuming smooth earth. If the distance so
determined equals or exceeds the distance to the hypothetical or equivalent Grade B contour
of a co-channel TV/DTV station (i.e. , it exceeds the distance from the appropriate Table in
§90.309 of this chapter to the relevant TV/DTV station), an authorization will not be granted
unless it can be shown in an engineering study (see paragraph (b)(1)(iii) of this section) that
actual terrain considerations are such as to provide the desired protection at the actual Grade
B contour (64 dBµV/m for TV and 41 dBµV/m for DTV stations) or unless the effective
radiated power will be further reduced so that, assuming free space attenuation, the desired
protection at the actual Grade B contour (64 dBµV/m for TV and 41 dBµV/m coverage
contour for DTV stations) will be achieved. Directions for calculating powers, heights, and
reduction curves are listed in §90.309 of this chapter for land mobile stations. Directions for
calculating coverage contours are listed in §§73.683 through 73.685 of this chapter for TV
stations and in §73.625 of this chapter for DTV stations.
(ii) Control, fixed, and mobile stations (including portables) that operate in the 787-788
MHz and 805-806 MHz bands and control and mobile stations (including portables) that
operate in the 698–757 MHz, 758-763 MHz, 776–787 MHz, and 788-793 MHz bands are
limited in height and power and therefore shall afford protection to co-channel and adjacent
channel TV/DTV stations in the following manner:
(A) For control, fixed, and mobile stations (including portables) that operate in the 787788 MHz and 805–806 MHz bands and control and mobile stations (including portables) that
operate in the 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands, cochannel protection shall be afforded in accordance with the values specified in Table D (cochannel frequencies based on 40 dB protection for TV stations and 17 dB for DTV stations)
in §90.309 of this chapter.
(B) For control and mobile stations (including portables) that operate in the 698–746
MHz band, co-channel protection shall be afforded to TV stations in accordance with the
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values specified in Table D (co-channel frequencies based on 40 dB protection) and to DTV
stations by providing 23 dB protection to such stations' equivalent Grade B contour (41
dBµV/m).
(C) For control, fixed, and mobile stations (including portables) that operate in the 787788 MHz and 805–806 MHz bands and control and mobile stations (including portables) that
operate in the 698-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands,
adjacent channel protection shall be afforded by providing a minimum distance of 8
kilometers (5 miles) from all adjacent channel TV/DTV station hypothetical or equivalent
Grade B contours (adjacent channel frequencies based on 0 dB protection for TV stations and
−23 dB for DTV stations).
(D) Since control, fixed, and mobile stations may affect different TV/DTV stations than
the associated base or fixed station, particular care must be taken by applicants/licensees to
ensure that all appropriate TV/DTV stations are considered (e.g., a base station may be
operating within TV Channel 62 and the mobiles within TV Channel 67, in which case TV
Channels 61, 62, 63, 66, 67 and 68 must be protected). Control, fixed, and mobile stations
shall keep a minimum distance of 96.5 kilometers (60 miles) from all adjacent channel
TV/DTV stations. Since mobiles and portables are able to move and communicate with each
other, licensees must determine the areas where the mobiles can and cannot roam in order to
protect the TV/DTV stations.
*****
25. Section 27.70 is amended by revising paragraphs (a) and (b) to read as follows:
§ 27.70 Information exchange.
(a) Prior notification. Public safety licensees authorized to operate in the 763-775 MHz
and 793-805 MHz bands may notify any licensee authorized to operate in the 746-757, 758763, 776-787, or 788-793 MHz bands that they wish to receive prior notification of the
activation or modification of the licensee’s base or fixed stations in their area. Thereafter,
the 746-757, 758-763, 776-787, or 788-793 MHz band licensee must provide the following
information to the public safety licensee at least 10 business days before a new base or fixed
station is activated or an existing base or fixed station is modified:
*****
(b) * * *
(1) Allow a public safety licensee to advise the 746-757, 758-763, 776-787, or 788-793
MHz band licensee whether it believes a proposed base or fixed station will generate
unacceptable interference;
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(2) Permit 746-757, 758-763, 776-787, and 788-793 MHz band licensees to make
voluntary changes in base or fixed station parameters when a public safety licensee alerts
them to possible interference; and,
*****
26. Section 27.303 (a) is amended to read as follows:
§ 27.303 Upper 700 MHz commercial and public safety coordination zone.
(a) General. CMRS operators are required, prior to commencing operations on fixed or
base station transmitters on the 776–787 MHz and 788 – 793 MHz bands that are located
within 500 meters of existing or planned public safety base station receivers, to submit a
description of their proposed facility to a Commission-approved public safety coordinator.
*****
27. Section 27.501 is amended by revising the title and amending the section to read as follows:
§ 27.501 746 – 763 MHz, 775 – 793 MHz, and 805 – 806 MHz bands subject to
competitive bidding.
Mutually exclusive initial applications for 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.
28. Section 27.601 is amended by revising paragraph (c) as follows:
§ 27.601 Authority and coordination requirements.
*****
(c) Frequency Coordination.
(1) A Guard Band licensee, or a spectrum lessee operating at 775-776 MHz and 805-806
MHz pursuant to a spectrum lease arrangement under §§ 1.9030 and 1.9035 of this chapter,
must notify Commission-recognized public safety frequency coordinators for the 700 MHz
Public Safety band and adjacent-area Guard Band licensees within one business day after the
licensee or the spectrum lessee has:
*****
29. Add the following new subpart N to Part 27 to read as follows:
SUBPART N — 700 MHz PUBLIC/PRIVATE PARTNERSHIP
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§ 27.1301 Purpose and scope
The purpose of this subpart, in conjunction with subpart AA of Part 90, is to establish
rules and procedures relating to the 700 MHz Public/Private Partnership entered between the
winning bidder for the 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 other related entities as the Commission may require or allow. Pursuant to this
partnership, the Upper 700 MHz D Block licensee and the Operating Company will be
responsible for constructing and operating a nationwide, shared interoperable wireless
broadband network used to provide a commercial service and a broadband network service
for public safety entities. The shared network assets will be held by the Network Assets
Holder and the Shared Wireless Broadband Network will operate on both the commercial
spectrum licensed to the Upper 700 MHz D Block licensee and the public safety broadband
spectrum licensed to the Public Safety Broadband Licensee. This subpart of the Part 27 rules
sets forth specific provisions relating to the Upper 700 MHz D Block license, the Upper 700
MHz D Block licensee, and other related entities as the Commission may require or allow
with respect to the 700 MHz Public/Private Partnership. Subpart AA of the Part 90 rules sets
forth related provisions applicable to the Public Safety Broadband License and the Public
Safety Broadband Licensee with respect to the 700 MHz Public/Private Partnership.
§ 27.1303 Upper 700 MHz D Block license conditions
(a) The winning bidder at auction of the license for Block D in the 758-763 MHz and
788-793 MHz bands will be granted the Upper 700 MHz D Block license only after this
winning bidder has entered, with the Public Safety Broadband Licensee and other related
entities as the Commission may require or allow, into the Network Sharing Agreement
(NSA) that has been approved by the Commission, has executed such other agreements as
the Commission may require or allow, and has met all other necessary conditions pertaining
to the award of this license.
(b) The Upper 700 MHz D Block licensee shall comply with all of the applicable
requirements set forth in this part and subpart, including the construction requirements set
forth in § 27.14, and shall comply with the terms of the NSA and such other agreements as
the Commission may require or allow.
(c) The Upper 700 MHz D Block licensee shall have the exclusive right to build and
operate the shared wireless broadband network, except as set forth in §§ 20.1330 and
90.1430.
(d) The Upper 700 MHz D Block licensee must not discontinue, reduce, or impair
service to public safety users unless and until, pursuant to Commission procedures, it has
obtained prior authorization from the Commission.
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(e) The Upper 700 MHz D Block licensee must provide the Public Safety Broadband
Licensee with priority access during emergencies, as specified in the NSA.
(f) These conditions and requirements will apply to any related entities that the
Commission may require or allow, as provided for in the NSA or otherwise as authorized by
the Commission.
§ 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 a nationwide, public
safety broadband network. At a minimum, the network must incorporate the following
features:
(a) Design for operation over a broadband technology platform that provides mobile
voice, video, and data capability that is seamlessly interoperable across public safety local
and state agencies, jurisdictions, and geographic areas, and that includes current and evolving
state-of-the-art technologies reasonably made available in the commercial marketplace with
features beneficial to the public safety community.
(b) Sufficient signal coverage to ensure reliable operation throughout the service area
consistent with typical public safety communications systems.
(c) Sufficient robustness to meet the reliability and performance requirements of public
safety.
(d) Sufficient capacity to meet the needs of public safety.
(e) Security and encryption consistent with state-of-the-art technologies.
(f) A mechanism to automatically prioritize public safety communications over
commercial uses on a real-time basis consistent with the requirements of § 27.1307.
(g) Operational capabilities consistent with features and requirements that are typical of
current and evolving state-of-the-art public safety systems.
(h) Operational control of the network by the Public Safety Broadband Licensee to the
extent necessary to ensure that public safety requirements are met.
§ 27.1307 Spectrum use in the network.
(a) Spectrum use. The shared wireless broadband network developed by the 700 MHz
Public/ Private Partnership will operate using spectrum associated with the Upper 700 MHz
D Block license in the 758-763 MHz and 788-793 MHz bands and the Public Safety
Broadband License in the adjacent 763-768 MHz and 793-798 MHz bands.
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(b) Access to spectrum in the 758-763 MHz and 788-793 MHz bands. The Upper 700
MHz D Block licensee shall lease the spectrum rights associated with the Upper 700 MHz D
Block license to the Operating Company, pursuant to the Commission’s spectrum leasing
rules. The spectrum leasing arrangement shall be a long-term de facto transfer leasing
arrangement for the entire remaining term of the Upper 700 MHz D Block license. If the
Upper 700 MHz D Block license is renewed, the parties will be required to renew this
spectrum leasing arrangement as well.
(c) Access to spectrum in the 763-768 MHz and 793-798 MHz bands. The Public Safety
Broadband Licensee, which holds the Public Safety Broadband License pursuant to Part 90
rules, must lease the spectrum usage rights associated with this license, pursuant to a
spectrum manager leasing arrangement set forth in Part 1 subpart X, to the Upper 700 MHz
D Block licensee and the Operating Company for the entire remaining term of the Public
Safety Broadband License to effectuate the 700 MHz Public/Private Partnership. The Upper
700 MHz D Block licensee and the Operating Company are the only entities that are eligible
to lease the spectrum usage rights associated with the Public Safety Broadband License to
operate on the 763-768 and 793-798 MHz bands. If the Upper 700 MHz D Block license is
cancelled, this spectrum leasing arrangement will automatically terminate.
(d) Commercial operations in the 763-768 MHz and 793-798 MHz bands. Commercial
operations in the 763-768 MHz and 793-798 MHz bands through the spectrum manager
leasing arrangement shall not cause harmful interference to primary users (i.e., public safety
users) and cannot claim protection from harmful interference from the primary public safety
operations in the 763-768 MHz and 793-798 MHz bands. The network providing
commercial operations in the 763-768 MHz and 793-798 MHz bands through the spectrum
manager leasing arrangement must be designed to automatically assign priority to public
safety users, to the exclusion and/or immediate preemption of any commercial use on a
dynamic, real-time priority basis, and to guarantee that public safety users suffer no harmful
interference or interruption or degradation of service due to commercial operations in the
763-768 MHz and 793-798 MHz bands.
§ 27.1308 Organization and structure of the 700 MHz Public/Private Partnership.
(a) The Upper 700 MHz D Block licensee, the Network Assets Holder and such other
related entities as the Commission may require or allow shall be formed by the winning
bidder of the Upper 700 MHz D Block license. The Upper 700 MHz D Block licensee, the
Network Assets Holder, and related entities as the Commission may require or allow must be
Special Purpose Bankruptcy Remote Entities formed to hold the license, to hold the shared
network assets, or for such other purpose as the Commission may require or allow. The
winning bidder of the Upper 700 MHz D Block license shall also form the Operating
Company, which must also be a Special Purpose Bankruptcy Remote Entity. Upon issuance
of the Upper 700 MHz D Block license, the winning bidder will assign all of its rights and
obligations under the NSA to the Upper 700 MHz D Block licensee, Network Assets Holder,
the Operating Company, and any other related entities that the Commission may require or
allow.
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(b) The Upper 700 MHz D Block licensee and other related entities as the Commission
may require or allow shall have the obligation to build out the Shared Wireless Broadband
Network, as provided for in the NSA or otherwise as authorized by the Commission.
§ 27.1310 Network Sharing Agreement.
The relationship between the Upper 700 MHz D Block licensee, the Public Safety
Broadband Licensee, and related entities as the Commission may require or allow will be
governed by the Network Sharing Agreement (NSA) and such other separate agreements as
the Commission may require or allow that are negotiated and entered into between the
parties. The NSA must, at a minimum, include the following terms:
(a) All of the substantive rights and obligations of the parties relating to the NSA, as
established by the Commission concerning the 700 MHz Public/Private Partnership.
(b) Network specifications that comply with § 27.1305.
(c) The definition of “emergency” for purposes of emergency priority access.
(d) All service fees to be imposed for services to public safety, including fees for normal
network service and fees for priority access to the D Block spectrum in an emergency.
(e) A detailed build-out schedule consistent with § 27.1327, including coverage of major
highways and interstates, as well as incorporated communities with a population in excess of
3,000.
(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 control requirements established in the
NSA.
(g) The Upper 700 MHz D Block licensee must offer at least one handset suitable for
public safety use that includes a seamlessly integrated satellite solution pursuant to the terms,
conditions, and timeframes set forth in the NSA.
(h) Any major modification of the terms of the NSA, related agreements or documents,
or such other agreements as the Commission may require or allow must be submitted to the
Commission for prior approval. All other modifications must be submitted to the Chiefs of
the Wireless Telecommunications Bureau and the Public Safety and Homeland Security
Bureau for prior approval.
(i) The NSA shall require, in a separate agreement, the granting of an irrevocable and
assignable right of first refusal to purchase the network assets if and whenever such assets are
otherwise to be sold and an irrevocable and assignable option in favor of the Public Safety
Broadband Licensee to purchase the network and all network assets if and whenever the
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Upper 700 MHz D Block license is cancelled or terminated, by reason of default or for any
other reason, for a consideration equivalent to the fair market value of the tangible and
intangible assets sold. This right and option shall be senior to, and have priority over, any
other right, claim, or interest in or to the network or the network assets. The NSA shall also
include a fair market valuation methodology to determine the fair market value of the shared
wireless broadband network assets.
(j) The NSA must have a term, not to exceed 10 years from February 17, 2009, that
coincides with the terms of the Upper 700 MHz D Block license and the Public Safety
Broadband License.
§ 27.1315 Establishment, execution, and application of the Network Sharing
Agreement.
The following requirements and processes relate to the establishment, execution, and
application of the NSA:
(a) Approval of NSA as pre-condition for granting the D Block License. The
Commission shall not grant the Upper 700 MHz D Block license until the winning bidder for
the Upper 700 MHz D Block license has negotiated the 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, the Network Assets Holder, and the Operating Company, as these entities are
defined in § 27.4.
(b) Requirement of negotiation. Negotiation of an NSA between the winning bidder for
the 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. The 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 sixmonth negotiation period, the winning bidder for the 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.
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(d) Submission of final agreement. As soon as the parties have reached an agreement on
all the terms of the NSA, related agreements or documents, and such other agreements as the
Commission may require or allow, but not later than five business days after the six-month
period for negotiation has expired, they must submit the NSA together with all agreements
and related documents referenced in the NSA, for review and approval by the full
Commission. The Commission will act on the NSA within 60 days of receipt. The
Commission may approve the NSA in its entirety, approve with modifications, or require the
parties to address additional terms or re-draft existing terms within a specified timeframe.
After the NSA is approved, the parties must execute the NSA and such other agreements as
the Commission may require or allow, and submit executed copies to the Commission within
10 business days of approval.
(e) Submission of disputed issues. If the parties have not reached agreement on all terms
of the NSA and related agreements by the end of the six-month period, they must notify the
Commission not later than five business days after the expiration of the six-month period of
the terms on which they have agreed, the nature of the remaining issues, each party’s position
on each issue, whether additional negotiation is likely to produce an agreement, and, if so, a
proposed deadline for reaching agreement on the NSA. Authority is delegated jointly to the
Chiefs of the Wireless Telecommunications Bureau and the Public Safety and Homeland
Security Bureau to resolve any remaining disputes.
(f) Resolution of disputes. Actions to resolve disputes may include, but are not limited
to: (1) granting additional time for negotiation; (2) issuing a decision on the disputed issues
and requiring the submission of a draft agreement consistent with the decision; (3) directing
the parties to further brief the remaining issues in full for immediate Commission decision;
and/or (4) immediate denial of the long-form application filed by the winning bidder for the
Upper 700 MHz D Block license.
(g) Default by winning bidder for Upper 700 MHz D Block license. If the winning
bidder for the Upper 700 MHz D Block fails to comply with negotiation or dispute resolution
requirements or fails to execute a Commission-approved NSA, its long form application will
be denied. If the long form application of the winning bidder of the Upper 700 MHz D
Block license is denied for any reason, including as a consequence of an action taken
pursuant to subsections (e) and (f), it will be deemed to have defaulted under §1.2109(c) and
will be liable for the default payment specified in § 1.2104(g).
§ 27.1320 Failure to comply with the NSA or the Commission’s Rules.
(a) Failure to comply with the Commission’s rules or the terms of the NSA may warrant
cancelling the Upper 700 MHz D Block license and awarding it to a new licensee. In the
event the Upper 700 MHz D Block license is cancelled, the Commission shall issue an order
cancelling the license and announcing the process for awarding rights to the spectrum to a
new licensee. Pending the award to a new licensee, the Commission shall issue the
Operating Company a special temporary authority to prevent interruption of services
provided over the Shared Wireless Broadband Network. The Operating Company must
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continue to provide both commercial service and services to public safety during the
transition. Upon grant of a new license, the Commission shall establish the terms and timing
under which the special temporary authorization shall be cancelled and the new Upper 700
MHz D Block licensee assumes the construction and operation of the network.
(b) If the Commission cancels or terminates the Upper 700 MHz D Block license, a fair
market valuation of the shared wireless broadband network assets shall be performed
immediately, pursuant to the fair market valuation methodology set forth in the NSA. In the
event that the Upper 700 MHz D Block license is awarded to a new entity, the Public Safety
Broadband Licensee’s option to purchase the network and all network assets if and whenever
the Upper 700 MHz D Block license is cancelled or terminated and its right of first refusal to
purchase the network assets if and whenever such assets are otherwise to be sold shall be
assigned to the new Upper 700 MHz D Block licensee and the new Network Assets Holder.
§ 27.1325 Resolution of disputes after grant of the Upper 700 MHz D Block License.
(a) The Upper 700 MHz D Block licensee, the Operating Company, the Network Assets
Holder and the Public Safety Broadband Licensee may at any time bring a complaint to the
Commission based on a claim that another party to the NSA has deviated from the terms of
the NSA, or a petition for a declaratory ruling to resolve the proper interpretation of an NSA
term or provision. The Commission also may at any time, on its own motion, determine to
address any material breach or interpret any NSA term or provision.
(b) The Commission shall have primary responsibility and jurisdiction for adjudicating
disputes that arise following execution of the NSA. The Commission may, however, require
the parties to first seek a settlement to the dispute or authorize the parties to resolve the
dispute through litigation or other means. Breach of license terms, the NSA, or the
Commission’s rules may result in cancellation of the Upper 700 MHz D Block license, the
Public Safety Broadband License, or both.
(c) The Chiefs of the Public Safety and Homeland Security Bureau and the Wireless
Telecommunications Bureau are delegated joint responsibility for adjudicating disputes.
§ 27.1327 Construction requirements; criteria for renewal.
(a) The Upper 700 MHz D Block licensee shall comply with the applicable construction
requirements of §27.14.
(b) The Upper 700 MHz D Block licensee shall comply with the applicable procedures
and criteria for license renewal of §27.14.
§ 27.1330 Local public safety build-out and operation.
(a) The Upper 700 MHz D Block licensee and the Operating Company through its lease
arrangements shall, except in the two limited circumstances set forth herein, have the
exclusive right to build and operate the Shared Wireless Broadband Network.
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(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 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.
(1) Options for early build-out in areas with a build-out commitment. In order to obtain
authorization to construct a broadband network as set forth above, the requesting public
safety entity must agree to one of the following:
(i) to, on its own, or through the Public Safety Broadband Licensee acting on its behalf,
construct the network at its own expense, and upon completion of construction transfer the
network to the Upper 700 MHz D Block licensee, which shall then integrate that network
into the Shared Wireless Broadband Network constructed pursuant to the NSA; or
(ii) to, in agreement with the Upper 700 MHz D Block licensee, provide all funds
necessary for the Upper 700 MHz D Block licensee to complete the early construction of the
network, including any and all additional resource and personnel costs, allowing the Upper
700 MHz D Block licensee at all times to own, operate, and manage the network as an
integrated part of the Shared Wireless Broadband Network.
(2) Negotiation of amendment to NSA. Under either early build out option set forth
above, the Public Safety Broadband Licensee, the Upper 700 MHz D Block licensee, and the
public safety entity must, prior to any construction, negotiate an amendment to the NSA
regarding this part of the network, specifying ownership rights, fees, and other terms, which
may be distinct from the analogous terms governing the Shared Wireless Broadband
Network, and such amendment must be approved by the Commission.
(i) Such amendment must provide the terms under which the Upper 700 MHz D Block
licensee shall receive full ownership rights and shall compensate the public safety entity (or
the Public Safety Broadband Licensee, where appropriate) for the construction of the
network; and shall, absent agreement to the contrary, provide for such transfer and
compensation to occur prior to the scheduled build out date for such network in the NSA.
(ii) Any right to compensation from the Upper 700 MHz D Block licensee related to
such early build-out shall be limited to the cost that would have been incurred had the Upper
700 MHz D Block licensee constructed the network itself in accordance with the original
terms and specifications of the NSA, as reasonably determined by the parties and negotiated
as part of the required NSA amendment required above. Such costs shall not include costs
attributable solely to advancing the date of construction or otherwise expediting the
construction process.
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(3) Operations. The public safety entity may not commence operations on the network
until ownership of the network has been transferred to the Upper 700 MHz D Block licensee.
Further, no operations shall be allowed except those authorized and conducted pursuant to
the authority of the Public Safety Broadband License.
(4) Attribution of early build-out to national benchmarks. Upon completion of
construction, transfer of ownership to the Upper 700 MHz D Block licensee, and
compensation as required herein, if applicable, the Upper 700 MHz D Block licensee may
include the network constructed pursuant to the early build-out provisions herein for
purposes of determining whether it has met its national build-out benchmarks and the buildout requirements of the NSA.
(5) Rights to build out and operate in areas without a build-out commitment. In areas for
which the NSA does not require the Upper 700 MHz D Block licensee to build out the
Shared Wireless Broadband Network, a public safety entity may build out and operate a
separate, exclusive network in the 700 MHz public safety broadband spectrum at any time,
provided the public safety entity has received the written approval of the Public Safety
Broadband Licensee and operates its independent network pursuant to a spectrum leasing
arrangement into which the public safety entity has entered with the Public Safety Broadband
Licensee.
(i) Such leasing arrangement shall not require the approval or consent of the Upper 700
MHz D Block licensee; however, the Public Safety Broadband Licensee must provide the
Upper 700 MHz D Block licensee with notice of the public safety entity’s intent to construct
in that area within 30 days of receipt of a request from a public safety entity seeking to
exercise this option, and shall inform the Upper 700 MHz D Block licensee of the public
safety entity’s anticipated build-out date(s).
(ii) Should the Upper 700 MHz D Block licensee, within 30 calendar days from receipt
of notice of the public safety entity’s intent to construct in that area, certify in writing to the
Public Safety Broadband Licensee that it will build out the shared network in the area within
a reasonable time of the anticipated build-out date(s), as determined by the Public Safety
Broadband Licensee, the Public Safety Broadband Licensee shall not allow the public safety
entity to build and operate its own separate exclusive network in that area, provided that the
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee execute an
amendment to the NSA indicating the Upper 700 MHz D Block licensee’s commitment to
build the network in that area. Such commitment shall become enforceable against the
Upper 700 MHz D Block licensee as part of its overall build-out requirements.
(iii) If the Upper 700 MHz D Block licensee does not exercise its option to commit to
build out the network in the requested area within 30 calendar days of receipt of notice of the
public safety entity’s intent to construct in such area, the Public Safety Broadband Licensee
and the public safety entity may proceed with a spectrum leasing arrangement, which must
be filed with the Commission prior to the public safety entity commencing any operations.
The spectrum leasing arrangement must take the form of a spectrum manager leasing
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arrangement under the rules specified in § 1.9020 of this chapter, and incorporate the
following conditions:
(a) The network must provide broadband operations;
(b) The network must be fully interoperable with the Shared Wireless Broadband
Network;
(c) The network must be available for use by any public safety entity in the area;
(d) The network must satisfy any other terms or conditions required by the Public Safety
Broadband Licensee; and
(e) The public safety entity must construct and place into operation its network within
one year of the effective date of the spectrum manager leasing arrangement. If the public
safety entity fails to place the network into operation within one year, the Public Safety
Broadband Licensee shall terminate the spectrum leasing arrangement pursuant to §
1.9020(h)(3). The public safety entity may also seek extended implementation authority
from the Commission pursuant to the requirements of § 90.629 of this Part.
(6) Except as set forth herein, the separate network is not required to meet the other
specifications of the Shared Wireless Broadband Network. Absent agreement of the public
safety entity, the Public Safety Broadband Licensee, and the Upper 700 MHz D Block
licensee, the separate network may not operate using any spectrum associated with the Upper
700 MHz D Block license.
(7) The Public Safety Broadband Licensee must file with the Commission any spectrum
manager leasing arrangement as specified in § 1.9020(e) of this chapter; such filing shall
identify the public safety entity leasing the spectrum, the particular areas of spectrum leased
as part of this build-out option, and the specific network infrastructure and equipment
deployed on such leased spectrum.
§ 27.1333 Geographic partitioning, spectrum disaggregation, license assignment and
transfer.
(a) The 700 MHz Upper D Block license may not be partitioned or disaggregated.
(b) The 700 MHz Upper D Block licensee will be permitted to assign or transfer its
licensee subject to Commission review and prior approval. The Upper 700 MHz D Block
license assignment or transfer applications are precluded from overnight processing.
§ 27.1335 Prohibition on discontinuance of public safety operations.
The Upper 700 MHz D Block licensee, the Operating Company and the Network Assets
Holder are prohibited from discontinuing or degrading the broadband network service
provided to the Public Safety Broadband Licensee or to public safety entities unless either at
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the request of the public safety entity or entities in question or with the pre-approval of the
Commission. The Upper 700 MHz D Block licensee shall notify the affected public safety
entity or entities and the Public Safety Broadband Licensee at least 30 days prior to any
unrequested discontinuance or degradation of network service.
§ 27.1340 Reporting obligations.
(a) The Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee
shall jointly file quarterly reports with the Commission. These reports shall include audited
financial statements, how the specific requirements of public safety are being met, detailed
information on the areas where broadband service has been deployed, which public safety
entities are using the broadband network in each area of operation, what types of applications
are in use in each area of operation, and the number of declared emergencies in each area of
operation.
(b) The Upper 700 MHz D Block licensee and Public Safety Broadband Licensee have
joint responsibility to register the base station locations with the Commission, providing
basic technical information, including geographic location.
30. 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).
§ 90.5 Other applicable rule parts.
*****
(k) Part 27 contains rules relating to miscellaneous wireless communications services.
(l) Part 51 contains rules relating to interconnection.
(m) Part 68 contains technical standards for connection of private land mobile radio
equipment to the public switched telephone network.
(n) Part 101 governs the operation of fixed microwave services.
31. Section 90.7 is amended by adding the following definitions in alphabetical order to read as
follows:
§ 90.7 Definitions.
*****
700 MHz Public/Private Partnership. The public/private partnership established for the
development and operation of a nationwide, shared interoperable wireless broadband
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network operating on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz and
793-798 MHz bands in accordance with the Commission’s rules.
*****
Network Assets Holder. The Network Assets Holder is a Special Purpose Bankruptcy
Remote Entity that is formed to hold the assets of the shared wireless broadband network
associated with the 700 MHz Public/Private Partnership, in accordance with the terms of the
Network Sharing Agreement, such other agreements as the Commission may require or
allow, and the Commission’s rules.
*****
Network Sharing Agreement (NSA). An agreement entered into between the winning
bidder, 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 the 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.
*****
Operating Company. The Operating Company is a Special Purpose Bankruptcy Remote
Entity that is formed to build and operate the shared wireless broadband network associated
with the 700 MHz Public/Private Partnership, in accordance with the terms of the Network
Sharing Agreement, such other agreements as the Commission may require or allow, and the
Commission’s rules.
*****
Public Safety Broadband License. The Public Safety Broadband License authorizes
public safety broadband services in the 763-768 MHz and 793-798 MHz bands on a primary
basis.
*****
Public Safety Broadband Licensee. The licensee of the Public Safety Broadband License
in the 763-768 MHz and 793-798 MHz bands.
*****
Shared Wireless Broadband Network. Wireless broadband network associated with the
700 MHz Band Public/Private Partnership that operates on the 758-763 MHz and 788-793
MHz bands and the 763-768 MHz and 793-798 MHz bands pursuant to the terms of the
Network Sharing Agreement, such other agreements as the Commission may require or
allow, and the Commission’s rules.
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*****
Special Purpose Bankruptcy Remote Entity. A “special purpose entity” is a legal entity
created for a special limited purpose, in this context primarily to hold the Upper 700 MHz D
Block license or the network assets, or to conduct the construction or operation of the Shared
Wireless Broadband Network associated with the 700 MHz Public/Private Partnership. A
special purpose entity is “bankruptcy remote” if that entity is unlikely to become insolvent as
a result of its own activities, is adequately insulated from the consequences of a related
party’s insolvency, and contains certain characteristics which enhance the likelihood that it
will not become the subject of an insolvency proceeding.
*****
Upper 700 MHz D Block license. The Upper 700 MHz D Block license is the nationwide
license associated with the 758-763 MHz and 788-793 MHz bands.
*****
Upper 700 MHz D Block licensee. The Special Purpose Bankruptcy Remote Entity to
which the Upper 700 MHz D Block license must be transferred upon execution of the
Network Sharing Agreement. References herein to the rights and obligations of the Upper
700 MHz D Block licensee include the exercise or discharge of such rights or obligations,
respectively, by related entities as are provided for in the NSA or otherwise as authorized by
the Commission.
*****
32. Section 90.18 is added 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 licensee of the adjacent Upper
700 MHz D Block license, 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 the Second
Report and Order in PS Docket No. 06-229.
33. Section 90.20 is amended by revising the table in paragraph (c)(3) and paragraph (d)(77) to
read as follows:
§ 90.20 Public Safety Pool.
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*****
(c) * * *
(3) Frequencies.
Public Safety Pool Frequency Table
Frequency
Class of
Limitations Coordinator
or band
station(s)
*
*
*
*
470-512
Base or
68
mobile
763-775
Base,
77
PX
mobile
793-805
Mobile
77
PX
806-817
do
69
*
*
*
*
(d) * * *
(77) Subpart R of this part contains rules for assignment of channels in the 763-775 MHz
and 793-805 MHz bands.
34. Section 90.155 is amended by revising paragraph (a) to read as follows:
§ 90.155 Time in which station must be placed in operation.
(a) All stations authorized under this part, except as provided in sections 90.528, 90.529,
90.629, 90.631(f), 90.665, 90.685, and 90.1209, must be placed in operation within twelve
(12) months from the date of grant or the authorization cancels automatically and must be
returned to the Commission.
*****
35. Section 90.175 is amended by revising the title of paragraph (e), revising paragraphs (j) (10),
(11) and (12) and adding a new paragraph (j)(18) to read as follows:
§ 90.175 Frequency coordination requirements.
*****
(e) For frequencies between 470-512 MHz, 769-775/799-805 MHz, 806-824/851-869
MHz and 896-901/935-940 MHz:
*****
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(j) * * *
(10) Applications for mobile stations operating in the 470-512 MHz band, 799-805 MHz
band, or above 800 MHz if the frequency pair is assigned to a single system on an exclusive
basis in the proposed area of operation.
(11) Applications for add-on base stations in multiple licensed systems operating in the
470-512 MHz, 769-775 MHz band, or above 800 MHz if the frequency pair is assigned to a
single system on an exclusive basis.
(12) Applications for control stations operating below 470 MHz, 769-775/799-805 MHz,
or above 800 MHz and meeting the requirements of § 90.119(b).
*****
(18) Applications for base, mobile, or control stations in the 763-768 MHz and 793-798
MHz bands.
36. Section 90.176 is amended by revising the section title and revising the title in paragraph (c)
to read as follows:
§ 90.176 Coordinator notification requirements on frequencies below 512 MHz or at
769-775/799-805 MHz.
*****
(c) Frequencies in the 769-775/799-805 MHz band. * * *
*****
37. Section 90.179 is amended by revising paragraph (g) to read as follows:
§ 90.179 Shared use of radio stations.
*****
(g) Notwithstanding paragraph (a) of this section, licensees authorized to operate radio
systems on Public Safety Pool frequencies designated in § 90.20 may share their facilities
with Federal Government entities on a non-profit, cost-shared basis. Such a sharing
arrangement is subject to the provisions of paragraphs (b), (d), and (e) of this section, and §
2.103(c) concerning approval of the Public Safety Broadband Licensee for Federal operations
in the 763-768 MHz and 793-798 MHz bands. State governments authorized to operate radio
systems under § 90.529 may share the use of their systems (for public safety services not
made commercially available to the public) with any entity that would be eligible for
licensing under § 90.523 and Federal government entities.
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38. Section 90.205 is amended by inserting a new paragraph (j), redesignating paragraphs (j)
through (r) as paragraphs (k) through (s) and revising new paragraph (k) to read as follows:
§ 90.205 Power and antenna height limits.
*****
(j) 763-775 MHz and 793-805 MHz. Power and height limitations are specified in §§
90.541 and 90.542.
(k) 806-824 MHz, 851-869 MHz, 896-901 MHz and 935-940 MHz. Power and height
limitations are specified in § 90.635
*****
39. Subpart R is amended by revising the subpart title to read as follows:
Subpart R – Regulations Governing the Licensing and Use of Frequencies in the 763775 and 793-805 MHz Bands
40. The first sentence of Section 90.521 is amended to read as follows:
§ 90.521 Scope.
This subpart sets forth the regulations governing the licensing and operations of all
systems operating in the 763-775 MHz and 793-805 MHz frequency bands. * * *
41. Section 90.523 is amended by revising the introductory paragraph and adding a new
paragraph (e) 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). The following are eligible to hold Commission authorizations for systems
operating in the 763-775 MHz and 793-805 MHz frequency bands:
*****
(e) The minimum eligibility requirements for the Public Safety Broadband Licensee in
the 763-768 MHz and 793-798 MHz 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;
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(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; and
(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 763768 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.
42. Section 90.525 is amended by revising paragraphs (a) and (b) to read as follows:
§ 90.525 Administration of interoperability channels.
(a) States are responsible for administration of the Interoperability channels in the 769775 MHz and 799-805 MHz frequency bands. Base and control stations must be licensed
individually. A public safety entity meeting the requirements of § 90.523 may operate mobile
or portable units on the Interoperability channels in the 769-775 MHz and 799-805 MHz
frequency bands without a specific authorization from the Commission provided it holds a
Part 90 license. All persons operating mobile or portable units under this authority are
responsible for compliance with Part 90 of these rules and other applicable federal laws.
(b) License applications for Interoperability channels in the 769-775 MHz and 799-805
MHz frequency bands must be approved by a state-level agency or organization responsible
for administering state emergency communications. States may hold the licenses for
Interoperability channels or approve other qualified entities to hold such licenses. States may
delegate the approval process for interoperability channels to another entity, such as regional
planning committees.
43. Section 90.528 is added to read as follows:
§ 90.528 Public Safety Broadband License.
(a) The 763-768/793-798 MHz bands are allocated on a nationwide basis for public
safety broadband operations and licensed to a single Public Safety Broadband Licensee. The
768-769/798-799 MHz bands also are licensed to the Public Safety Broadband Licensees as
guard bands. The license area of the Public Safety Broadband License consists of the
contiguous 48 states, Alaska, Hawaii, Gulf of Mexico, and the U.S. territories.
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(b) The Public Safety Broadband License authorizes construction and operation of base
stations anywhere within the area authorized by the license, except as follows:
(1) A station is required to be individually licensed if:
(i) International agreements require coordination;
(ii) Submission of an environmental assessment is required under § 1.1307 of this
chapter; or
(iii) The station would affect areas identified in § 1.924 of this chapter.
(2) Any antenna structure that requires notification to the Federal Aviation
Administration (FAA) must be registered with the Commission prior to construction under §
17.4 of this chapter.
(c) Mobile and portable devices may operate without individual license under the
authority of the Public Safety Broadband License.
(d) The term of the Public Safety Broadband License shall not exceed ten years from
February 17, 2009. The Public Safety Broadband Licensee is entitled to a renewal
expectancy barring violations of law, rules or policy warranting denial of renewal.
(e) The Public Safety Broadband License may not be partitioned or disaggregated.
(f) The Public Safety Broadband Licensee may not voluntarily assign or transfer control
of the Public Safety Broadband License.
(g) Quarterly reporting of financial and operational information. The Public Safety
Broadband Licensee shall submit, on a quarterly basis, a full financial accounting to the
Commission, in a format to be set forth in the Network Sharing Agreement, and as approved
by the Commission. Such quarterly financial reports shall be filed with the Commission,
with a copy to the Chiefs of the Wireless Telecommunications and the Public Safety and
Homeland Security Bureaus.
44. Section 90.531 is amended by revising the introductory paragraphs and paragraphs (a), (b)
and (e), removing and reserving paragraphs (c) and (d)(2) and adding new paragraphs (f) and
(g) to read as follows:
§ 90.531 Band plan.
This section sets forth the band plan for the 763-775 MHz and 793-805 MHz public
safety bands.
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(a) Base and mobile use. The 763-775 MHz band may be used for base, mobile or fixed
(repeater) transmissions. The 793-805 MHz band may be used only for mobile or fixed
(control) transmissions.
(b) Narrowband segments. There are two band segments that are designated for use with
narrowband emissions. Each of these narrowband segments is divided into 960 channels
having a channel size of 6.25 kHz as follows:
-----------------------------------------------------------------------Frequency range
Channel Nos.
-----------------------------------------------------------------------769-775 MHz................................ 1-960
799-805 MHz................................ 961-1920
-----------------------------------------------------------------------*****
(c) [Reserved]
(d) * * *
(d)(1) * * *
(d)(2) [Reserved]
*****
(f) Internal guard band. The internal guard band (768-769/798-799 MHz) is reserved.
(g) Broadband. The 763-768 MHz and 793-798 MHz bands are allocated for broadband
communications pursuant to the Public Safety Broadband License.
45. Section 90.533 is amended by revising the section to read as follows:
§ 90.533 Transmitting sites near the U.S./Canada or U.S./Mexico border.
This section applies to each license to operate one or more public safety transmitters in
the 763-775 MHz and 793-805 MHz bands, at a location or locations North of Line A (see §
90.7) or within 120 kilometers (75 miles) of the U.S.-Mexico border, until such time as
agreements between the government of the United States and the government of Canada or
the government of the United States and the government of Mexico, as applicable, become
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effective governing border area non-broadcast use of these bands. Public safety licenses are
granted subject to the following conditions:
(a) Public safety transmitters operating in the 763-775 MHz and 793-805 MHz bands
must conform to the limitations on interference to Canadian television stations contained in
agreement(s) between the United States and Canada for use of television channels in the
border area.
(b) Public safety facilities must accept any interference that may be caused by operations
of UHF television broadcast transmitters in Canada and Mexico.
(c) Conditions may be added during the term of the license, if required by the terms of
international agreements between the government of the United States and the government of
Canada or the government of the United States and the government of Mexico, as applicable,
regarding non-broadcast use of the 763-775 MHz and 793-805 MHz bands.
46. Section 90.535 is amended by revising the introductory paragraph and paragraph (a) to read
as follows:
§ 90.535 Modulation and spectrum usage efficiency requirements.
Transmitters designed to operate in 769-775 MHz and 799-805 MHz frequency bands
must meet the following modulation standards:
(a) All transmitters in the 769-775 MHz and 799-805 MHz frequency bands must use
digital modulation. Mobile and portable transmitters may have analog modulation capability
only as a secondary mode in addition to its primary digital mode. Mobile and portable
transmitters that only operate on the low power channels designated in §§ 90.531(b)(3),
90.531(b)(4), are exempt from this digital modulation requirement.
*****
47. Section 90.537 is amended by revising paragraph (a) to read as follows:
§ 90.537 Trunking requirement.
(a) General use channels. All systems using six or more narrowband channels in the 769775 MHz and 799-805 MHz frequency bands must be trunked systems, except for those
described in paragraph (b) of this section.
*****
48. Section 90.539 is amended by revising the introductory paragraph to read as follows:
§ 90.539 Frequency stability.
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Transmitters designed to operate in 769-775 MHz and 799-805 MHz frequency bands
must meet the frequency stability requirements in this section.
*****
49. Section 90.541 is amended by revising the introductory paragraph to read as follows:
§ 90.541 Transmitting power limits.
The transmitting power of base, mobile, portable and control stations operating in the
769-775 MHz and 799-805 MHz frequency bands must not exceed the maximum limits in
this section, and must also comply with any applicable effective radiated power limits in §
90.545.
*****
50. Section 90.542 is added to read as follows:
§ 90.542 Broadband transmitting power limits.
(a) The following power limits apply to the 763-768/793-798 MHz band:
(1) Fixed and base stations transmitting a signal in the 763-768 MHz band with an
emission bandwidth of 1 MHz or less must not exceed an ERP of 1000 watts and an antenna
height of 305 m HAAT, except that antenna heights greater than 305 m HAAT are permitted
if power levels are reduced below 1000 watts ERP in accordance with Table 1 of this section.
(2) Fixed and base stations located in a county with population density of 100 or fewer
persons per square mile, based upon the most recently available population statistics from the
Bureau of the Census, and transmitting a signal in the 763-768 MHz band with an emission
bandwidth of 1 MHz or less must not exceed an ERP of 2000 watts and an antenna height of
305 m HAAT, except that antenna heights greater than 305 m HAAT are permitted if power
levels are reduced below 2000 watts ERP in accordance with Table 2 of this section.
(3) Fixed and base stations transmitting a signal in the 763-768 MHz band with an
emission bandwidth greater than 1 MHz must not exceed an ERP of 1000 watts/MHz and an
antenna height of 305 m HAAT, except that antenna heights greater than 305 m HAAT are
permitted if power levels are reduced below 1000 watts/MHz ERP accordance with Table 3
of this section.
(4) Fixed and base stations located in a county with population density of 100 or fewer
persons per square mile, based upon the most recently available population statistics from the
Bureau of the Census, and transmitting a signal in the 763-768 MHz band with an emission
bandwidth greater than 1 MHz must not exceed an ERP of 2000 watts/MHz and an antenna
height of 305 m HAAT, except that antenna heights greater than 305 m HAAT are permitted
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if power levels are reduced below 2000 watts/MHz ERP in accordance with Table 4 of this
section.
(5) Licensees of fixed or base stations transmitting a signal in the 763-768 MHz band at
an ERP greater than 1000 watts must comply with the provisions set forth in paragraph (b).
(6) Control stations and mobile stations transmitting in the 763-768 MHz band and the
793-798 MHz band are limited to 30 watts ERP.
(7) Portable stations (hand-held devices) transmitting in the 763-768 MHz band and the
793-798 MHz band are limited to 3 watts ERP.
(8) For transmissions in the 763-768 MHz and 793-798 MHz bands, licensees may
employ equipment operating in compliance with either of the following measurement
techniques:
(i) The maximum composite transmit power shall be measured over any interval of
continuous transmission using instrumentation calibrated in terms of RMS-equivalent
voltage. The measurement results shall be properly adjusted for any instrument limitations,
such as detector response times, limited resolution bandwidth capability when compared to
the emission bandwidth, etc., so as to obtain a true maximum composite measurement for the
emission in question over the full bandwidth of the channel.
(ii) A Commission-approved average power technique.
Table 1 - Permissible Power and Antenna Heights for Base and Fixed
in the 763-768 MHz Band Transmitting a Signal with an Emission
Bandwidth of 1 MHz or Less
Antenna height (AAT) in meters
(feet)
Effective radiated power (ERP)
(watts)
Above 1372 (4500)
65
Above 1220 (4000) To 1372 (4500)
70
Above 1067 (3500) To 1220 (4000)
75
Above 915 (3000) To 1067 (3500)
100
Above 763 (2500) To 915 (3000)
140
Above 610 (2000) To 763 (2500)
200
Above 458 (1500) To 610 (2000)
350
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Above 305 (1000) To 458 (1500)
600
Up to 305 (1000)
1000
FCC 07-132
Table 2 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 763-768 MHz Band Transmitting a Signal with an
Emission Bandwidth of 1 MHz or Less
Antenna height (AAT) in meters
(feet)
Effective radiated power (ERP)
(watts)
Above 1372 (4500)
130
Above 1220 (4000) To 1372 (4500)
140
Above 1067 (3500) To 1220 (4000)
150
Above 915 (3000) To 1067 (3500)
200
Above 763 (2500) To 915 (3000)
280
Above 610 (2000) To 763 (2500)
400
Above 458 (1500) To 610 (2000)
700
Above 305 (1000) To 458 (1500)
1200
Up to 305 (1000)
2000
Table 3 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 763-768 MHz Band Transmitting a Signal with an
Emission Bandwidth Greater than 1 MHz
Antenna height (AAT) in meters
(feet)
Effective radiated power (ERP)
per MHz (watts/MHz)
Above 1372 (4500)
65
Above 1220 (4000) To 1372 (4500)
70
Above 1067 (3500) To 1220 (4000)
75
Above 915 (3000) To 1067 (3500)
100
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Above 763 (2500) To 915 (3000)
140
Above 610 (2000) To 763 (2500)
200
Above 458 (1500) To 610 (2000)
350
Above 305 (1000) To 458 (1500)
600
Up to 305 (1000)
1000
FCC 07-132
Table 4 – Permissible Power and Antenna Heights for Base and Fixed
Stations in the 763-768 MHz Band Transmitting a Signal with an
Emission Bandwidth Greater than 1 MHz
Antenna height (AAT) in meters
(feet)
Effective radiated power (ERP)
per MHz (watts/MHz )
Above 1372 (4500)
130
Above 1220 (4000) To 1372 (4500)
140
Above 1067 (3500) To 1220 (4000)
150
Above 915 (3000) To 1067 (3500)
200
Above 763 (2500) To 915 (3000)
280
Above 610 (2000) To 763 (2500)
400
Above 458 (1500) To 610 (2000)
700
Above 305 (1000) To 458 (1500)
1200
Up to 305 (1000)
2000
(b) For base and fixed stations operating in the 763-768 MHz band in accordance with
the provisions of paragraph (a)(5) of this section, the power flux density that would be
produced by such stations through a combination of antenna height and vertical gain pattern
must not exceed 3000 microwatts per square meter on the ground over the area extending to
1 km from the base of the antenna mounting structure.
51. Section 90.543 is amended by revising the introductory paragraph, deleting the two tables in
paragraph (a) concerning “150 kHz” requirements, revising paragraph (b)(1), inserting a new
paragraph (e) and revising and redesignating paragraphs (e) and (f) as paragraphs (f) and (g).
§ 90.543 Emission limitations.
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Transmitters designed to operate in 769-775 MHz and 799-805 MHz frequency bands
must meet the emission limitations in paragraphs (a) through (d) of this section. Transmitters
operating in 763-768 MHz and 793-798 MHz bands must meet the emission limitations in (e)
of this section.
*****
(b)(1) Setting reference level. Set transmitter to maximum output power. Using a
spectrum analyzer capable of ACP measurements, set the measurement bandwidth to the
channel size. For example, for a 6.25 kHz transmitter set the measurement bandwidth to 6.25
kHz. Set the frequency offset of the measurement bandwidth to zero and adjust the center
frequency of the instrument to the assigned center frequency to measure the average power
level of the transmitter. Record this power level in dBm as the “reference power level.”
*****
(e) For operations in the 763-768 MHz and the 793-798 MHz bands, the power of any
emission outside the licensee’s frequency band(s) of operation shall be attenuated below the
transmitter power (P) within the licensed band(s) of operation, measured in watts, in
accordance with the following:
(1) On all frequencies between 769-775 MHz and 799-805 MHz, by a factor not less
than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and fixed stations.
(2) On all frequencies between 769-775 MHz and 799-805 MHz, by a factor not less
than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile and portable stations.
(3) Compliance with the provisions of paragraphs (e)(1) and (2) of this section is based
on the use of measurement instrumentation such that the reading taken with any resolution
bandwidth setting should be adjusted to indicate spectral energy in a 6.25 kHz segment.
(f) For operations in the 763-775 MHz and 793-805 MHz bands, all emissions including
harmonics in the band 1559-1610 MHz shall be limited to -70 dBW/MHz equivalent
isotropically radiated power (EIRP) for wideband signals, and -80 dBW EIRP for discrete
emissions of less than 700 Hz bandwidth. For the purpose of equipment authorization, a
transmitter shall be tested with an antenna that is representative of the type that will be used
with the equipment in normal operation.
(g) When an emission outside of the authorized bandwidth causes harmful interference,
the Commission may, at its discretion, require greater attenuation than specified in this
section.
52. Section 90.547 is amended by revising paragraph (a) to read as follows:
§ 90.547 Narrowband interoperability channel capability requirement.
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(a) Except as noted in this section, mobile and portable transmitters operating on
narrowband channels in the 769-775 MHz and 799-805 MHz frequency bands must be
capable of operating on all of the designated nationwide narrowband Interoperability
channels pursuant to the standards specified in this part.
*****
53. Section 90.548 is amended by revising paragraph (a) to read as follows:
§ 90.548 Interoperability technical standards.
(a) Transmitters operating on those narrowband channels in the 769-775 and 799-805
MHz band designated for interoperability (See § 90.531) shall conform to the following
technical standards:
*****
54. Section 90.551 is amended to read as follows:
§ 90.551 Construction requirements.
Each station authorized under this subpart to operate in the 769-775 MHz and 799-805
MHz frequency bands must be constructed and placed into operation within 12 months from
the date of grant of the authorization, except for State channels. However, licensees may
request a longer construction period, up to but not exceeding 5 years, pursuant to §
90.155(b). State channels are subject to the build-out requirements in § 90.529.
55. Add the following new subpart AA to Part 90 to read as follows:
SUBPART AA — 700 MHz PUBLIC/PRIVATE PARTNERSHIP
§ 90.1401 Purpose and scope.
The purpose of this subpart, in conjunction with subpart N of Part 27, is to establish rules
and procedures relating to the 700 MHz Public/Private Partnership entered between the
winning bidder for the 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 other related entities as the Commission may require or allow. Pursuant to this
partnership, the Upper 700 MHz D Block licensee and the Operating Company will be
responsible for constructing and operating a nationwide, shared interoperable wireless
broadband network used to provide a commercial service and a broadband network service
for public safety entities. The shared network assets will be held by the Network Assets
Holder, and the Shared Wireless Broadband Network will operate on both the commercial
spectrum licensed to the Upper 700 D Block MHz licensee and the public safety broadband
spectrum licensed to the Public Safety Broadband Licensee. This subpart of the Part 90 rules
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sets forth specific provisions relating to the Public Safety Broadband License and the Public
Safety Broadband Licensee with respect to the 700 MHz Public/Private Partnership. Subpart
N of the Part 27 rules sets forth related provisions applicable to the Upper 700 MHz D Block
license, the Upper 700 MHz D Block licensee and other related entities as the Commission
may require or allow, with respect to the 700 MHz Public/Private Partnership.
§ 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 and such other agreements as the Commission may require or allow.
(b) The responsibilities of the Public Safety Broadband Licensee shall include the
following:
(1) Negotiation of the NSA and such other agreements as the Commission may require
or allow with the winning bidder at auction for the 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, including assessment of usage fees 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 NSA.
(4) Dealings with equipment vendors on its own or in partnership with the Upper 700
MHz D Block licensee, as appropriate, to achieve and pass on the benefits of economies of
scale concerning network and subscriber equipment and applications.
(5) Sole authority, which cannot be waived in the NSA, 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.
(6) 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.
(7) Oversight and implementation of the relocation of narrowband public safety
operations in television channels 63 and 68, and the upper one megahertz of channels 64 and
69.
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(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 NSA.
(9) 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.
§ 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 a nationwide, public
safety broadband network. At a minimum, the network must incorporate the following
features:
(a) Design for operation over a broadband technology platform that provides mobile
voice, video, and data capability that is seamlessly interoperable across public safety local
and state agencies, jurisdictions, and geographic areas, and which includes current and
evolving state-of-the-art technologies reasonably made available in the commercial
marketplace with features beneficial to the public safety community.
(b) Sufficient signal coverage to ensure reliable operation throughout the service area
consistent with typical public safety communications systems.
(c) Sufficient robustness to meet the reliability and performance requirements of public
safety.
(d) Sufficient capacity to meet the needs of public safety.
(e) Security and encryption consistent with state-of-the-art technologies.
(f) A mechanism to automatically prioritize public safety communications over
commercial uses on a real-time basis consistent with the requirements of § 90.1407(c).
(g) Operational capabilities consistent with features and requirements that are typical of
current and evolving state-of-the-art public safety systems.
(h) Operational control of the network by the Public Safety Broadband Licensee to the
extent necessary to ensure that public safety requirements are met.
§ 90.1407 Spectrum use in the network.
(a) Spectrum use. The Shared Wireless Broadband Network will operate using spectrum
associated with the Upper 700 MHz D Block license in the 758-763 MHz and 788-793 MHz
bands and the Public Safety Broadband License in the adjacent 763-768 MHz and 793-798
MHz bands.
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(b) Access to spectrum in the 763-768 MHz and 793-798 MHz bands. The Public Safety
Broadband Licensee which holds the Public Safety Broadband License, pursuant to Part 90
rules, must lease the spectrum rights associated with this license, pursuant to a spectrum
manager leasing arrangement set forth in Part 1 subpart X, to the Upper 700 MHz D Block
licensee and the Operating Company for the entire remaining term of the Public Safety
Broadband License to effectuate the 700 MHz Public/Private Partnership. The Upper 700
MHz D Block licensee and the Operating Company, are the only entities that are eligible to
lease the spectrum usage rights associated with the Public Safety Broadband License to
operate on the 763-768 and 793-798 MHz bands. If the Upper 700 MHz D Block license is
cancelled, this spectrum leasing arrangement will automatically terminate.
(c) Commercial operations in the 763-768 MHz and 793-798 MHz bands. Commercial
operations in the 763-768 MHz and 793-798 MHz bands through the spectrum manager
leasing arrangement shall not cause harmful interference to primary users (i.e., public safety
users) and cannot claim protection from harmful interference from the primary public safety
operations in the 763-768 MHz and 793-798 MHz bands. The network providing
commercial operations in the 763-768 MHz and 793-798 MHz bands through the spectrum
manager leasing arrangement must be designed to automatically assign priority to public
safety users, to the exclusion and/or immediate preemption of any commercial use on a
dynamic, real-time priority basis, and to guarantee that public safety users suffer no harmful
interference or interruption or degradation of service due to commercial operations in the
763-768 MHz and 793-798 MHz bands.
§ 90.1408 Organization and structure of the 700 MHz Public/Private Partnership.
(a) The Upper 700 MHz D Block licensee and the Network Assets Holder and such other
related entities as the Commission may require or allow shall be formed by the winning
bidder of the Upper 700 MHz D Block license. The Upper 700 MHz D Block licensee, the
Network Assets Holder, and related entities as the Commission may require or allow must be
Special Purpose Bankruptcy Remote Entities formed to hold the license, to hold the shared
network assets, or for such other purpose as the Commission may require or allow. The
winning bidder of the Upper 700 MHz D Block license shall also form the Operating
Company, which must also be a Special Purpose Bankruptcy Remote Entity. Upon issuance
of the Upper 700 MHz D Block license, the winning bidder will assign all of its rights and
obligations under the NSA to the Upper 700 MHz D Block licensee, Network Assets Holder,
the Operating Company, and any other related entities that the Commission may require or
allow.
(b) The Upper 700 MHz D Block licensee and other related entities as the Commission
may require or allow shall have the obligation to build out the Shared Wireless Broadband
Network, as provided for in the NSA or otherwise as authorized by the Commission.
§ 90.1410 Network Sharing Agreement.
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The relationship between the Upper 700 MHz D Block licensee, the Public Safety
Broadband Licensee, and related entities as the Commission may require or allow will be
governed by the Network Sharing Agreement (NSA) and such other separate agreements as
the Commission may require or allow that are negotiated and entered into between the
parties. The NSA must, at a minimum, include the following terms:
(a) All of the substantive rights and obligations of the parties relating to the NSA, as
established by the Commission concerning the 700 MHz Public/Private Partnership.
(b) Network specifications that comply with § 27.1305.
(c) The definition of “emergency” for purposes of emergency priority access.
(d) All service fees to be imposed for services to public safety, including fees for normal
network service and fees for priority access to the D Block spectrum in an emergency.
(e) A detailed build-out schedule consistent with § 27.1327, including coverage of major
highways and interstates, as well as incorporated communities with a population in excess of
3,000.
(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 control requirements established in the
NSA.
(g) The Upper 700 MHz D Block licensee must offer at least one handset suitable for
public safety use that includes a seamlessly integrated satellite solution pursuant to the terms,
conditions, and timeframes set forth in the NSA.
(h) Any major modification of the terms of the NSA, related agreements or documents,
or such other agreements as the Commission may require or allow must be submitted to the
Commission for prior approval. All other modifications must be submitted to the Chiefs of
the Wireless Telecommunications Bureau and the Public Safety and Homeland Security
Bureau for prior approval.
(i) The NSA shall require, in a separate agreement, the granting of an irrevocable and
assignable right of first refusal to purchase the network assets if and whenever such assets are
otherwise to be sold and an irrevocable and assignable option in favor of the Public Safety
Broadband Licensee to purchase the network and all network assets if and whenever the
Upper 700 MHz D Block license is cancelled or terminated, by reason of default or for any
other reason, for a consideration equivalent to the fair market value of the tangible and
intangible assets sold. This right and option shall be senior to, and have priority over, any
other right, claim, or interest in or to the network or the network assets. The NSA shall also
include a fair market valuation methodology to determine the fair market value of the shared
wireless broadband network assets.
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(j) The NSA must have a term, not to exceed 10 years from February 17, 2009, that
coincides with the terms of the Upper 700 MHz D Block license and the Public Safety
Broadband License.
§ 90.1415 Establishment, execution, and application of the Network Sharing
Agreement.
The following requirements and processes relate to the establishment, execution, and
application of the NSA:
(a) Approval of NSA as pre-condition for granting the D Block License. The Public
Safety Broadband Licensee must negotiate an NSA and such other agreements as the
Commission may require or allow with the winning bidder for the Upper 700 MHz D Block
license. The NSA and related agreements or documents must be approved by the
Commission and then executed by the relevant parties. Parties to the NSA must also include
the Upper 700 MHz D Block licensee, the Network Assets Holder, and the Operating
Company, as these entities are defined in § 90.7.
(b) Requirement of negotiation. Negotiation of an NSA between the winning bidder for
the 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. Beginning three months from the triggering of the sixmonth negotiation period, the Public Safety Broadband Licensee and the winning bidder for
the Upper 700 MHz D Block license 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.
(d) Submission of final agreement. As soon as the parties have reached an agreement on
all the terms of the NSA, related agreements or documents, and such other agreements as the
Commission may require or allow but not later than five business days after the six-month
period for negotiation has expired, they must submit the NSA together with all agreements
and related documents referenced in the NSA, for review and approval by the full
Commission. The Commission will act on the NSA within 60 days of receipt. The
Commission may approve the NSA in its entirety, approve with modifications, or require the
parties to address additional terms or re-draft existing terms within a specified timeframe.
After the NSA is approved, the parties must execute the NSA and such other agreements as
the Commission may require or allow and submit executed copies to the Commission within
10 business days of approval.
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(e) Submission of disputed issues. If the parties have not reached agreement on all terms
of the NSA and related agreements by the end of the six-month period, they must notify the
Commission not later than five business days after the expiration of the six-month period of
the terms on which they have agreed, the nature of the remaining issues, each party’s position
on each issue, whether additional negotiation is likely to produce an agreement, and, if so, a
proposed deadline for reaching agreement on the NSA. Authority is delegated jointly to the
Chiefs of the Wireless Telecommunications Bureau and the Public Safety and Homeland
Security Bureau to resolve any remaining disputes.
(f) Resolution of disputes. Actions to resolve disputes may include, but are not limited
to: (1) granting additional time for negotiation; (2) issuing a decision on the disputed issues
and requiring the submission of a draft agreement consistent with the decision; (3) directing
the parties to further brief the remaining issues in full for immediate Commission decision;
and/or (4) immediate denial of the long-form application filed by the winning bidder for the
Upper 700 MHz D Block license.
(g) Default by winning bidder for Upper 700 MHz D Block license. If the winning
bidder for the Upper 700 MHz D Block fails to comply with negotiation or dispute resolution
requirements or fails to execute a Commission-approved NSA, its long form application will
be denied. If the long form application of the winning bidder of the Upper 700 MHz D
Block license is denied for any reason, including as a consequence of an action taken
pursuant to subsections (e) and (f), it will be deemed to have defaulted under §1.2109(c) and
will be liable for the default payment specified in § 1.2104(g).
§ 90.1420 Failure to comply with the NSA or the Commission’s Rules.
(a) Failure to comply with the Commission’s rules or the terms of the NSA may warrant
cancelling the Public Safety Broadband License. The potential remedies also include, but are
not limited to, assigning the license to another entity, directing the Public Safety Broadband
Licensee to transfer the assignable right to purchase the assets at fair market value, ordering
specific performance, or ordering removal and replacement of individual officers, directors
or member organizations of the Public Safety Broadband Licensee.
(b) If the Commission cancels or terminates the Upper 700 MHz D Block license, a fair
market valuation of the shared wireless broadband network assets shall be performed
immediately, pursuant to the fair market valuation methodology set forth in the NSA. In the
event that the Upper 700 MHz D Block license is awarded to a new entity, the Public Safety
Broadband Licensee’s option to purchase the network and all network assets if and whenever
the Upper 700 MHz D Block license is cancelled or terminated and its right of first refusal to
purchase the network assets if and whenever such assets are otherwise to be sold shall be
assigned to the new Upper 700 MHz D Block licensee and the new Network Assets Holder.
§ 90.1425 Resolution of disputes after grant of the Upper 700 MHz D Block License.
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(a) The Public Safety Broadband Licensee, the Operating Company, the Network Assets
Holder, and the Upper 700 MHz D Block licensee may at any time bring a complaint to the
Commission based on a claim that another party to the NSA has deviated from the terms of
the NSA, or a petition for a declaratory ruling to resolve the proper interpretation of an NSA
term or provision. The Commission also may at any time, on its own motion, determine to
address any material breach or interpret any NSA term or provision.
(b) The Commission shall have primary responsibility and jurisdiction for adjudicating
disputes that arise following execution of the NSA. The Commission may, however, require
the parties to first seek a settlement to the dispute or authorize the parties to resolve the
dispute through litigation or other means. Breach of license terms, the NSA, or the
Commission’s rules may result in cancellation of the Public Safety Broadband License, the
Upper 700 MHz D Block license, or both.
(c) The Chiefs of the Public Safety and Homeland Security Bureau and the Wireless
Telecommunications Bureau are delegated joint responsibility for adjudicating disputes.
§ 90.1430 Local Public Safety build-out and operation.
(a) The Upper 700 MHz D Block licensee and the Operating Company through its lease
arrangements shall, except in the two limited circumstances set forth herein, have the
exclusive right to build and operate the Shared Wireless Broadband Network.
(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 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.
(1) Options for early build-out in areas with a build-out commitment. In order to obtain
authorization to construct a broadband network as set forth above, the requesting public
safety entity must agree to one of the following:
(i) to, on its own, or through the Public Safety Broadband Licensee acting on its behalf,
construct the network at its own expense, and upon completion of construction, transfer the
network to the Upper 700 MHz D Block licensee, which shall then integrate that network
into the Shared Wireless Broadband Network constructed pursuant to the NSA; or
(ii) to, in agreement with the Upper 700 MHz D Block licensee, provide all funds
necessary for the Upper 700 MHz D Block licensee to complete the early construction of the
network, including any and all additional resource and personnel costs, allowing the Upper
700 MHz D Block licensee at all times to own, operate, and manage the network as an
integrated part of the Shared Wireless Broadband Network.
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(2) Negotiation of amendment to NSA. Under either early build out option set forth
above, the Public Safety Broadband Licensee, the Upper 700 MHz D Block licensee, and the
public safety entity must, prior to any construction, negotiate an amendment to the NSA
regarding this part of the network, specifying ownership rights, fees, and other terms, which
may be distinct from the analogous terms governing the Shared Wireless Broadband
Network, and such amendment must be approved by the Commission.
(i) Such amendment must provide the terms under which the Upper 700 MHz D Block
licensee shall receive full ownership rights and shall compensate the public safety entity (or
the Public Safety Broadband Licensee, where appropriate) for the construction of the
network; and shall, absent agreement to the contrary, provide for such transfer and
compensation to occur prior to the scheduled build out date for such network in the NSA.
(ii) Any right to compensation from the Upper 700 MHz D Block licensee related to
such early build-out shall be limited to the cost that would have been incurred had the Upper
700 MHz D Block licensee constructed the network itself in accordance with the original
terms and specifications of the NSA, as reasonably determined by the parties and negotiated
as part of the required NSA amendment required above. Such costs shall not include costs
attributable solely to advancing the date of construction or otherwise expediting the
construction process.
(3) Operations. The public safety entity may not commence operations on the network
until ownership of the network has been transferred to the Upper 700 MHz D Block licensee.
Further, no operations shall be allowed except those authorized and conducted pursuant to
the authority of the Public Safety Broadband Licensee.
(4) Attribution of early build-out to national benchmarks. Upon completion of
construction, transfer of ownership to the Upper 700 MHz D Block licensee, and
compensation as required herein, if applicable, the Upper 700 MHz D Block licensee may
include the network constructed pursuant to the early build-out provisions herein for
purposes of determining whether it has met its national build-out benchmarks and the buildout requirements of the NSA.
(5) Rights to build out and operate in areas without a build-out commitment. In areas for
which the NSA does not require the Upper 700 MHz D Block licensee to build out the
Shared Wireless Broadband Network, a public safety entity may build out and operate a
separate, exclusive network in the 700 MHz public safety broadband spectrum at any time,
provided the public safety entity has received the written approval of the Public Safety
Broadband Licensee and operates its independent network pursuant to a spectrum leasing
arrangement into which the public safety entity has entered with the Public Safety Broadband
Licensee.
(i) Such leasing arrangement shall not require the approval or consent of the Upper 700
MHz D Block licensee; however, the Public Safety Broadband Licensee must provide the
Upper 700 MHz D Block licensee with notice of the public safety entity’s intent to construct
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in that area within 30 days of receipt of a request from a public safety entity seeking to
exercise this option, and shall inform the Upper 700 MHz D Block licensee of the public
safety entity’s anticipated build-out date(s).
(ii) Should the Upper 700 MHz D Block licensee, within 30 calendar days from receipt
of notice of the public safety entity’s intent to construct in that area, certify in writing to the
Public Safety Broadband Licensee that it will build out the shared network in the area within
a reasonable time of the anticipated build-out date(s), as determined by the Public Safety
Broadband Licensee, the Public Safety Broadband Licensee shall not allow the public safety
entity to build and operate its own separate exclusive network in that area, provided that the
Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee execute an
amendment to the NSA indicating the Upper 700 MHz D Block licensee’s commitment to
build the network in that area. Such commitment shall become enforceable against the
Upper 700 MHz D Block licensee as part of its overall build-out requirements.
(iii) If the Upper 700 MHz D Block licensee does not exercise its option to commit to
build out the network in the requested area within 30 calendar days of receipt of notice of the
public safety entity’s intent to construct in such area, the Public Safety Broadband Licensee
and the public safety entity may proceed with a spectrum leasing arrangement, which must
be filed with and approved by the Commission prior to the public safety entity commencing
any operations. The spectrum leasing arrangement must take the form of a spectrum
manager leasing arrangement under the rules specified in § 1.9020 of this chapter, and
incorporate the following conditions:
(a) The network must provide broadband operations;
(b) The network must be fully interoperable with the Shared Wireless Broadband
Network;
(c) The network must be available for use by any public safety entity in the area;
(d) The network must satisfy any other terms or conditions required by the Public Safety
Broadband Licensee; and
(e) The public safety entity must construct and place into operation its network within
one year of the effective date of the spectrum manager leasing arrangement. If the public
safety entity fails to place the network into operation within one year, the Public Safety
Broadband Licensee shall terminate the spectrum leasing arrangement pursuant to §
1.9020(h)(3). The public safety entity may also seek extended implementation authority
from the Commission pursuant to the requirements of § 90.629 of this Part.
(6) Except as set forth herein, the separate network is not required to meet the other
specifications of the Shared Wireless Broadband Network. Absent agreement of the public
safety entity, the Public Safety Broadband Licensee, and the Upper 700 MHz D Block
licensee, the separate network may not operate using any spectrum associated with the Upper
700 MHz D Block license.
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(7) The Public Safety Broadband Licensee must file with the Commission any spectrum
manager leasing arrangement as specified in § 1.9020(e) of this chapter; such filing shall
identify the public safety entity leasing the spectrum, the particular areas of spectrum leased
as part of this build-out option, and the specific network infrastructure and equipment
deployed on such leased spectrum.
§ 90.1432 Conditions for waiver to allow limited and temporary wideband operations
in the 700 MHz Public Safety spectrum.
(a) Wideband operations in the 700 MHz Public Safety spectrum. Wideband operations
are prohibited in the public safety allocation of the 700 MHz band public safety spectrum
except where the Commission has granted a waiver pursuant to §§ 1.3 and 1.925 of this
chapter and subject to the additional conditions and requirements specified below. Grants of
waiver are restricted to the deployment of a wideband system in the consolidated narrowband
portion or the internal public safety guard band portion of the public safety broadband
spectrum. Where spectrum in the narrowband segment or internal guard band segment is
unavailable for wideband operations, public safety entities may request a waiver to operate in
the upper 1.25 megahertz of the public safety broadband spectrum.
(b) Any public safety entity seeking to conduct wideband operations within the public
safety allocation must file a request for waiver that is accompanied by an application for
authorization and includes the following information:
(1) a letter from the Public Safety Broadband Licensee, confirming that the proposed
wideband deployment is not inconsistent with the broadband deployment plan for the
affected or adjacent service areas; and
(2) a description of the conditions or transition requirements, if any, agreed to between
the applicant and the Public Safety Broadband Licensee.
(c) Additional requirement for wideband operations in the narrowband segment and
Internal Guard Band. If an applicant seeks permission to deploy wideband systems in the
narrowband segment, its waiver request must also include a letter from the appropriate
regional planning committee or state licensee confirming that the proposed wideband
deployment will not disrupt any regional or state planning efforts that are underway.
(d) Additional requirements and conditions for wideband operations in the broadband
segment. Permission to conduct wideband operations in the broadband segment will be
granted only where spectrum in the narrowband segment or the internal guard band is
unavailable for wideband operations. In no event will permission be granted to conduct
wideband operations in geographic areas scheduled for broadband deployment within the
first three years of the build-out plan for the Shared Wireless Broadband Network.
(1) An applicant seeking permission to deploy wideband systems in the broadband
segment must have first issued a request for proposal (RFP) that permitted interested parties
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to submit broadband proposals that are technically consistent with the Shared Wireless
Broadband Network.
(2) A request for waiver that seeks permission to deploy wideband systems in the
broadband segment must include the following information:
(i) a substantially supported, detailed technical showing demonstrating that insufficient
spectrum in the narrowband segment or the internal guard band is available to support the
desired wideband operations;
(ii) a showing that rejected responses to the required broadband network RFP were more
costly, provided less coverage as measured by throughput at the network edge, or were
otherwise inferior to the accepted wideband proposal; and
(iii) a detailed plan for integration of such wideband system into the Shared Wireless
Broadband Network. This plan must specify how and by what date the wideband applicant
will integrate its proposed wideband system into Shared Wireless Broadband Network and
must include a certification that the public safety entity will not seek reimbursement for any
costs involved in converting the wideband system to Shared Wireless Broadband Network
upon completion of that network in the applicant’s geographic area.
(3) Authority to conduct wideband operations in the broadband segment of the public
safety spectrum will be subject to the following conditions:
(i) All devices operating on the wideband system must be designed to interoperate with
Shared Wireless Broadband Network;
(ii) All waivers will expire automatically upon the Upper 700 MHz D Block licensee’s
initiation of service in the service area covered by such waiver.
(e) Secondary status of wideband operations. All wideband operations permitted under
this section shall be secondary to the authorized narrowband or broadband applications, as
applicable.
(f) License terms for wideband operations. Any secondary license to conduct wideband
operations in the public safety spectrum shall have a term of no more than five years.
(g) Renewal of wideband authorization. Any request for renewal of an initial
authorization to conduct wideband operations shall be filed not less than 180 days prior to
expiration of the license. All renewal requests must include a showing that continued
operation of the wideband system is in the public interest and must be accompanied by a
letter from the Public Safety Broadband Licensee confirming that continuing wideband
operations are not inconsistent with the broadband deployment plan for the affected or
adjacent service areas. The license term for any renewal of a license granted under the
waiver provisions herein shall not exceed three years. No more than one license renewal will
be granted.
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(h) Grandfathered wideband STA operations. Upon request, the Public Safety and
Homeland Security Bureau may grant a public safety entity that has constructed, deployed,
and was operating a wideband system as of July 31, 2007 pursuant to STA to extend the STA
grant for periods of no more than 180 days until, but not later than, six months following the
selection of the Public Safety Broadband Licensee.
§ 90.1435 Prohibition on discontinuance of Public Safety operations.
The Upper 700 MHz D Block licensee, the Operating Company, and the Network Assets
Holder are prohibited from discontinuing or degrading the broadband network service
provided to the Public Safety Broadband Licensee or to public safety entities unless either at
the request of the entity or entities in question or it has first obtained the approval of the
Commission. The Upper 700 MHz D Block licensee shall notify the affected public safety
entity or entities and the Public Safety Broadband Licensee at least 30 days prior to any
unrequested discontinuance or degradation of network service.
§ 90.1440 Reporting obligations.
(a) The Upper 700 MHz D Block licensee and the Public Safety Broadband Licensee
shall jointly file quarterly reports with the Commission. These reports shall include audited
financial statements, how the specific requirements of public safety are being met, detailed
information on the areas where broadband service has been deployed, which public safety
entities are using the broadband network in each area of operation, what types of applications
are in use in each area of operation, and the number of declared emergencies in each area of
operation.
(b) The Public Safety Broadband Licensee and the Upper 700 MHz D Block licensee have joint
responsibility to register the base station locations with the Commission, providing basic
technical information, including geographic location.
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APPENDIX C
Final Regulatory Flexibility Analysis
1.
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1150 an
Initial Regulatory Flexibility Analysis (IRFA) was included in the 700 MHz Further Notice1151 in
WT Docket No. 06-150, WT Docket No. 01-309; WT Docket No. 06-169, WT Docket No. 03264, CC Docket No. 94-102, PS Docket No. 06-229, and WT Docket No. 96-86. 1152 The
Commission sought written public comment on the proposals in these dockets, including
comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.1153
2.
Although Section 213 of the Consolidated Appropriations Act of 2000 provides
that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in
the 746-806 MHz Band,1154 the Commission believes that it would serve the public interest to
1150
See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
1151
See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Revision of the
Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94102, 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, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 8064 (2007) (700 MHz Report and Order and 700 MHz
Further Notice, respectively).
1152
See Service Rules for the 698-749746, 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, and Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones, WT
Docket No. 01-309, Notice of Proposed Rule Making, Fourth Further Notice of Proposed Rule Making, and Second
Further Notice of Proposed Rule Making, 21 FCC Rcd 9345, 9394 (2006) (“700 MHz Commercial Services
Notice”); Former Nextel Communications, Inc. 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, Development of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the Year 2010, WT Docket Nos. 06-169 and
96-86, Notice of Proposed Rule Making, 21 FCC Rcd 10413, 10440 (2006) (“700 MHz Guard Bands Notice”);”);,
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, Ninth Report and
Order and Further Notice of Proposed Rule Making, 2121Rulemaking, 22 FCC Rcd 14837, 14853 (2006) (“8064
(2007) (700 MHz Public Safety Ninth Report and Order and 700 MHz Further Notice””, respectively).
1153
See 5 U.S.C. § 604.
1154
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.
(continued….)
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analyze the possible significant economic impact of the proposed policy and rule changes in this
band on small entities. Accordingly, this FRFA contains an analysis of this impact in connection
with all spectrum that falls within the scope of this Second Report and Order, including spectrum
in the 746-806 MHz Band.
A.
Need for, and Objectives of, the Rules
3.
In the Second Report and Order, the Commission takes a number of steps to
facilitate access to spectrum and the provision of service to consumers, especially those in rural
areas, and to simplify and clarify our rules related to the commercial 700 MHz spectrum. It
designates a spectrum block in the upper portions of the commercial spectrum for a commercial
licensee that will be part of a public/private partnership (the “700 MHz Public/Private
Partnership”) entered with a national public safety broadband licensee for the public safety
broadband spectrum, in a reconfigured 700 MHz Public Safety Band, to promote the
development of nationwide interoperable broadband services for public safety users. The
Commission also changes the location of the existing 700 MHz Guard Band licenses, provides
for a one megahertz shift of the other commercial spectrum blocks in the Upper 700 MHz Band
and the 700 MHz Public Safety Band, and reduces the size of the Guard Band B Block to make
two additional megahertz of commercial spectrum available for auction.
4.
The band plan provides a balanced mix of geographic service area licenses and
spectrum block sizes for the 62 megahertz of commercial spectrum to be auctioned. The
Commission determined that it will auction two 12-megahertz spectrum blocks (comprised of
paired 6-megahertz blocks), one licensed by Cellular Market Areas (CMAs) and one by
Economic Areas (EAs); one 22-megahertz spectrum block (paired 11-megahertz blocks) by
Regional Economic Area Groupings (REAGs); and one 6-megahertz unpaired spectrum block by
EAs. It also designates one 10-megahertz spectrum block (paired 5-megahertz blocks), the
Upper 700 MHz Band D Block, to be licensed on a nationwide basis and used as part of the 700
MHz Public/Private Partnership entered between this commercial licensee and the licensee that
will be assigned the public safety broadband spectrum (hereinafter, the Public Safety Broadband
Licensee).
5.
In addition, the Commission replaces the current “substantial service”
requirements for 700 MHz Band commercial licenses that have not been auctioned with
significantly more stringent performance requirements, and makes unserved areas available to
third parties who wish to provide service to these areas. By adopting these more rigorous
requirements, the Commission ensures that the 700 MHz Commercial Services licensees put the
spectrum to use throughout the course of their license terms and serve the majority of users in
their license areas Additionally, for one commercial spectrum block in the 700 MHz Band – the
Upper 700 MHz C Block (700 MHz C Block)– the Commission imposes requirements on those
licensees to provide open platforms for devices and applications, and concludes that it would not
serve the public interest at this time to mandate broader openness requirements.
6.
The Second Report and Order also revises the 700 MHz band plan with respect to
the Upper 700 MHz Guard Bands, such that all existing A Block licenses relocate to a
(Continued from previous page)
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).
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reconfigured A Block between the C and D Blocks, pursuant to an agreement between all but
one of the Guard Bands licensees. As part of this agreement, the existing B Block licenses are
relinquished, and the B Block is reconfigured from 4 to 2 megahertz and located immediately
above the public safety narrowband spectrum. The reconfigured B Block serves as a guard band
to protect the public safety narrowband channels, and remains empty as a commercial allocation
at this time. With respect to the Guard Bands licensee that did not participate in the agreement,
its one A Block license and two B Block licenses are grandfathered, with minor modifications to
facilitate the overall revised band plan. In addition to these band plan issues with respect to the
Guard Bands, the Second Report and Order also revises the service rules with respect to the
reconfigured A Block, bringing it largely into parity with the adjacent Commercial Services
spectrum given the new spectral location and its relationship to the rest of the band including the
public safety spectrum.
7.
Further, the Second Report and Order seeks to achieve broadband
communications capabilities consistent with a nationwide interoperability standard for public
safety. The Commission expects that modern public safety services will increasingly depend on
the advanced communications capabilities afforded by wireless broadband technologies, which
should enable first responders to perform their vital safety-of-life and other critical roles. The
Second Report and Order re-designates the wideband spectrum to broadband use consistent with
a nationwide interoperability standard, and prohibits wideband operations on a going forward
basis in the newly designated broadband spectrum. The Second Report and Order also
consolidates the narrowband spectrum to the top of the Public Safety Band, locates the
broadband spectrum at the bottom of the Public Safety Band, and divides these segments with an
internal guard band. This reconfiguration reduces the amount of spectrum necessary to separate
and protect the public safety broadband and narrowband allocations, and facilitates partnerships
between public safety broadband operations and adjacent commercial broadband technologies,
thereby optimizing the 700 MHz public safety band plan. Finally, in order to promote the rapid
deployment of a nationwide, interoperable broadband public safety network, the Second Report
and Order creates a single nationwide geographic area Public Safety Broadband License which
will be administered by a single Public Safety Broadband Licensee.
8.
With regard to auctions-related issues, the Commission decides to utilize
anonymous bidding to enhance the effectiveness of the auction of 700 MHz licenses, as well as
allowing package bidding for the Upper 700 MHz Band C Block, and decides not to grant a
“new entrant” bidding credit for the 700 MHz Band licenses. The Commission also declines to
impose eligibility restrictions for the licenses in the 700 MHz Band. Finally, the Commission
will offer bidding credits in the D Block, as described fully below.
B.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
9.
No comments specifically addressed the IRFAs from any of the respective
proceedings. We have nonetheless addressed small entity issues found in comments in this
FRFA.
C.
Description and Estimate of the Number of Small Entities to Which the Rules
Will Apply
10.
The RFA directs agencies to provide a description of, and, where feasible, an
estimate of, the number of small entities that may be affected by the proposed rules, if
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adopted.1155 The RFA generally defines the term “small entity” as having the same meaning as
the terms “small business,” “small organization,” and “small governmental jurisdiction.”1156 In
addition, the term “small business” has the same meaning as the term “small business concern”
under the Small Business Act.1157 A “small business concern” is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration (SBA).1158
11.
Small Businesses. Nationwide, there are a total of approximately 22.4 million
small businesses, according to SBA data.1159
12.
Small Organizations. Nationwide, there are approximately 1.6 million small
organizations.1160
13.
Governmental Entities. The term “small governmental jurisdiction” is defined as
“governments of cities, towns, townships, villages, school districts, or special districts, with a
population of less than fifty thousand.”1161 As of 2002, there were approximately 87,525
governmental jurisdictions in the United States.1162 This number includes 38,967 county
governments, municipalities, and townships, of which 37,373 (approximately 95.9%) have
populations of fewer than 50,000, and of which 1,594 have populations of 50,000 or more. Thus,
we estimate the number of small governmental jurisdictions overall to be 85,931 or fewer.
14.
Wireless Service Providers. The SBA has developed a small business size
standard for wireless firms within the two broad economic census categories of "Paging"1163 and
"Cellular and Other Wireless Telecommunications."1164 Under both categories, the SBA deems a
wireless business to be small if it has 1,500 or fewer employees. For the census category of
Paging, Census Bureau data for 2002 show that there were 807 firms in this category that
operated for the entire year.1165 Of this total, 804 firms had employment of 999 or fewer
1155
5 U.S.C. § 604(a)(3).
1156
5 U.S.C. § 601(6).
1157
5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business
Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register.”
1158
15 U.S.C. § 632.
1159
See SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002).
1160
Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).
1161
5 U.S.C. § 601(5).
1162
U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, pages 272-273, Tables 415 and
417.
1163
13 C.F.R. § 121.201, NAICS code 517211.
1164
13 C.F.R. § 121.201, NAICS code 517212.
1165
U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size
(Including Legal Form of Organization,” Table 5, NAICS code 517211 (issued Nov. 2005).
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employees, and three firms had employment of 1,000 employees or more.1166 Thus, under this
category and associated small business size standard, the majority of firms can be considered
small. For the census category of Cellular and Other Wireless Telecommunications, Census
Bureau data for 2002 show that there were 1,397 firms in this category that operated for the
entire year.1167 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19
firms had employment of 1,000 employees or more.1168 Thus, under this second category and
size standard, the majority of firms can, again, be considered small.
15.
When identifying small entities that could be affected by the Commission’s new
rules, this FRFA provides information describing auctions results, including the number of small
entities that were winning bidders. However, the number of winning bidders that qualify as
small businesses at the close of an auction does not necessarily reflect the total number of small
entities currently in a particular service. The Commission does not generally require that
licensees later provide business size information, except in the context of an assignment or
transfer of control application where unjust enrichment issues are implicated.
16.
700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, the
Commission adopted size standards for “small businesses” and “very small businesses” for
purposes of determining their eligibility for special provisions such as bidding credits and
installment payments.1169 A small business in this service is an entity that, together with its
affiliates and controlling principals, has average gross revenues not exceeding $40 million for the
preceding three years.1170 Additionally, a “very small business” is an entity that, together with its
affiliates and controlling principals, has average gross revenues that are not more than $15
million for the preceding three years.1171 SBA approval of these definitions is not required.1172
An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and
closed on September 21, 2000.1173 Of the 104 licenses auctioned, 96 licenses were sold to nine
bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second
auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on
1166
Id. The census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
1167
U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size
(Including Legal Form of Organization,” Table 5, NAICS code 517212 (issued Nov. 2005).
1168
Id. The census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
1169
See Service Rules for the 746-764 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, Second
Report and Order, 15 FCC Rcd 5299 (2000).
1170
Id. at 5343 ¶ 108.
1171
Id.
1172
Id. At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz bands, the Commission is exempt from 15
U.S.C. § 632, which requires Federal agencies to obtain Small Business Administration approval before adopting
small business size standards).
1173
See “700 MHz Guard Bands Auction Closes: Winning Bidders Announced,” Public Notice, 15 FCC Rcd 18026
(2000).
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February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these
bidders was a small business that won a total of two licenses.1174
17.
Upper 700 MHz Band Licenses. The Commission released a Report and Order
authorizing service in the Upper 700 MHz band.1175 An auction for these licenses, previously
scheduled for January 13, 2003, was postponed.1176
18.
Lower 700 MHz Band Licenses. The Commission adopted criteria for defining three
groups of small businesses for purposes of determining their eligibility for special provisions
such as bidding credits.1177 The Commission has defined a small business as an entity that,
together with its affiliates and controlling principals, has average gross revenues not exceeding
$40 million for the preceding three years.1178 A very small business is defined as an entity that,
together with its affiliates and controlling principals, has average gross revenues that are not
more than $15 million for the preceding three years.1179 Additionally, the Lower 700 MHz Band
has a third category of small business status that may be claimed for Metropolitan/Rural Service
Area (MSA/RSA) licenses. The third category is entrepreneur, which is defined as an entity that,
together with its affiliates and controlling principals, has average gross revenues that are not
more than $3 million for the preceding three years.1180 The SBA has approved these small size
standards.1181 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one
license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002,
and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were
sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very
small business or entrepreneur status and won a total of 329 licenses.1182 A second auction
commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG
licenses and 476 CMA licenses.1183 Seventeen winning bidders claimed small or very small
business status and won sixty licenses, and nine winning bidders claimed entrepreneur status and
won 154 licenses.1184
1174
See “700 MHz Guard Bands Auctions Closes: Winning Bidders Announced,” Public Notice, 16 FCC Rcd 4590
(WTB 2001).
1175
Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules,
Second Memorandum Opinion and Order, 16 FCC Rcd 1239 (2001).
1176
See “Auction of Licenses for 747-762 and 777-792 MHz Bands (Auction No. 31) Is Rescheduled,” Public
Notice, 16 FCC Rcd 13079 (WTB 2003).
1177
See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), Report
and Order, 17 FCC Rcd 1022 (2002).
1178
Id. at 1087-88 ¶ 172.
1179
Id.
1180
Id. at 1088 ¶ 173.
1181
See Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications
Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999.
1182
See “Lower 700 MHz Band Auction Closes,” Public Notice, 17 FCC Rcd 17272 (WTB 2002).
1183
See “Lower 700 MHz Band Auction Closes,” Public Notice, 18 FCC Rcd 11873 (WTB 2003).
1184
Id.
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19.
Public Safety Radio Licensees. As a general matter, public safety radio licensees
include police, fire, local government, forestry conservation, highway maintenance, and
emergency medical services.1185 The SBA rules contain a small business size standard for
cellular and other wireless telecommunications companies, which encompasses business entities
engaged in wireless communications employing no more than 1,500 persons.1186 According to
Census Bureau data for 2002, in this category there were 8,863 firms that operated for the entire
year.1187 Of this total, 401 firms had 100 or more employees, and the remainder had fewer than
100 employees.1188 With respect to local governments, in particular, since many governmental
entities as well as private businesses comprise the licensees for these services, we include under
public safety services the number of government entities affected.
20.
Wireless Communications Equipment Manufacturers: Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing. While these entities are
merely indirectly affected our action, we see are describing them to achieve a fuller record. The
Census Bureau defines this category as follows: “This industry comprises establishments
primarily engaged in manufacturing radio and television broadcast and wireless communications
equipment. Examples of products made by these establishments are: transmitting and receiving
antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and broadcasting equipment.”1189
The SBA has developed a small business size standard for Radio and Television Broadcasting
and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or
fewer employees.1190 According to Census Bureau data for 2002, there were a total of 1,041
establishments in this category that operated for the entire year.1191 Of this total, 1,010 had
1185
See subparts A and B of Part 90 of the Commission’s Rules, 47 C.F.R. §§ 90.1-90.22. Police licensees include
26,608 licensees that serve state, county, and municipal enforcement through telephony (voice), telegraphy (code),
and teletype and facsimile (printed material). Fire licensees include 22,677 licensees comprised of private volunteer
or professional fire companies, as well as units under governmental control. Public Safety Radio Pool licensees also
include 40,512 licensees that are state, county, or municipal entities that use radio for official purposes. There are
also 7,325 forestry service licensees comprised of licensees from state departments of conservation and private
forest organizations that set up communications networks among fire lookout towers and ground crews. The 9,480
state and local governments are highway maintenance licensees that provide emergency and routine communications
to aid other public safety services to keep main roads safe for vehicular traffic. Emergency medical licensees (1,460)
use these channels for emergency medical service communications related to the delivery of emergency medical
treatment. Another 19,478 licensees include medical services, rescue organizations, veterinarians, persons with
disabilities, disaster relief organizations, school buses, beach patrols, establishments in isolated areas,
communications standby facilities, and emergency repair of public communications facilities.
1186
See 13 C.F.R. § 121.201 (NAICS code 517212); U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, “Employment Size of Establishments for the United States: 2002,” Table 2, NAICS code 517212.
1187
U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Employment Size of Establishments
for the United States: 2002,” Table 2, NAICS code 517212.
1188
Id.
1189
U.S. Census Bureau, 2002 NAICS Definitions, “334220 Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing”; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
1190
13 C.F.R. § 121.201, NAICS code 334220.
1191
U.S. Census Bureau, American FactFinder, 2002 Economic Census, Industry Series, Industry Statistics by
Employment Size, NAICS code 334220 (released May 26, 2005); http://factfinder.census.gov. The number of
(continued….)
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employment of under 500, and an additional 13 had employment of 500 to 999.1192 Thus, under
this size standard, the majority of firms can be considered small.
21.
Software Publishers. While these entities are merely indirectly affected by our
action, we are describing them to achieve a fuller record. These companies may design, develop
or publish software and may provide other support services to software purchasers, such as
providing documentation or assisting in installation. The companies may also design software to
meet the needs of specific users.1193 The SBA has developed a small business size standard of
$23 million or less in average annual receipts for the category of Software Publishers.1194 For
Software Publishers, Census Bureau data for 2002 indicate that there were 6,155 firms in the
category that operated for the entire year.1195 Of these, 7,633 had annual receipts of under $10
million, and an additional 403 firms had receipts of between $10 million and $24, 999,999. For
providers of Custom Computer Programming Services, the Census Bureau data indicate that
there were 32,269 firms that operated for the entire year.1196 Of these, 31,416 had annual receipts
of under $10 million, and an additional 565 firms had receipts of between $10 million and
$24,999,999. Consequently, we estimate that the majority of the firms in this category are small
entities that may be affected by our action.
D.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
22.
The projected reporting, recordkeeping, and other compliance requirements
resulting from the Second Report and Order will apply to all entities in the same manner. The
Commission believes that applying the same rules equally to all entities in this context promotes
fairness. The Commission does not believe that the costs and/or administrative burdens
associated with the rules will unduly burden small entities. The revisions the Commission
adopts should benefit small entities by giving them more information, more flexibility, and more
options for gaining access to valuable wireless spectrum.
23.
Performance Requirements. In this Second Report and Order, the Commission
replaces the current “substantial service” requirements for the 700 MHz Band commercial
(Continued from previous page)
“establishments” is a less helpful indicator of small business prevalence in this context than would be the number of
“firms” or “companies,” because the latter take into account the concept of common ownership or control. Any
single physical location for an entity is an establishment, even though that location may be owned by a different
establishment. Thus, the numbers given may reflect inflated numbers of businesses in this category, including the
numbers of small businesses. In this category, the Census breaks-out data for firms or companies only to give the
total number of such entities for 2002, which was 929.
1192
Id. An additional 18 establishments had employment of 1,000 or more.
1193
See U.S. Census Bureau, “2002 NAICS Definitions: 511210 Software Publishers”;
http://www.census.gov/epcd/naics02/def/NDEF511.HTM.
1194
13 C.F.R. § 121.201, NAICS code 511210.
1195
U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size
(Including Legal Form of Organization),” Table 4, NAICS code 511210 (issued Nov. 2005).
1196
U.S. Census Bureau, 2002 Economic Census, Subject Series: Professional, Scientific, and Technical Services,
“Establishment and Firm Size (Including Legal Form of Organization),” Table 4, NAICS code 541511 (issued Nov.
2005).
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licenses that have not been auctioned with significantly more stringent performance
requirements. These include the use of interim and end-of-term benchmarks, with geographic
area benchmarks for licenses based on CMAs and EAs, and population benchmarks for licenses
based on REAGs. Licensees must meet the interim requirement within four years of the end of
the DTV transition. Failure to meet the interim requirement will result in a two-year reduction in
license term, as well as possible enforcement action, including forfeitures. Licensees that fail to
meet the end-of-term benchmarks will be subject to a “keep-what-you-use” rule, under which the
licensee will lose its authorization for unserved portions of its license area, which will be
automatically returned to the Commission for reassignment.
24.
Licensees must demonstrate compliance with our interim and end-of-term
construction benchmarks by filing a construction notification with the Commission within 15
days of the passage of the relevant benchmark certifying that they have met our performance
requirements or, if they have not met our performance requirements, they must file a description
and certification of the areas for which they are providing service. The information contained in
the licensee’s construction notification must include electronic coverage maps and other
supporting documentation. The electronic coverage maps must clearly and accurately depict the
boundaries of each EA or CMA in the licensee’s service territory, and the areas where the
licensee’s signal strength is sufficient to provide service to users. In addition to filing electronic
coverage maps, each licensee must file supporting documentation certifying the type of service it
is providing for each EA or CMA within its license service territory.
25.
Guard Band Issues. The Second Report and Order relocates the A Block away
from the public safety narrowband spectrum with respect to the upper half of the original paired
A Block. Accordingly, the reconfigured A Block no longer serves as a guard band to protect the
public safety spectrum from commercial operations. The existing frequency coordination
requirement, which was created to protect public safety operations from Guard Bands operations,
is therefore eliminated with respect to the reconfigured A Block.
26.
Open Platforms for Devices and Applications. In this Second Report and Order,
the Commission adopts a requirement for the 700 MHz C Block licensees to provide open
platforms for devices and applications. 700 MHz C Block licensees must allow customers,
device manufacturers, third-party application developers and others to use or develop the devices
and applications of their choosing on the 700 MHz C Block network so long as they meet all
applicable regulatory requirements and comply with reasonable conditions related to the
management of the wireless network. The Commission does not, at this time, specify a
particular process for wireless service providers to develop reasonable network management and
openness standards, including through participation in standards setting organizations. The
Commission expects licensees to publish their standards once adopted, which will be nonproprietary, such that they would be open to any third party vendors and that the standards
applied to third parties will be no more restrictive than those applied to the provider’s preferred
vendors. The Commission also requires 700 MHz C Block licensees to provide to potential
customers notice of the customers’ rights to request the attachment of a device or application to
the licensee’s network, and notice of the licensee’s process for customers to make such requests,
including the relevant network criteria. In addition, 700 MHz C Block licensees are required to
establish a reasonable process for expeditiously reviewing and processing requests to employ
devices and applications on the licensee’s network and offer a specific explanation for denial of
any such request, and an opportunity for amendment of the request to accommodate the
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provider's concerns. The Commission also provides for its existing complaint procedures to be
invoked if a violation of this requirement occurs. Once a complainant sets forth a prima facie
case that the 700 MHz C Block licensee has refused to attach a device or application in violation
of the requirement or has otherwise violated the rule, the 700 MHz C Block licensee shall have
the burden of proof to demonstrate that it has adopted reasonable network standards and
reasonably applied those standards in the complainant’s case. The Commission commits to rule
on these complaints within 180 days.
27.
Public Safety Broadband. The Second Report and Order re-designates the
wideband spectrum to broadband use consistent with a nationwide interoperability standard, and
prohibits wideband operations on a going forward basis. The Commission will only grant
limited exceptions to this rule through a waiver process. As a result of the decision to prohibit
wideband operations outside of this waiver process, Regional Planning Committee plans already
approved or on file with the Commission will require amendment. The Second Report and
Order also consolidates the narrowband channels to the top of the public safety band, locates the
broadband spectrum at the bottom of the public safety band, divides these segments with an
internal guard band, and creates a single Public Safety Broadband License/Licensee to promote
the rapid deployment of a nationwide, interoperable broadband public safety network. The
relocation of public safety narrowband operations in the consolidated channels will entail some
additional reporting, recordkeeping and compliance efforts by existing public safety entities with
regard to the number and location of their affected narrowband handsets and base stations. The
Second Report and Order does not otherwise propose any additional reporting, recordkeeping or
other compliance requirements.
E.
Steps Taken to Minimize Significant Economic Impact on Small Entities, and
Significant Alternatives Considered
28.
The RFA requires an agency to describe in the IRFA any significant alternatives
that it has considered in reaching its proposed approach, which may include (among others) the
following four alternatives: (1) the establishment of differing compliance or reporting
requirements or timetables that take into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or reporting requirements under the
rule for small entities; (3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small entities.1197 We hereby
incorporate by reference the discussion in the Second Report and Order of our consideration of
the impact on small entities of the rules we adopt here.
29.
Band Plan Issues. The Second Report and Order revises the 700 MHz band plan
for the commercial services and public safety services in a manner that will improve the
opportunity of small entities to obtain valuable wireless spectrum by providing smaller licensing
areas that better meet the needs of small entities. The Commission’s goals for the 700 MHz
Band are to promote dissemination of licenses among a wide variety of applicants, including
small entities, accommodate the competing need for both large and small licensing areas, meet
the various needs expressed by potential entrants seeking access to spectrum and incumbents
seeking additional spectrum, and provide for large spectrum blocks that can facilitate broadband
1197
5 U.S.C. § 603(c).
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deployment in the band. To achieve these goals the revised plan provides for two 12-megahertz
spectrum blocks (comprised of paired 6-megahertz blocks), one licensed by CMAs and one by
EAs; one 22-megahertz spectrum block (paired 11-megahertz blocks) by REAGs; and one 6megahertz unpaired spectrum block by EAs. The revision also designates one 10-megahertz
spectrum block (paired 5-megahertz blocks), the Upper 700 MHz D Block, to be licensed on a
nationwide basis and used as part of the 700 MHz Public/Private Partnership.
30.
Providing for an additional 700 MHz Band spectrum block licensed on a CMA
basis (the B Block) will increase the opportunity of small entities to obtain smaller license areas
that meet their needs while avoiding the transaction costs associated with obtaining access to
spectrum in the secondary market, costs that are incurred when these small providers must
arrange the terms by which another licensee grants access to its spectrum by means of
partitioning, disaggregation, or spectrum leasing.
31.
In addition, the Commission adopts EAs as the geographic service area for
licenses in Block A of the Lower 700 MHz Band, making 176 licenses available in this block.
The Commission also adopts EAs for the unpaired 6-megahertz E block of the Lower 700 MHz
Band which further enhances the mix of geographic sizes for licenses in the band. These
decisions will also create opportunities for small entities to acquire license for small geographic
service areas in the Lower 700 MHz Band.
32.
Frequency Coordination and the Guard Bands. The service area definition for the
Upper 700 MHz Guard Bands is the MEA, which is a smaller license area and therefore can
provide greater opportunities for small entrants than larger service area definitions such as the
REAG. Accordingly, among the licensed Guard Bands and the lessees currently using their
spectrum, there may be a significant number of small entities. Additionally, continued
operations in the Guard Bands A Block may continue to involve a significant number of small
entities through Secondary Markets arrangements. Since the Second Report and Order removes
the requirement for all A Block operations to be frequency coordinated with public safety
entities, any small entity engaged in ownership of, or operations on, the A Block will find the
frequency coordination burden lifted to their significant benefit.
33.
Performance Requirements. In this Second Report and Order, the Commission
adopts stringent performance requirements for the 700 MHz Commercial Services licenses in
order to promote the provision of innovative services to consumers throughout the license areas,
including in rural areas. With regard to geographic-based benchmarks for licenses based on
CMAs and EAs, the Commission seeks to promote service across as much of the geographic area
of the country as is practicable. Parties that seek to acquire licenses based on CMAs and EAs
may be small and rural providers that are less likely to provide regional or nationwide service,
but they nonetheless play an important role in bringing new services to consumers in many of
these more rural areas. The use of small license areas such as CMAs will create opportunities for
small and rural businesses and will foster the deployment of competitive wireless broadband
services in rural areas. Because the Commission adopts smaller geographic license areas such as
CMAs to facilitate the provision of service, including broadband, in rural areas, it also adopts
performance requirements that are designed to ensure that service is offered to consumers in
these areas. Because of the 700 MHz band’s excellent propagation characteristics and suitability
for delivering advanced wireless services to rural areas, the Commission establishes benchmarks
that require build-out to a significant portion of the geographic are in those markets. In addition,
the performance requirements adopted here will discourage larger entities from purchasing
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spectrum for the purpose of warehousing it and thus may provide small entities with a greater
chance of obtaining valuable spectrum.
34.
In the Second Report and Order, the Commission adopts population-based
benchmarks for REAG licensees with large geographic areas in order to facilitate the roll out of
advanced services on a nationwide or regional basis. Because of the significant capital
investment and logistical challenges associated with building a regional or nationwide system
without existing infrastructure, population benchmarks, rather than geographic benchmarks, will
best allow a potential new entrant to achieve the economies of scale needed for a viable business
model, while also ensuring that a majority of the population in a given region may have access to
these services. Moreover, the performance requirements adopted here will discourage larger
entities from purchasing spectrum for the purpose of warehousing it and thus may provide small
entities with a greater chance of obtaining valuable spectrum.
35.
Additionally, the keep-what-you-use rule is pro-competitive and provides another
method for smaller license areas to be made available to small businesses, thus promoting access
to spectrum and the provision of service, especially in rural areas. This rule ensures that
spectrum covering areas that are not adequately built out is returned to the Commission and
others are given an opportunity to acquire licenses for this spectrum. Because the license areas
returned to the Commission under the keep-what-you-use rule are likely to be smaller in nature,
this rule will provide small entities with an additional opportunity to obtain valuable wireless
spectrum.
36.
Although the Commission recognizes that the performance and reporting
requirements for the 700 MHz Commercial Services licenses places burdens on both large and
small businesses alike, these requirements will further several important policy objectives
including taking advantage of the excellent propagation characteristics of the spectrum in the 700
MHz Band enabling broader coverage at lower costs, promoting the provision of innovative
services to consumers throughout the license areas, including rural areas, and allowing large
license areas to be served at lower infrastructure costs. Moreover, the inclusion of interim
benchmark reporting requirements ensures that licensees provide service to consumers as early
as possible. Because of the importance of these requirements, we do not believe that they should
be applied on a differential basis to large and small business. Neither do we believe that such
requirements will impose an unacceptable burden on small entities.
37.
License Terms. The Second Report and Order extends the license terms of all the
existing A Block licensees, given the changed circumstances of the band plan and service rules,
as the licensees are relocated to the reconfigured A Block. This license term extension will
benefit any Guard Bands licensees, and any lessees currently using their spectrum, that may be
small entities as they will have more flexibility in the use of their spectrum with a longer period
of time within which to make use of the spectrum.
38.
Partitioning and Disaggregation. In this Second Report and Order, the
Commission concludes that Section 27.15(d) of its rules regarding partitioning and
disaggregation should be amended to clarify how the performance obligations will apply to the
partitioning and disaggregation of the 700 MHz Commercial Services licenses that remain to be
auctioned. These modifications seek to continue to provide flexibility to licensees and third
parties to enter into partitioning and disaggregation arrangements that will facilitate the provision
of new services to consumers, including consumers in unserved and underserved areas.
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39.
Under the modifications of the Section 27.15 (d) rules relating to geographic
partitioning of new 700 MHz Commercial Services licenses, the Commission establishes two
options for partitioners and partitionees with regard to the newly adopted performance
requirements. Under the first option, the partitioner and partitionee must each certify to the
Commission that they will share responsibility for meeting the performance requirements for the
entire geographic license area. If the parties meet the end-of-term construction benchmarks, they
will retain the ability to continue to build out the unserved portion of their license areas. Parties
that fail to meet the end-of-term benchmarks will be subject to a “keep-what-you-use” rule,
under which they will lose their authorization for unserved portions of their license areas, which
will automatically cancel and return to the Commission for reassignment. This option enables
parties to share the cost of meeting the stricter buildout benchmarks as required by the
Commission under its new performance requirements, while ensuring that buildout will occur
over the original license are to the same extent as it would have occurred had the license never
been partitioned. Under the second option, the partitioner and partitionee must each certify that
it will independently meet the applicable performance requirements for its respective partitioned
service area. If the partitioner or partitionee fails to meet the four-year build-out requirement for
its respective area, then its license term will be reduced by two years. If the parties meet the endof-term construction benchmarks, they will retain the ability to continue to build out the
unserved portion of their license areas. Parties that fail to meet the end-of-term benchmarks will
be subject to an automatic “keep-what-you-use” rule, under which they will lose their
authorization for unserved portions of their license areas, which will automatically cancel and
return to the Commission for reassignment. This option provides a way for partitioners and
partitionees to ensure that their licenses will not be affected by the other party’s conduct with
regard to meeting the applicable performance requirements.
40.
Under the modifications of the Section 27.15(d) rules relating to disaggregation of
new 700 MHz Commercial Services band licenses, the Commission provides that the
disaggregator, disaggregate, or both the disaggregator and disaggregate working together, can
meet the four-year and end-of-term construction benchmarks for the entire geographic license
area. If either party meets the performance requirement, then the requirement will be satisfied
for both parties. If neither party meets the four-year build-out requirement, then each of their
license terms will be reduced by two years. If either of the parties meets the end-of-term buildout requirement, then this requirement is considered to be satisfied for both parties. Those parties
that meet the end-of-term construction benchmarks will retain the ability to continue to build out
the unserved portion of their license areas. Parties that fail to meet the end-of-term benchmarks
will be subject to an automatic “keep-what-you-use” rule, under which they will lose their
authorization for unserved portions of their license areas, which will automatically cancel and
return to the Commission for reassignment.
41.
Partitioning and disaggregation allow smaller or newly-formed entities to enter
the market for the first time, because they will be able to negotiate for portions of original
licenses at costs that are proportionately less than the entire license. Moreover, these
modifications provide the opportunity for small businesses to enter into partitioning and
disaggregation agreements that would enable them to share the cost of meeting the more
stringent performance requirements for the unauctioned commercial 700 MHz Band spectrum.
42.
Open Platforms for Devices and Applications. In order to promote innovation in
the 700 MHz spectrum band from the outset, the Commission is imposing certain conditions on
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the 700 MHz C Block to provide open platforms for devices and applications. The C Block – a
large 22-megahertz block (comprised of paired 11-megahertz blocks) – is of sufficient size and
scope to provide an environment conducive for the development and deployment of 4G services
designed to compete with other broadband alternatives, and to provide an opportunity for
innovators and entrepreneurs to develop equipment and applications that require substantial
bandwidth to realize their full potential. The requirements should also provide sufficient
potential market penetration to attract investment and achieve economies of scale in the
equipment marketplace. In addition, we believe that the open platform requirement for devices
and applications will provide additional opportunities for small entities to participate in the
device and application market, since such a requirement will make it easier for customers, device
manufacturers, third-party application developers, and others to use or develop devices and
applications made by small entities on the network of the C Block licensee.
43.
In adopting this requirement for the 700 MHz C Block, the Commission has taken
a targeted, focused approach to achieve benefits to consumers. In particular, the Commission
declines to impose additional openness requirements on the 700 MHz C Block, including
wholesale and interconnection requirements. In addition, the commission declines at this time to
impose the requirement to provide open platforms for devices and applications or other openness
obligations broadly in the 700 MHz Band, or in other spectrum bands.
44.
Licensee Eligibility. The Commission declines to impose eligibility restrictions
for the licenses in the 700 MHz band. The record does not demonstrate that open eligibility is
likely to result in substantial competitive harm in the provision of broadband services. There are
numerous actual and potential broadband service providers, and currently, consumers can obtain
broadband service from wireline providers, cable companies, satellite, and wireless providers.
Given this number of providers, it is unlikely that incumbent local exchange carriers, cable
providers, or large wireless carriers would be able to behave in an anticompetitive manner as a
result of any potential acquisition of 700 MHz spectrum. Furthermore, there are potential
competitive benefits to not imposing eligibility requirements. First, allowing incumbents to hold
700 MHz band licenses will provide opportunities for these carriers to extend service into rural
and hard-to-serve areas, which is a major goal the Commission seeks to achieve. Also, an
incumbent service provider may already be a rural provider and to limit their eligibility would be
contrary to the goals of the Commission. We also do not believe that imposing eligibility
restrictions for licenses in the 700 MHz band is necessary to provide small entities with the
opportunity to obtain such licenses. As discussed above, among other things, the smaller
licensing areas made available here will increase opportunities for small entities.
45.
Anonymous Bidding. In response to its request for comments on whether to use
anonymous bidding (or “limited information”) procedures in the auction of the new 700 MHz
licenses, the Commission received comments both in support of and in opposition to such
procedures. One of the supporters is a small licensee who argued that anonymous bidding would
bring about a more level playing field between large and small bidders.1198 The Commission
further concludes that the many uncertainties regarding the technologies that will be used in the
700 MHz Band will result in the potential anti-competitive use of detailed information regarding
bidding outweighing the benefit to some bidders of having such information.
1198
See McBride 700 MHz Further Notice Comments at 11.
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46.
The Commission further concludes that anonymous bidding should be employed
even if the pre-auction eligibility ratio indicates that competition in the auction will be
significant. Even in an auction with many competitors individual bidders could still use
retaliatory bidding unilaterally to block the market, and it is important to avoid that from
occurring especially given that the 700 MHz auction is going to offer multiple, substitutable
blocks of licenses for sale, with prices relatively high, and the outcome having possible
significant effects on post-auction market structure.
47.
The Commission does not believe that anonymous bidding will have a detrimental
effect on small entities. First, as discussed in Section III.A.3.a of the Order, the potential benefit
to bidders, such as small entities, of knowing the identity of other parties placing bids for
particular licenses appears likely to be less in this auction than in past Commission auctions, in
light of the early stage of development with respect to new services in these frequencies.
Second, because bidding information can be used by incumbents to deter or exclude new
entrants, we believe that anonymous bidding will increase the opportunities for new entrants,
including small entities, to obtain licenses.
48.
Package Bidding. Commenters are divided on the issue of package bidding for
the upcoming auction of the 700 MHz band of spectrum. While some commenters support
package bidding because they feel it is essential for a new entrant seeking to aggregate licenses
and offer service nationwide,1199 there are other commenters who feel that package bidding will
disadvantage bidders not bidding on packages, which are more likely to be small entities.1200
49.
The Commission concludes that package bidding, with respect to the Upper 700
MHz Band C Block, would serve the public interest by reducing the exposure problem that might
otherwise inhibit bidders seeking to create a nationwide footprint. Absent package bidding, the
exposure problem creates an opportunity for competitors to block a would-be package bidder
without actually competing for all the licenses in the package.1201
50.
Minimizing the exposure problem, by implementing package bidding, should
facilitate the entry of applicants whose business plans require the economies of scale that only
can be obtained with nationwide operation. The Commission further concludes that package
bidding solely with respect to licenses for the Upper 700 MHz Band C Block provides sufficient
opportunities to bid with minimal risk of an exposure problem. However, we limit package
bidding to the C Block so that bidders, including small entities, who are unwilling or unable to
compete against package bids will not be deterred from participating in the auction. The variety
of blocks and licenses that are not subjected to package bidding will provide any such bidders,
including small entities, with a wide array of opportunities.
51.
“New Entrant” Bidding Credit. The possibility of granting “new entrant” bidding
credits attracted far less comment than other issues relating to the auction of the 700 MHz
1199
See, e.g., Google 700 MHz Further Notice Comments at 7-8.
1200
See Aloha 700 MHz Further Notice Comments at 7-8; Blooston 700 MHz Further Notice Comments at 10;
Cellular South 700 MHz Further Notice Comments at 16; Leap 700 MHz Further Notice Comments at 9; MetroPCS
700 MHz Further Notice Comments at 22; RCA 700 MHz Further Notice Comments at 18; RTG 700 MHz Further
Notice Comments at 16.
1201
Frontline 700 MHz Further Notice Comments, Exhibit 1 at 22-23.
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licenses, and those parties that did respond were divided on the issue. The Commission
concludes that a “new entrant” bidding credit for the 700 MHz Band licenses is not needed to
facilitate the entry of new service providers. The Commission already offers substantial bidding
credits to small entities, many of which may be new entrants in the spectrum services market,
and we therefore do not believe that there is a need for an additional “new entrant” bidding
credit. In addition, the availability of multiple licenses in each and every market with varied
geographic sizes, coupled with the large number of licenses should offer new ventures, including
small entities, a variety of opportunities to provide service.
52.
Bidding Credits for the 700 MHz Public/Private Partnership. A number of small
entities have proposed, in their comments, that the Commission should offer designated entities
bidding credits with regards to the license that has been proposed by Frontline. 1202 In brief, these
commenters maintain that bidding credits will help potential applicants overcome efforts by
incumbents to prevent others from winning newly available licenses.
53.
The Commission concludes that it should provide applicants that are eligible to be
licensed as designated entities with bidding credits in the auction of the D Block license,
consistent with the Commission’s prior decision regarding bidding credits for 700 MHz licenses
and our current designated entities rules. This decision will improve the opportunity for small
entities to successfully bid for the D Block license.
54.
Public Safety Broadband. The Second Report and Order reallocates the wideband
spectrum to broadband use consistent with a nationwide interoperability standard, and prohibits
wideband operations within the newly designated broadband spectrum on a going forward basis.
The public safety community expressed broad support for a broadband allocation to enable
advanced communications capabilities. The availability of a contiguous block of broadband
spectrum, subject to a nationwide interoperability standard, enables partnerships with
commercial licensees in adjacent broadband spectrum. As a result, the band plan ultimately
enables public safety entities to utilize the 700 MHz spectrum in a more cost-effective and
spectrally efficient manner to address their homeland security and emergency response roles. In
particular, we believe that the interoperable broadband network will be of benefit to smaller
governmental entities who would otherwise be unlikely to have the resources to construct such a
network. Because the Commission does not anticipate that this reallocation will impose
additional economic burdens on public safety, and is in fact designed to reduce economic
burdens on public safety, the Commission has taken steps to minimize any adverse impact of the
rule changes.
55.
The Second Report and Order also consolidates the narrowband spectrum to the
top of the public safety band and locates the broadband spectrum at the bottom of the public
safety band, in light of the potentially significant benefits such reconfiguration will afford the
public safety community. The alternative would have been to retain the existing band plan.
The Further Notice sought comment on how to implement reconfiguration of the narrowband
channels with minimum disruption to incumbent operations. The Second Report and Order
accommodates public safety operations in the border areas with Canada and Mexico, and defrays
1202
See, e.g., McBride Spectrum Partners, LLC 700 MHz Further Notice Comments at 4-8; Blooston Rural Carriers
700 MHz Further Notice Comments at 7; Council Tree Communications, Inc. 700 MHz Further Notice Reply
Comments at 5-7.
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the costs of relocation by providing that such costs will be covered by the D Block Licensee.
This defrayal of costs should be of particular benefit to small governmental entities, which are
less likely to have the resources to fund such a relocation on their own. The Commission expects
that the number of entities impacted and the expected cost of reconfiguration should be relatively
minor. In order to receive reimbursement for the cost of the transition, however, affected public
safety entities are required to provide information regarding the narrowband radios and base
stations that they have deployed. We do not believe that such a reporting requirement will place
an unacceptable burden on small governmental entities.
F.
Report to Congress
56.
The Commission will send a copy of the Second Report and Order, including this
FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to
the Congressional Review Act.1203 In addition, the Commission will send a copy of the Second
Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy
of the Second Report and Order and FRFA (or summaries thereof) will also be published in the
Federal Register.1204
1203
See 5 U.S.C. § 801(a)(1)(A).
1204
See 5 U.S.C. § 604(b).
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APPENDIX D
Upper 700 MHz A Block License Modifications
Market
MEA001
MEA002
MEA003
MEA004
MEA005
MEA006
MEA007
MEA008
MEA009
MEA010
MEA011
MEA012
MEA013
MEA014
MEA015
MEA016
MEA017
MEA018
MEA019
MEA020
MEA021
MEA022
MEA023
MEA024
MEA025
MEA026
MEA027
MEA028
MEA029
MEA030
MEA031
MEA032
MEA033
MEA034
MEA035
MEA036
MEA037
MEA038
MEA039
MEA040
MEA041
MEA042
MEA043
MEA044
MEA045
MEA046
MEA047
MEA048
MEA049
MEA050
MEA051
Guard Band A Block
(746-747, 776-777 MHz)
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
PTPMS II Communications, L.L.C.
Pegasus Guard Band, LLC
Dominion 700, Inc.
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
328
Modified Guard Band A Block
(757-758, 787-788 MHz)
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
PTPMS II Communications, L.L.C.
Pegasus Guard Band, LLC
Dominion 700, Inc.
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700 Holdings, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Access 700, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Access 700 Holdings, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
Pegasus Guard Band, LLC
FCC 07-132
Federal Communications Commission
MEA052
Access 700, LLC
FCC 07-132
Access 700, LLC
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re:
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT Docket No. 06150); 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
No. 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
With this Second Report and Order, the Commission takes an historic step towards two
goals that have been priorities of mine as Chairman: (1) creating a nationwide, interoperable
public safety broadband network and (2) furthering pro-competition broadband policies designed
to increase penetration and ensure that consumers benefit from innovation and technological
advancements.
First and foremost, we have no greater responsibility than meeting the needs of public
safety. And I appreciate the presence of so many representatives of the public safety community
here today. During a crisis, public safety officials need to be able to communicate with one
another. We are all aware of problems that have been created by the lack of interoperability for
public safety communications during recent crises like 9/11 and Hurricane Katrina. Emergencies
– natural or man-made – do not make distinctions among emergency responders. It is imperative
that the Commission recognize these challenges and provide a communications solution for our
Nation’s first responders that is available to everyone, regardless of the uniform they wear or the
towns in which they live and work.
The public safety-private partnership we adopt today will ensure that public safety keeps
pace with the advances in communications and gives first responders the broadband
communications capabilities they need to protect safety of life and property of the American
public. It has been almost six years since brave police and fire fighters ran into the Twin Towers
and the Pentagon without an effective emergency communications system. We should not make
these brave men and women wait any longer.
While I also would have supported a network exclusively for the use of public safety, the
simple reality is that there currently is no way to fund such an enterprise. The use of a public
safety-private partnership, however, creates an opportunity to provide state-of-the-art
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technologies to our Nation’s first responders in a timely and affordable manner. Many national
and local public safety organizations have expressed support for a public-private partnership
approach as their last, best chance to make this network a reality. We cannot afford to let the
opportunity that the 700 MHz band offers for public safety pass us by.
The adoption of a National Public Safety Broadband Licensee to be a part of this
partnership is also the best way to establish a truly interoperable network. The local licensing
regime that has been used to date has resulted in a patchwork of networks that do not talk to each
other. We cannot keep licensing public safety spectrum in the same manner as before and expect
a different result. A National Public Safety Broadband Licensee will facilitate a unified national
approach to the use of this spectrum, finally enabling all public safety users to talk to each other
during a crisis. I therefore wholly support the public safety-private partnership adopted in today’s
order.
In addition, the license winner for about one-third of the spectrum will be required to
provide a platform that is more open to devices and applications. Consumers will be able to use
the wireless device of their choice and download whatever software they want onto it.
I am committed to ensuring that the fruits of wireless innovation swiftly pass into the
hand of consumers. Currently, American consumers are too often asked to throw away their old
phones and buy new ones if they want to switch cell phone carriers. And when they buy that new
phone, it is the wireless provider, not the consumer, who chooses what applications the consumer
will be allowed to use on that new handset.
Wireless consumers in many other countries face fewer restraints: for example, they can
take their cell phones with them when they change carriers, and they can use widely available
Wi-Fi networks – available in their homes, at the airport or at other hotspots – to access the
Internet.
This auction provides an opportunity to have a significant impact on the next phase of
wireless broadband innovation. A network that is more open to devices and applications can help
foster innovation on the edges of the network. As important, it will give consumers greater
freedom to use the wireless devices and applications of their choice when they purchase service
from the new network owner.
When the same decision was made decades ago on the wireline network, we saw an
explosion in innovation and choice. In the wake of the Carterfone decision, AT&T subscribers
went from renting black rotary phones to purchasing competitively priced, innovative phones
such as cordless phones with voice mail and caller ID. Investment in the market increased, new
phones and calling features were developed and consumers benefited. Ultimately, these rules
facilitated the development of the Internet, as consumers were able to attach modems to the
network and go anywhere the Internet could take them without interference from the network
owner.
We will ensure these open platform rules are implemented, through significant
enforcement mechanisms that place the burden on the licensee to demonstrate their compliance
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and that their policies are fair and reasonable. The auction provides a rare chance to promote
innovation and consumer choice without disrupting existing networks or business plans. Indeed,
the vast majority of spectrum used for wireless services will remain without such restrictions.
We must continue to encourage the critical investment needed to build the next
generation wireless network. Since I have been Chairman, I have advocated strongly that
applying network neutrality obligations, unbundling, or mandatory wholesale requirements to
networks can undermine investment incentives. I do not support such regulations. The Order we
adopt today does not apply these regulations to this block or any other block. The Commission
has found the right balance between providing incentives for infrastructure investment and
fostering innovation for new services and products.
The Commission recognizes that spectrum is a unique public asset, and we must obtain a
fair return on this asset for the American people. To ensure that a fair price is paid, the Order
includes a reserve price for this block of spectrum. That price, which is based on the winning
bids for spectrum in our recent AWS-1 auction, will safeguard the value of the spectrum for
American tax-payers.
Finally, the order adopted today provides a variety of block sizes and geographic areas,
which will allow for broad participation by potential bidders with a variety service plans and
business models. Stringent build-out requirements – the toughest ever imposed by the
Commission – will ensure that this spectrum is put to use quickly in both urban and rural areas.
Those who fail to follow through will face tough penalties including the loss of spectrum.
This mix includes a block of spectrum that contains the ingredients to allow a national
wireless broadband service to emerge. I have said it before, but it bears repeating, the upcoming
auction presents the single most important opportunity for us to achieve the goal of a nationwide
third broadband pipe – one that would be available to rural as well as urban Americans. With
the adoption of this order, we are one step closer to allowing all Americans to enjoy the benefits
of broadband competition – availability, high speeds, and low prices.
In conclusion, I am pleased that the Commission is adopting a fair and balanced plan that
will help:
1) Facilitate next generation wireless broadband services in both urban and rural areas;
2) Establish a public-private partnership to deploy a wireless broadband network for
public safety that will address the interoperability problems of today’s system; and
3) Provide a more open wireless platform that will facilitate innovation and investment.
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STATEMENT OF
COMMISSIONER MICHAEL J. COPPS
APPROVING IN PART, CONCURRING IN PART
Re:
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT Docket No. 06150); 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
No. 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
Today we set the ground rules for how some of the most valuable spectrum on earth will
be used. The stakes are enormous. Will our decisions today make our nation’s citizens safer in
the event of an emergency? Will they increase the number and quality of wireless services
available to American consumers—to all consumers, both urban and rural? Will they help
correct America’s dismal broadband performance?
Let’s begin with public safety, because that’s the most critical part of all this. As I have
many times said, my first preference—by a long country mile—would have been a fully-funded,
federally-funded public-safety-grade network reserved solely for first responders and built to the
specifications they deem essential for their job of protecting you and me. At this late date, that is
apparently not to be. In light of the options before us today, then, I believe that pursuing a
shared public-private model—and trying to make it work—is the next best choice. There are no
guaranteed outcomes here, but we have to find a way—finally—to get this done.
For far too long, our nation’s first responders have struggled with the lack of
interoperability. The terrible costs of this failure became tragically apparent in the aftermath of
9/11 and again following Hurricane Katrina. Today’s item creates a framework for building a
national broadband network, based on a common technical standard, that will allow universal
interoperability among every jurisdiction in the country. This represents a tremendous step
forward.
Our nation’s first responders have struggled for too long without finding the capital
necessary to build out a broadband network with the configuration and the features they so
desperately need and deserve. Given where we are today, I think it is entirely appropriate to
permit them to trade access to their spectrum during off-peak periods—but always with the
ability to preempt commercial use during any time of need—in return for access to a publicsafety-grade broadband network. This network will reach virtually all of the nation’s citizens
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within 10 years. It will be constructed to the standards that public safety demands and expects.
And it will harness the astonishing technological advances of the commercial wireless sector. If
it works—and it’s a big if—the American people will be appreciably safer.
Moreover, the shared network concept means that public safety will have access to 20
MHz of broadband spectrum in the event of an emergency, not just 10 MHz. This too is a
difference that can save lives. Bandwidth matters; speed matters.
One additional benefit of creating a national public safety licensee is the effect it will
have on the price and quality of equipment that first responders use. Today, we have thousands
of public safety agencies that deal with a handful of equipment manufacturers, so public safety
doesn’t have much protection against the higher prices big suppliers can charge for the tools
public safety must have. Our first responders can’t negotiate lower prices, nor can they drive
technology development. Today’s order changes that equation. It establishes a single public
safety purchasing block. This will result in equipment that is both better and less expensive,
exactly what our nation’s first responders need. The item also ensures that the national public
safety licensee—and not the commercial operator—will have the final word on which devices
public safety users can attach to the network.
I appreciate my colleagues’ willingness to work with me to build these many safeguards
for public safety into today’s order. But I also want to emphasize my belief that our work has
really just begun. At the end of the day, we need to ensure that this network actually works for
public safety. To me, this cannot and will not happen without strong and ongoing FCC
oversight. I have believed this for years. Today we put the Commission in the middle of the
public safety action—right where it should have been all along. When the parties reach a
network sharing agreement, the license will be granted only if the full Commission concludes
that the terms reached are in the public interest. If agreement has not been reached, the full FCC
has the authority either to decide outstanding disputes or to select another commercial entity to
negotiate a different network sharing agreement. After the license has been granted, there will
inevitably be questions about what a particular provision means or whether it is necessary to
adjust certain terms in the agreement. Again, the Commission will be at the table, and it will be
there during the ensuing operation of the license, too.
Only a strong, active and involved FCC can hold the commercial licensee to the spirit, as
well as the letter, of the network sharing agreement. I have no illusions that this process will be
easy—but the stakes are just too high to give this effort anything other than the fullest measure
of the Commission’s effort.
Let’s get one more thing on the table. The requirements we announce today are very
demanding. Building this network will involve costs above and beyond those required to build a
typical commercial network. But I think that these are the minimum process requirements
necessary to ensure that the network actually works for public safety. If the stringency of the
requirements we announce today means that no one shows up to bid on the commercial license,
or that the two parties ultimately cannot reach an agreement that ends up being in the public
interest, then I am perfectly willing to go back to the drawing board. I won’t be happy if this
happens, but I’m not about to cut corners if it means compromising public safety. Far better that
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public safety remains in control of its spectrum—and free to find another model for funding it—
than for this Commission to bless a sharing arrangement that does not fully protect the nation’s
citizens and its first responders.
Let me turn now to the commercial side of this auction. There is a lot in this part of the
Order of which we can be proud—but here, too, there are no guarantees and some last-minute
changes give me considerable pause. First, the good news. I commend the Chairman’s
leadership on the Carterfone issue. Six months ago, Carterfone was a term of largely historical
interest—an important and venerable decision, to be sure, but hardly on the tips of most
policymakers’ tongues. Even four months ago, when I called for a general rulemaking on how
Carterfone could be applied to the current wireless marketplace, I had little hope that such
principles would be codified in our wireless rules anytime soon.
Now, within just the last month, Carterfone and wireless open access have been on the front
pages of USA Today, the New York Times, and the Washington Post. They have been the subject of
Congressional hearings and industry and academic policy forums, as well thousands of emails and letters
to the Commission from citizens across the country. What a striking reminder of just how powerful a
good idea can be—especially when coupled with strong Congressional oversight and grass roots activism.
I find it extremely heartening to see that an academic paper—in this case by Professor Timothy Wu of
Columbia Law School—can have such an immediate and forceful influence on policy. Credit is due to
Professor Wu as well as many tireless advocates in the public interest and high-tech communities for
bringing this idea to the fore. As Congressman Ed Markey, who has been a true trail-blazer here, put it:
Carterfone “result[ed in] … incredible innovation and [was] an unquestioned policy success. The FCC
has a rare chance to foster similar innovation in the wireless marketplace in the upcoming auctions.”
Wireless Carterfone, in short, is an idea whose time has come.
It is especially heartening to see wireless open access getting so much attention because I
am a true believer in openness and decentralization when it comes to all of the industries this
Commission regulates. Whether we’re talking about media ownership, the future of the Internet,
video distribution, or ownership of wireless and wireline assets, I believe that reducing the power
of gatekeepers and increasing the intensity of competition is the right policy call. It’s the right
call because it returns power to consumers and entrepreneurs and limits incumbents’ power to
extract monopoly or oligopoly rents. The device and application openness principles that today’s
Order implements for 22 MHz of the commercial spectrum will mean more choices, better
services and lower prices. They will permit entrepreneurs to innovate without asking somebody
else for permission—just as the developers of the fax machine, dial-up modem, and Wi-Fi router
did.
Of course, as with so much of the Commission’s work, the devil will be in the details. It
is especially important that today’s item gives consumers, device manufacturers, and other
interested parties a right to seek redress if the C-block licensee seeks to discriminate against
them. I believe that this case-by-case approach strikes the appropriate balance between
preventing harm to the network and giving teeth to our anti-discrimination mandate. Justice
delayed is often justice denied, the old adage says, and that is why I am happy that we announce
today a 180-day shot clock for Commission enforcement decisions.
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Even though the device and application openness principles are indeed good news, the
Order does not go far enough in one important respect. We all know that America’s broadband
performance leaves a lot to be desired. To me, the culprit is clear: a stultifying lack of
competition in the broadband market, which in the words of the Congressional Research Service
is a plain old “cable and telephone . . . duopoly.” A 22 MHz block of 700 MHz spectrum is
uniquely suited to provide a broadband alternative, with speeds and prices that beat current DSL
and cable modem offerings. Maybe this can happen yet in this spectrum, but by declining to
impose a wholesale requirement on the 22 MHz C-block, the Commission misses an important
opportunity to bring a robust and badly-needed third broadband pipe into American homes.
A wholesale requirement would have been sound policy for several reasons. First,
requiring licensees to offer network capacity on non-discriminatory terms would have been an
enormous shot in the arm for smaller companies—including those owned by women and
minorities—that aren’t interested in or capable of raising the huge sums necessary to build a fullscale network. Smaller entrepreneurs deserve an alternate path to wireless access. Wholesale
would have been good news for them—and for consumers.
Second, a wholesale requirement would have leveled the playing field for companies that
want to get into the network business but cannot break through the defenses erected by the
massive incumbents who dominate the industry. It is not hard to see why companies with
extensive networks and millions of customers are generally able to outbid new entrants, even
deep-pocketed ones. After all, the incumbents are (quite rationally) willing to pay an enormous
“blocking premium” just to discourage new competitors. And their existing network
infrastructure gives them a huge cost advantage when it comes to building a new network. Our
current spectrum rules are tilted too much toward companies with built-in, competition-killing
advantages.
Moreover, due to the Commission’s short-sighted decision a few years ago to eliminate
spectrum caps, we have seen a wave of consolidation among wireless incumbents that has
substantially increased the hurdles facing potential new entrants. And now we live in a world
where the two leading wireless companies are owned in whole or in part by the leading wireline
telephone companies. It is no knock on these companies to say that they may be more than a
little reluctant to employ their spectrum holdings to put price and quality pressure on their
wireline broadband products. What else would we expect them to do? The solution is to
encourage an additional wireless competitor that has no affiliation with a wireline provider. A
wholesale requirement would have given unaffiliated companies the fighting chance they need.
Third, the record in this proceeding clearly demonstrates a strong business case for the
wholesale model. Some parties initially raised doubts about whether a wholesale business model
could be economically self-sustaining. I believe that the record compiled in this proceeding
answers that question. Several sophisticated companies and financial institutions have concluded
that wholesale is indeed a viable economic model.
I think it is very good news for consumers that we adopt build-out requirements in this
band that are among the strongest and most innovative that we have ever adopted. Use-it-orlose-it provisions, along with geography-based benchmarks in the lower band, will ensure that
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licensees have a reasonable period to make use of their spectrum rights, while also allowing third
parties a chance to provide service in areas where the original licensees are not. In one respect, I
would have gone further. I believe that Commissioner Adelstein’s proposal that licensees who
have met their 10-year benchmark should still be subject to “triggered” use-it-or-lose it
provisions—because if a competitor is willing to make use of remaining unused spectrum, it
should have the right to do so. Spectrum is too valuable a resource to allow it to lay fallow.
My deepening concern this afternoon is that this auction might not end up being the
stimulus to a third pipe, the right to attach devices, to run applications and to encourage the
innovation and entrepreneurship that we all hope for because of some add-on provisions. The
item now imposes reserve prices on each of the individual spectrum blocks, something without
precedent in previous auctions and something, it seems to me, rather at odds with letting the
market pick the auction block winners. The procedure in this Order carries chilling risk to the
success of the auction. If some of these blocks do not fetch the bid prices stipulated, perhaps
because of gaming of the worst sort, they will be re-auctioned with weaker build-out
requirements. If the 22 MHz block, where we hope for Carterfone open access principles, fails
to elicit a $4.6 billion bid, it will be re-auctioned without Carterfone open access. In the end, all
of this micro-managing virtually hands industry the pen to write the auction rules and to constrict
all the opportunities this spectrum held forth. The end result could be: same old, same old.
What a pity that would be!
In closing, we came farther on some things than many thought likely a few months, or
even a few weeks, ago. There is much to approve in this Order. I will concur in two parts
because wholesale open access is not stipulated and also because of the concerns I have
discussed regarding how the micro-managed reserve pricing scheme could subvert the higher
goals of the auction.
Many individuals and groups—too numerous to mention—worked hard to assist us in our
deliberations on this proceeding. I do want to thank the Bureaus and particularly commend
Chief Derek Poarch and Fred Campbell for their insights, vision, constant availability and just
plain dogged determination to get to a promising result. I want to thank the public safety
community who gave so generously of its perspective and counsel; consumer and advocacy
groups that worked to make this more consumer- and democracy-friendly, and the many
entrepreneurs and business leaders who shared their perspectives on how to make this effort
viable. I thank my personal staff, particularly Bruce Gottlieb, for his tireless efforts, and also the
staffs of my colleagues. I am grateful to Chairman Martin for his vision and courage, and I thank
each of my colleagues for their commitment to public safety and their yeoman work on this
important proceeding. This has been a truly monumental effort. I hope it works. And I pledge
my ongoing commitment to make that happen.
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STATEMENT OF
COMMISSIONER JONATHAN S. ADELSTEIN
APPROVING IN PART, CONCURRING IN PART
Re:
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT Docket No. 06150); 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
No. 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
Our decision today is one of the most significant and groundbreaking we have conducted
in the time I have served. These 700 MHz licenses are the finest crown jewels the FCC has to
put up for auction. This coveted spectrum presents us with a historic opportunity to facilitate
vibrant, spectrum-based opportunities for both consumers and wireless providers. I am pleased
that today’s item, to some extent, embraces this potential for the next generation of wireless
broadband service providers. I commend Chairman Kevin Martin for his leadership in steering
this item on a consensus path that serves consumers.
Most of the time, our decisions are relatively narrow – limited to a specific issue or
segment of industry. Other times, we are presented with an opportunity to shape a larger
segment of the market. On this rare occasion, we are presented with the dual opportunity to
fundamentally begin to change the way over 200 million U.S. consumers receive their wireless
services, while at the same time substantially redefining the FCC’s approach to spectrum policy
for years to come.
It would have been easier to stick with what’s tried and true in considering the 700 MHz
band. We could have declined to adopt any controversial conditions to open the market; we
could have stuck with our traditional substantial service construction standard; we could have
allowed public safety agencies to fend for themselves in trying to develop a long-awaited
interoperable network. We could hold a fine auction without much effort. But because our job
is to promote the public interest, the status quo was not an option.
I have heard the plea of 250,000 consumers who submitted comments in support of open
access. I have heard the concerns of Silicon Valley’s best minds expressing frustration with their
inability to innovate in the wireless space. I have heard the public safety community’s cry for
help, and their willingness to join their spectrum with a commercial provider in order to create a
unique public-private partnership. And we’ve responded.
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Open Access. While this item does not deliver everything consumers and innovators
wanted, or many of the improvements I suggested, our decision today represents an important
step, if a modest one, in the right direction. We can be proud to say we are offering consumers a
new paradigm they have longed for and certainly deserve. We cannot afford to let innovation in
wireless devices and applications take root in Europe and Asia before it can occur in the U.S. If
we want to maintain our world leadership in technology, we need to harness the full creativity of
our many wireless engineers and entrepreneurs. We need to unleash them from the shackles of a
handful of gatekeepers who dominate access to the wireless mass market.
The item before us is a positive step for consumers because its sets in motion a new
approach. I am pleased with the willingness of my colleagues to support a meaningful, though
not perfect, open access environment on a significant portion of the 700 MHz spectrum. It
represents an honest, good faith effort to establish an open access regime for devices and
applications.
I especially appreciate my colleagues’ willingness to work with me to include real
enforcement with teeth, and provisions to promote a genuinely open standard that innovators can
build upon. The Order before us is significantly improved in these areas, although the true test
of their effectiveness will be seen over time and through future Commission actions and
oversight. So, we’ll need a true commitment if this Order is going to be effective. If successful,
our approach can ultimately lead to benefits for the many consumers who so desperately want
unfettered ability to use any wireless handset and download any application they want on the C
Block spectrum.
The past several years have seen an explosion of new opportunities for consumers, like
Wi-Fi, WiMax, and more advanced mobile services. But despite these technological advances,
consumers are frustrated by arbitrary limitations on the types of devices and functions they can
access. The open access requirements we adopt today can and should improve the consumer
experience. Now, instead of being limited to purchasing a phone and service contract from one
network provider, a consumer can purchase any wireless device compatible with the C Block
network and use all of the available features and functions.
This also means progress for wireless innovators – application developers, manufacturers,
and carriers alike who will now be unleashed to bring new multi-media products to market for
use on this spectrum. The Internet has been a source of remarkable innovation and an engine for
economic growth and productivity. It is critical that we bring the benefits of the Internet to the
wireless world, and I believe our actions today take us in that direction.
Wholesale. One of the best options for promoting broadband, particularly in rural areas,
and for providing new competition all across the country, is maximizing the potential of
spectrum-based services. Instead of the third “pipe,” this holds promise as the third “channel.”
Or – if we can wax truly optimistic – perhaps we have an opportunity for a fourth or fifth
channel through the innovative use of spectrum. Ideally, this auction will facilitate the
emergence of new broadband channels with the goal of providing consumers everywhere the
benefits of a high-quality wireless broadband network.
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Though we have hope and expectations for this auction, we must recognize that today’s
decision alone won’t solve our broadband challenges, nor will it provide any instant remedies.
Even if all goes well, today’s decision won’t afford opportunities until 2010 at the earliest. Yet,
right now, we face major challenges bringing affordable, truly-high speed broadband to all our
communities and ensuring that we give our citizens the same choices and tools that are available
to citizens in the countries that are our leading global competitors. So, we can certainly ill afford
to claim “victory” and sit idly on our hands for the next two plus years.
While I remain hopeful that such a third channel does emerge, I am concerned that we
haven’t done enough here to open up these critical airwaves to badly needed competition in the
broadband space. Those who argue such measures are not necessary because the wireless market
is already competitive miss the point. The real problem is the lack of competition in the
broadband market, where 96 percent of consumers are served by the incumbent telephone or
cable company.
I believe that a truly open wholesale model would stand as a breeding ground for
innovation, for allowing new and diverse competitors to flourish, and for spurring unparalleled
levels of competition into the broadband marketplace. While this item represents progress for
consumers in terms of new openness for devices and applications, I can only concur to this
portion of the item because we could have done more to promote open markets by adopting a
wholesale model to attract vigorous competitive alternatives.
We have also lost an opportunity to provide crucial bidding credits to designated entities
that wholesale fully built-out network services. I think it is essential that we revisit our policies
in this respect to ensure that all bidders have opportunities to bid, particularly where wholesale
service is a compelling option for new and diverse providers.
We have had to strike a compromise – and while the measures we take here today are less
than what I would have proposed, they are significant and will serve consumers well. At the end
of the day, though, I am afraid we may have missed a golden opportunity to open that elusive
third channel into the home.
Band Plan and Service Rules. I’ve often talked of “spectrum facilitation” – looking at all
approaches, technical, economic or regulatory, to get spectrum into the hands of operators ready
to serve consumers at the most local levels possible. We have a special responsibility to
establish band plans that allow for a diversity of license sizes and to maximize the level of
utilization by giving more options so that the market can perform most efficiently. I recognize
that many small providers believe that we have failed to provide for them today. I am somewhat
frustrated that the pro-consumer open access provisions were tied to a large 22 MHz block, and
would have been happy to break that into pieces that could have better accommodated the needs
of a variety of sizes of players. I am also concerned that the reserve price and second auction
requirements set out in this item leave open a real potential for gaming and may result in
unintended consequences.
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But I am pleased that we have added a paired Economic Area block in the lower band to
the Cellular Market Area license already set for auction. And, as discussed below, we have
adopted aggressive build-out requirements to promote network buildout. These are significant
changes that will help provide additional opportunities for small and mid-sized interests, rural
providers, and new entrants.
Our job at the FCC is to do whatever we can to promote spectrum-based opportunities in
the future. To get there, I am continually evaluating the FCC’s service and construction rules to
ensure that our policies do not undercut the ability of wireless innovators to get access to new or
unused spectrum. I have advocated a carrot and stick approach. We want to promote flexibility
and innovation, but since the spectrum is a finite public resource, we want to see results as well.
In our item today, we adopt some of the strongest performance requirements in history to
ensure that this wireless frontier truly gets developed. As we did with the homesteaders 150
years ago, we are happy to get this prime real estate in the hands of those that will use it. Just
like the government required of homesteaders, we want this fertile soil tilled and put into use,
including in rural areas of the country. Out of this development will sprout the fruits of
innovative product and service offerings to every corner of America.
Regrettably, though, I have long advocated the adoption of a triggered “keep what you
use” approach to spectrum policy, and I am disappointed that such an approach is not adopted in
this item. I am hopeful we can make progress on this because I think it presents the best vehicle
to ensure that fallow spectrum is either put to use or made available to other interested parties.
Public-Private Partnership for Public Safety. Finally, I’d like to turn to perhaps the most
paramount issue for this Commission: public safety. The role of communications is so important
during emergencies, whether citizens are trying to find out what is happening with their families
or emergency personnel are responding to an urgent situation. It is critical that the Commission
provide the best leadership possible to ensure that communications are fully operational during
these most serious events. Indeed, this is one of our core directives under the Communications
Act of 1934, codified in the Act’s very first section.
The Commission can and must play a key role in improving our nation’s disaster
preparedness, network reliability, and communications among first responders. This item marks
a pivotal step in addressing the needs of public safety. Six years after the tragedies of 9/11 and
three years after the 9/11 Commission issued its report on terror attacks on the United States, our
country is still without a national interoperable public safety broadband network. Policymakers
all agree that our first responders need the best technology and communications network
possible. Yet to date, there have been no other viable plans brought forward to realize the
critical need for an interoperable network for public safety.
The implementation of this shared commercial and public safety network presents a
myriad of complex and novel issues. There is no guarantee that the model we've created here
will nurture a nationwide interoperable public safety system that is both commercially viable and
technically feasible. And while I would prefer direct Federal funding for building a national
public safety broadband network, it presents the only option available to us at the Commission.
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For this reason, I am happy that this Commission is stepping forward to meet this challenge by
paving the way for a public/private partnership. This may be the only way to realize the
important goal of making a nationwide and interoperable network truly available to our nation’s
first responders.
Conclusion. There’s an old expression that to make an omelet, you have to break some
eggs. Today, we are cooking up a new age of wireless services. I appreciate the steps we are
taking, and am pleased that we are moving forward in ways that this Commission would have
never even considered a year or two ago. I look forward to a successful auction and the
successful implementation of our exciting new policies.
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STATEMENT OF
COMMISSIONER DEBORAH TAYLOR TATE
APPROVING IN PART, CONCURRING IN PART
Re:
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT Docket No. 06150); 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
No. 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
To begin, I also would like to thank the staff of the Wireless Bureau and the Public Safety and
Homeland Security Bureau for their incredibly hard work on this item.
With the upcoming auction of spectrum in the 700 MHz Band, we have the historic opportunity
to generate billions of dollars for the U.S. Treasury and its taxpayers, spur the development of
broadband to rural Americans, and support the creation of a nationwide interoperable broadband
communications network for the benefit of state and local public safety users—and ultimately for
the safety and security of all Americans. A majority of this Commission has agreed to the rules
established by this item and I cannot say they are totally wrong. I may not agree with their
reasoning or philosophy, but this is a very close call. Given the importance of this auction, our
statutory time constraints and my desire to always try to reach a consensus, overall I support the
item, noting my strong support for the portions of the order related to public safety service, while
being lukewarm regarding the portion of the item that places what my colleagues call “open
access” in the C Block on devices. I can only concur as to the majority’s extension of open
access to applications. There is much that is good about this item, but it is by no means a perfect
one.
I would have preferred, as some commenters noted, to have a full and open hearing, time for
thoughtful discussion within the context of another, more appropriate legal venue. However, this
was my only chance to have what I consider a more positive impact on a less than perfect
experiment.
First and foremost is our joint desire and one we have all spent a great deal of time discussing: a
nationwide broadband infrastructure for public safety. The promise of this type of network will
help finally fulfill important and indeed life-saving goals of the 911 Commission, our own postKatrina panel as well as what we have seen and heard around the nation: the ability for a
firefighter and a police chief to communicate during a local emergency.
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Regarding our public safety community, the dissemination of vital information and interoperable
communications are the backbone of our defense against attacks on our homeland, as well as our
ability to respond to natural disasters or even an environmental crisis or pandemic. Today’s item
strengthens this defense. In addition, we re-band the public safety spectrum in a way that will
allow more broadband service to the public safety community by working in cooperation with
the commercial licensee involved in a public/private partnership. With input from the public
safety community regarding their needs and desires and a number of fascinating, entrepreneurial
concepts proposed in the comments, the public/private partnership made possible by this order
also will help create important incentives for a commercial entity to serve private consumers as
well as the public safety community as they protect the safety of life, health, and property of all
Americans. We also adopt strict build-out rules for the commercial licensee in this partnership,
with an aggressive schedule for serving public safety users.
In addition, I am pleased that the item helps promote broadband service in rural America.
Broadband deployment means, or should mean, the availability of advanced services to all
Americans. As a former state official in a state with a large rural population, expanding the
availability of broadband beyond the largest cities is important to me. Just last week, I joined
Tennessee officials for the announcement of “Connect Tennessee”. This public-private
partnership, already wildly successful in Kentucky, will be a blueprint for expanding and
encouraging all types of broadband connectivity. This item takes an important step towards this
goal by adopting smaller geographic license areas for almost half of the spectrum to be auctioned
in the 700 MHz Band. Such a policy makes it easier for small and rural service providers – firms
that often best know the rural consumer – to acquire the spectrum they need to serve in these
rural markets. We also establish strict build-out requirements to ensure that the majority of
consumers, including those in rural areas, are served.
For the most part, the rules that we apply to the 700 MHz Band also will allow licensees the
flexibility they need to experiment and develop those services that are demanded by consumers.
Similarly, the mix of geographic license areas – including smaller license areas over CMAs and
EAs as well as larger license areas – will allow potential service providers of all sizes to more
easily acquire spectrum licenses that meet their business needs.
We take other steps in this order in a similar effort to allow consumers more control over the
devices and applications they use in one specific block, the Upper 700 MHz C Block. I am
hesitant to use the term “open access,” since it means different things to different people. Here, I
interpret our decision to pertain to “unlocking and unblocking” legal devices and applications as
used by the consumer, while also recognizing and specifically allowing for protection of the
network, and nothing more. I hope this decision will unleash untold new devices and
applications that users will be able to enjoy at home, at work, on the go, in hotspots, and in rural
areas.
Many consumers want mobile devices that are not tied to any one network. For this reason, I
support device portability as yet another means of consumer choice. I also recognize that at least
some network operators increasingly are giving their customers this option, or stating they may
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give this option, in the future. Thus, to some extent, the item we adopt today simply codifies
what the market already is doing.
Many consumers also want to access a variety of applications, including some currently not
available under arrangements with many network operators. This issue poses great potential for
incredible consumer benefit. It also poses risks.
Moreover, we should keep in mind that our wireless infrastructure, including commercial
wireless infrastructure, plays an important role in supporting public safety and homeland
security. The conditions we adopt today are designed to apply so long as the operator’s network
is properly protected. We should not underestimate the value of reasonable requirements
established by a network operator to protect its network and allow for compliance with its
regulatory obligations, such as an obligation to provide e911 service.
None of us would want an e911 call to go unanswered because it could not find its way through a
maze of movie and music downloads, or malicious software. Thus, the network operator must be
able to reasonably manage the foreign applications on its network.
I also recognize that, in adopting these limited conditions, we also may influence the next
generation of industry structure. Mandating a certain type of industry structure in one band may
have a positive impact, and certainly that is what we hope. Again, we must carefully consider
the risks.
We should not forget that the U.S. wireless market that has so effectively served American
consumers is one of the most competitive in the world, with prices lower, and usage higher, than
any country in Europe and almost any country in the world. It also is a market with great
innovation, including, most recently, the Apple I-phone and a Sprint Nextel partnership with
Google to bring applications via WiMax service.
I hope today’s item will not result in unexpected negative consequences, such as consumers
seeing less of such innovations or losing access to the many packages of services they enjoy
today. If this effort is successful, consumers will enjoy the fruits of one additional type of
business model in the years to come. In the end, it is the consumer and the marketplace who
will be the judge.
It is with these concerns that I support the narrowly tailored requirements in this order.
However, let me be clear regarding what it does not include. As adopted here, these rules do not
apply to any currently issued spectrum license. They do not directly affect any existing network.
They do not affect any existing pricing structure. Carriers will still be free to establish business
plans of their choice, including, for instance, pricing models based on the amount of bandwidth
used, tiered pricing, or other innovations we have not yet seen. Carriers also will retain the
ability to establish reasonable safeguards in order to protect their network. Moreover, even if a
device meets network certifications, wireless providers of course may stop malicious or illegal
applications. Similarly, carriers will not be liable for harms that arise out of the use of foreign
devices, including harms related to applications used on such devices, much like our treatment of
cable and wireline providers when customers use foreign devices on their networks. Given our
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recognition of the importance that wireless infrastructure plays – and will continue to play for
years to come – in homeland security, the carriers are held harmless for devices and applications
that cause network failures that may affect e911, CALEA, or other social obligations required by
law.
We also provide even more safeguards regarding the auction proceeds and the potential winning
bids pursuant to the Deficit Reduction Act of 2005, by setting a reasonable reserve price for
spectrum blocks in this auction. Thus, if we are wrong about the “open access” conditions and
the reserve price is not met, then this spectrum block, as the Chairman recently testified, will
immediately be re-auctioned without any of these conditions.
My hope is that we have created an incubator for the next killer app, the next platform or the next
cool device. In fact, the entrepreneur-inventor who will make all this happen is probably just in
the 8th grade. We have provided one finite place to encourage the next fantastic innovation to
occur and for Americans to roam free across networks, miles and corporate business models.
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STATEMENT OF
COMMISSIONER ROBERT M. McDOWELL
APPROVING IN PART, DISSENTING IN PART
Re:
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT Docket No. 06150); 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
No. 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
First, I would like to thank my colleagues, the dozens of bureau professionals, the scores
of representatives from the tech community, the investment community, consumer, public safety,
public interest groups, and potential bidders - both large and small - with whom I have met and
who have worked so hard on what is being dubbed the “auction of the century.” Thank you for
your suggestions and insight regarding what is the best way to use this spectrum to meet the
demands of American consumers. This is an historic day for the Commission and for America.
The Order before us has certain positive attributes. Among them is the plan to spark a
public/private partnership for public safety by allocating an additional 10 megahertz of spectrum
to aid in the construction of a nationwide, interoperable network. This plan has been assembled
as the result of close coordination with the public safety community, and I am pleased to support
it. We all owe many thanks to my distinguished colleague, Commissioner Copps, for his
passion, vision, leadership, and toil on this matter that is so vital to our country. Of course, the
next step is to ensure that a bidder willing to accommodate public safety’s specifications buys
this slice of spectrum at auction and builds it out in a timely manner with state-of-the-art
technology. With today’s action, public safety will have about 107 megahertz of spectrum at its
disposal.1 So it appears to me that ongoing efforts should more closely focus on attaining the
quickest and most efficient use of this spectrum. Protection of America’s security can’t wait any
longer.
1
See Report to Congress on the Study to Assess Short-Term and Long-Term Needs for Allocations of Additional
Portions of the Electromagnetic Spectrum for Federal, State and Local Emergency Providers, Federal
Communications Commission ¶ 5 (rel. Dec. 21, 2005).
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Another positive attribute of today’s Order is the band plan for the commercial blocks of
the 700 MHz spectrum, which I am supporting. This band plan has been advocated by a wide
variety of interested parties, including possible new entrants, Silicon Valley companies, as well
as existing wireless license holders. The band plan, minus the open access condition, could
provide new opportunities for a wide variety of technologies and business plans.
With respect to performance requirements for the commercial spectrum, I have listened
to parties discuss the merits of various requirements with an open mind. On the one hand, it is
important that the Commission not set the bar too high, which may cause licensees to deploy less
robust technologies. On the other hand, this spectrum has excellent propagation characteristics,
so network construction should be more economically efficient. Certainly we want to ensure that
all Americans, no matter where they live or work, have prompt access to advanced wireless
services. I support the requirements set forth in the Order, and am pleased that the new rules will
allow interested entities access to any un-built spectrum sooner rather than later.
After careful deliberation, my conclusions regarding some of the other more-publicized
issues are as follows:
1)
While we can agree on the destination -- consumers should be able to enjoy
device and application portability if they want -- we may respectfully disagree
about the best path to get there;
2)
In an unencumbered auction, any winning bidder is free to offer those features
without restrictions;
3)
Large wealthy corporations interested in a particular business plan do not need
the government’s help in this auction; and
4)
In the absence of market failure, I favor a market-based pro-competition
solution to the challenges raised in this proceeding over a prescriptive
regulatory approach.
In other words, I am disappointed that the majority didn’t try to work with industry to forge a
consensus solution rather than rushing to regulate without thinking through possible unintended
consequences.
As background, my original vision for the 700 MHz auction was for our rules to
maximize investment, innovation, and consumer choice by promoting competition through the
crafting of a wide variety of unencumbered market and spectrum block sizes. We had the
opportunity to help foster the development of a fourth, fifth or sixth new broadband pipe offered
perhaps by small town entrepreneurs or new regional players. In fact, we’ve heard from a broad
array of companies, and an overwhelming number of Members of Congress on this important
point. Unfortunately, the encumbered spectrum structure supported by the majority will force
large wealthy bidders away from the Upper Band and into the smaller, unencumbered blocks in
the Lower Band. Smaller players, especially rural companies, will be unable to match the higher
bids of the well-funded giants.
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Depriving the nascent 700 MHz market place of smaller new entrants will result in less
innovation and competition, not more. Consumers could be short-changed as a result. And it is
small new entrants that should be as important to this equation as large new entrants. Pinning
our hopes on a single national “white knight” to offer only one new pipe is risky at best. And
keep in mind that the Commission’s rules do not prevent any bidder from offering any kind of
new application or functionality, including device portability, or from aggregating smaller
market sizes to forge a national footprint, as we witnessed with last summer’s Advanced
Wireless Services auction. Throughout this proceeding, I have not heard a convincing argument
refuting why wealthy Silicon Valley new entrants are not as capable of bidding on
unencumbered spectrum as other wealthy companies. More importantly, I remain unconvinced
that the Commission must favor large companies over smaller entrepreneurs. Why not give both
an equally fair shot with one open, condition-free auction that offers varied market and spectrum
block sizes?
Curiously, however, in an effort to favor a specific business plan, the majority has
fashioned a highly-tailored garment that may fit no one. It’s not what Silicon Valley wants; it’s
not what smaller players have told me they want; and it’s not what rural companies want. To
date, the Commission has received no assurances that any company is actually interested in
bidding on the encumbered spectrum. Not one. The majority recognizes the risk that the
encumbrances pose by taking the unprecedented step of designing a fall-back “Plan B” auction in
the event the first auction fails. Perhaps the majority has only little more confidence in its plan
than I do.
If this new regulatory regime is all in the name of fostering device and application
portability, I want consumers to know that the seeds of these offerings are already germinating.
The wireless market is starting to deliver device and application portability because it has been
allowed to function freely and has been responsive to consumer demand. For example, over the
past couple of years, wireless carriers have offered at least ten different phones that are
compatible with any Wi-Fi network. This capability allows consumers to navigate the Internet
just as they can on their home computer, and download software such as voice over Internet
protocol applications, or popular search engines.
Savvy consumers may be the only ones who are “in-the-know” today, but they are the
early adopters who are paving the way for the rest of us laggards. Further, these business
developments are by no means the end of the innovation that is rising above the horizon, but the
beginning of a brighter revolution that is already dissolving walled gardens across all platforms.
Just ask America Online about the long-term viability of a walled garden strategy. So, I’m not
sure it makes sense for the majority to take credit today for spurring device and application
portability when it’s sprouting on its own.
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The new regime adopted today is being imposed against the backdrop of a vibrant
wireless market. Just last fall, in our 2006 Wireless Competition Report,2 all five of us concluded
that it was healthy, open and competitive. There, we noted that, over the last 13 years, wireless
subscriber growth has grown exponentially and competition among numerous providers has
flourished. Ninety-eight percent of the total U.S. population continues to live in counties where
three or more different operators compete to offer wireless service, while nearly 94 percent of the
U.S. population continues to live in counties with four or more different operators competing to
offer service.3 At the same time, prices are decreasing. Our report estimates that revenue per
minute (RPM) declined 22 percent in 2005 alone.4 RPM currently stands at $0.07, as compared
with $0.47 in December 1994 – a decline of 86 percent.5
It is interesting that today’s Order does not cross reference or otherwise discuss the
Federal Trade Commission’s recent unanimous and bipartisan finding that there is no need for
net neutrality regulations like the ones imposed today.6 Only one month ago, the FTC’s Internet
Task Force recommended that policymakers proceed “with caution before enacting broad, ex
ante restrictions in [the] unsettled, dynamic environment” of broadband Internet access.7
Specifically, the report concludes that the effect of potential conduct by broadband providers on
consumer welfare is “indeterminate.”8 The report adds, “No regulation, however well-intended,
is cost-free, and it may be particularly difficult to avoid unintended consequences here, where the
conduct at which regulation would be directed largely has not yet occurred,”9 and cites growing
consumer demand, increasing access speeds, falling prices, and new market entrants as evidence
that competitiveness in the broadband Internet access industry is moving in the right direction.10
Today’s Order offers no evidence to refute the FTC’s findings and conclusions. Furthermore,
the FCC should heed the FTC’s warning about the unintended consequences of unnecessary
regulation.
Perhaps most surprisingly, today’s Order acknowledges that the Commission need not
decide whether competition is sufficient enough to refrain from imposing open access
requirements in this proceeding because these questions are being considered more broadly
elsewhere. Despite this express acknowledgement, however, the majority seeks to “encourage
2
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, WT Docket No. 06-17,
Eleventh Report, 21 FCC Rcd 10, 947 ¶ 2 (2006).
3
Id. at 10,964 ¶ 41 (2006).
4
Id. at 11,008 ¶ 154.
5
Id.
6
Federal Trade Commission, Internet Access Task Force, Broadband Connectivity Competition Policy FTC Staff
Report (rel. June 27, 2007).
7
Id. at 9.
8
Id. at 157.
9
Id. at 155.
10
Id.
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additional innovation and consumer choice” and “spur the development of innovative products
and services” by encumbering the C Block license. At the same time, the Order does not dismiss
or otherwise dispose of the pending Skype Petition.11
Moreover, the majority’s decision to impose “open access” requirements on the C Block
licensee represents a sharp departure from well-settled FCC precedent. First, the decision runs
contrary to the market-driven framework established by Congress. Starting at least as early as
1994, the Commission established as a principal objective the goal of ensuring that unwarranted
regulatory burdens are not imposed upon any wireless providers.12 Just this year, I was pleased
to support the Commission’s action to classify wireless broadband Internet access service as an
information service because our determination will maximize innovation and consumer benefits
as wireless services continue to flourish and evolve. By dictating how spectrum must be used,
the majority is locking the Commission into a particular approach that is not guaranteed to work
but is guaranteed to be nearly impossible to change.
Some say that Carterfone-style regulations are appropriate for application to today’s
wireless marketplace because application of that policy revolutionized the wireline
marketplace.13 Before arriving at the Commission, I spent my entire career counseling wireline
entrepreneurs. There is a world of difference between the wireline industry of the 1960’s and
today’s wireless market.
First, the AT&T of the 1960’s was a nearly 100-year-old government protected and
subsidized monopoly. By any measure, today’s U.S. wireless service providers lack market or
monopoly power, as this Commission concluded just 10 months ago.14 Second, unlike wireline
voice services offered in the 1960’s, today’s U.S. wireless service providers have never
integrated into the applications or equipment markets. Third, under common antitrust analysis,
today’s wireless providers lack the ability to exercise buying power over upstream handset
suppliers, of which there are many competitors, which wield significant countervailing selling
power. Fourth, wireless service providers are not subject to price regulation in the market in
which they are alleged to have market power, which otherwise might encourage them to seek
profits in complementary markets.15
11
See Skype Communications S.A.R.L.; Petition to Confirm A Consumer’s Right to Use Internet Communications
Software and Attach Devices to Wireless Networks, RM-11361 (filed Feb. 20, 2007).
12
See Implementation of Sections 3(N) and 332 of the Communications Act Regulatory Treatment of Mobile
Services, Second Report and Order, 9 FCC Rcd 1411, 1418 ¶15 (1994).
13
See, e.g., Skype Petition.
14
As of Dec. 2005, the market power of Cingular Wireless (now AT&T) is 26.8 percent and that for Verizon
Wireless is 25.4 percent. See 2006 Wireless Competition Report at Table 4. See also Interconnection and Resale
Obligations Pertaining to Commercial Mobile Radio Services, Fourth Report & Order, 15 FCC Rcd 13523, 13528 ¶
12 (2000) (explaining that “Carterfone involved AT&T, the dominant provider of telecommunications at that time
…. [t]hus, the Commission has not applied principles established there to interconnection to carriers without
significant market power, such as CMRS providers”).
15
See ROBERT W. HAHN ET AL., THE ECONOMICS OF “WIRELESS NET NEUTRALITY” (AEI-Brookings Joint Center
for Regulatory Studies 2007).
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Others cite the European wireless marketplace as the one the U.S. should emulate. A
closer look reveals that the European scenario isn’t so rosy. First, as noted earlier, in our 2006
Wireless Competition Report, the Commission found that, in addition to the four nationwide
mobile telephone operators in the U.S., several large regional operators and a significant number
of mobile telephone operators with smaller footprints compete in many regional and local U.S.
markets.16 In contrast, in Western Europe, national mobile operators do not face competition
from smaller facilities-based carriers like they do in the U.S.17 The top two competitors in
Germany and Italy, for instance, have a combined market share of 74 percent.18 In Finland, the
combined share is 85 percent.19 Whereas the FCC has consistently resisted broadly imposing
technology mandates, European regulators mandated the use of a single technology: GSM.
Given the dearth of choice among carriers and technologies, European per minute rates are high
– approaching 22 cents per minute. Roaming rates from country-to-country are even worse –
sometimes $1.50 per minute. Additionally, up front costs to consumers are much higher there
than here.
I have also heard that today’s action is just like the Commission’s adoption of Wireless
Local Number Portability (LNP) requirements in 2003. I disagree. First, the Commission
mandated LNP only after years of attempts to broker negotiations between industry and
consumers ended in failure. No such effort at negotiation has been attempted here. On a
substantive level, LNP does not involve complicated network management issues like device and
application portability does. Instead, LNP is completed through a simple computer dip, which
has nothing to do with the complexities of a carrier’s network. Finally, without knowing what
standard(s) the C Block licensee will adopt, it is unclear in today’s Order whether its customers
will be able to port to other networks. I wonder whether this will lead the Commission down the
path of imposing a European-style technical standard.
With respect to auction reserve prices, I believe these are best left to market forces. Like
artificial conditions, reserve prices have the effect of skewing the auction and hindering the
efficient allocation of spectrum. The problem with setting reserve prices is that it puts the
Commission, rather than the market, in the precarious position of identifying the right value for
the spectrum.
Finally, I am disappointed that the majority has rushed headlong to regulate with scant
evidence in the record and without undertaking a sincere effort to try to bring together consumer
groups, industry and all interested parties to broker a private sector solution to any perceived
imperfections. The Commission has a long and proud history of meeting similar challenges in
such a positive and constructive way. I wish we had done so here.
16
See 2006 Wireless Competition Report, 21 FCC Rcd at 10,967 ¶ 50.
17
Id.
18
Id. at 10,967 ¶ 51.
19
Id.
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For these reasons, I respectfully cast my very first dissent in part. Specifically, I dissent
from Sections III.A.2.a.iii. (Open Access) and III.A.3.d. (Reserve Prices) of today’s Order.
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| File Type | application/pdf |
| File Title | 69000 |
| File Modified | 2007-08-10 |
| File Created | 2007-08-10 |